IN THE HIGH COURT OF JUSTICE OF LAGOS STATE

IN THE IKEJA JUDICIAL DIVISION

HOLDEN AT IKEJA
PETITION NO:………………………..
MOTION NO……………….
BETWEEN
IFESINACHI CYNTHIA ONYENUFORO ……………. PETITIONER/APPLICANT

AND
EZEUGO KINGSLEY ONYENUFORO …………….. RESPONDENT

MOTION EX-PARTE

BROUGHT PURSUANT TO ORDER VI RULE 7 (1) OF THE

MATRIMONIAL CAUSES RULES; ORDER 9 RULE 5 (1) & (2) OF THE
HIGH COURT OF LAGOS STATE (CIVIL PROCEDURE) RULES 2019
AND UNDER THE INHERENT JURISDICTION OF THIS HONOURABLE
COURT

TAKE NOTICE that this Honourable Court will be moved on the …… day of
…… 2023, at the hour of 9 O’clock in the forenoon or so soon thereafter as
Counsel may be heard on behalf of the Petitioner/Applicant praying this
Honourable Court for the following orders:

1. AN ORDER OF THIS HONOURABLE COURT granting leave to the

Petitioner to effect service of the Notice of Petition and other accompanying
documents on the Respondent via electronic mail to
KINGSLEYEZEUGO@GMAIL.COM;

Or in the alternative

2. AN ORDER OF THIS HONOURABLE COURT granting leave to the

Petitioner/Applicant to serve the Notice of Petition and all other
accompanying Court processes filed in this case, on the Respondent by
substituted means to wit: by pasting same on the premises at No. 27, Abebi
 street, Asbestos bus stop, off Ayetoro Rd, Ogun State, being the last
known place of abode of the Respondent;

3. AN ORDER OF THIS HONOURABLE COURT deeming such service

as good and proper service on the Respondent;

4. AND FOR SUCH FURTHER ORDER OR OTHER ORDER OR

ORDERS as this Honourable Court may deem fit to make in the
circumstance of this case.

GROUNDS UPON WHICH THIS APPLICATION IS BROUGHT ARE

AS FOLLOWS:
i. Since the Respondent deserted the Petitioner in September 2022, the
Petitioner has neither heard from nor seen the Respondent and does
not know his whereabouts;
ii. All attempt by the Petitioner to reach out to the Respondent and notify
him about the pendency of the Petition proved abortive as the
Respondent avoids the Petitioner and never wants to hear from her
anymore;
iii. It is not reasonably practicable to effect service of the Notice of
Petition and other accompanying documents filed in the said Petition
on the Respondent, in the manner specified in paragraph (a) to (d) of
Rule 1 of Order VI of the Matrimonial Causes Rules;
iv. The Petitioner requires the Leave of this Honourable Court before
service of the Notice of Petition and other accompanying documents
filed in the Petitioner can be effected on the Respondent by
substituted means, personal service being impracticable;
v. Any service of the Notice of Petition and all other accompanying
documents filed in this case on the Respondent without leave of this
Honourable Court is improper service, hence null.

Dated this ________ day of _____________, 2023.

 ____________________
Suleiman Haliru, Esq.,
V. N. Ilodigwe, Esq.,
O. C. Oseni, Esq.
(Petitioner/Applicant’ Counsel)
OSHAEM ATTORNEYS LP.,
No. 325, Newlayout, Lokoja,
Kogi State.
Oshaempartnershiplimited@gm
ail.com
+2348039446284;
+2347086478358.

NOT MEANT FOR SERVICE

 IN THE HIGH COURT OF JUSTICE OF LAGOS STATE
IN THE IKEJA JUDICIAL DIVISION
HOLDEN AT IKEJA
PETITION NO:………………………..

MOTION NO……………….

BETWEEN
IFESINACHI CYNTHIA ONYENUFORO ……………. PETITIONER/APPLICANT

AND
EZEUGO KINGSLEY ONYENUFORO …………….. RESPONDENT

AFFIDAVIT IN SUPPORT OF THE MOTION EXPARTE

I, Ifesinachi Cynthia Onyenuforo, Nigerian, adult and Christian of No. 5, New

London street, beside Shalom School, Iyana Ipaja Rd, Lagos state do hereby make
oath and state as follows:

1. That I am the Petitioner in this case by virtue of which position I am

conversant with the facts leading up to this application;
2. That I instituted this Petition for a Decree of dissolution of the marriage
between the Respondent and I;
3. That I do not know the whereabouts of the Respondent who deserted me
over a year ago and have never contacted me;
4. That various attempts at locating and getting the Respondent’s address for
service proved futile;
5. That in the circumstance, it is not reasonably practicable for the Notice of
Petition and all accompanying documents filed in this Petition, to be served
on the Respondent personally
6. That I know as a fact that the Respondent is avoiding me and warned me not
to try to locate him or find him whatsoever;
7. That leave of this Honourable Court is required to enable me serve the
Notice of Petition and other accompanying court processes filed in this suit,
on the Respondent by substituted means;
 8. That the Notice of Petition and all other Court processes filed in this suit
cannot be adequately served on the Respondent through substituted means,
without first seeking and obtaining the leave of this Honourable Court;
9. That the Respondent would be unaware of the pendency of this Petition if
service of the Notice of Petition is not effected on him;
10.That service of the Notice of Petition and other accompanying documents
filed by the Petitioner/Applicant must be effected before this Honourable
will exercise jurisdiction over the Respondent;
11.That this Honourable Court may order the Notice of Petition and all other
processes filed in this suit to be served on the Respondent by substituted
means, even without first making an attempt at personal service;
12.That by pasting the Notice of Petition on a conspicuous part of the premises
at No. 27, Abebi street, Asbestos bus stop, off Ayetoro Rd, Ogun State, the
Respondent will become aware of the pendency of this matter before this
Honourable Court;
13.That I will be seriously prejudiced and distressed-if this application is not
granted and the Respondent is not served with the Notice of Petition and
other accompanying documents-because the Respondent has moved on with
his life and I wish to forge ahead with my life as well;
14.That the Respondent will not be prejudiced in any way if this application is
granted, since he will have the opportunity of answering to the Petition;
15.That I depose to this affidavit in utmost good faith, conscientiously believing
same to be true and correct and in accordance with the Oath Act, 2004.

__________
DEPONENT

SWORN TO AT THE LAGOS STATE HIGH COURT REGISRTY, IKEJA

THIS _____ DAY OF ________, 2023

BEFORE ME

_________________

COMMISSIONER FOR OATH

 IN THE HIGH COURT OF JUSTICE OF LAGOS STATE
IN THE IKEJA JUDICIAL DIVISION
HOLDEN AT IKEJA
PETITION NO:………………………..

MOTION NO……………….

BETWEEN
IFESINACHI CYNTHIA ONYENUFORO ……………. PETITIONER/APPLICANT

AND
EZEUGO KINGSLEY ONYENUFORO …………….. RESPONDENT

WRITTEN ADDRESS IN SUPPORT OF THE MOTION EXPARTE

1.0INTRODUCTION

1.1 Your Lordship, this is an application brought by way of a Motion Exparte

pursuant to Order VI Rule 7 (1) of the Matrimonial Causes Rules; Order 9
Rule 5 (1) and (2) of the High Court of Lagos State Civil Procedure Rules,
and under the inherent jurisdiction of this Honourable Court. The Applicant
is praying this Honourable Court for the following orders:

1. AN ORDER OF THIS HONOURABLE COURT granting leave to the

Petitioner to effect service of the Notice of Petition and other
accompanying documents on the Respondent by substituted means via
electronic mail to kingsleyezeugo@gmail.com.

Or in the alternative

2. AN ORDER OF THIS HONOURABLE COURT granting leave

to the Petitioner/Applicant to serve the Notice of Petition and all
other accompanying Court processes filed in this case, on the
Respondent by substituted means to wit: by pasting same on the
premises at No. 27, Abebi street, Asbestos bus stop, off Ayetoro
 Rd Ogun State, being the last known place of abode of the
Respondent;

3. AN ORDER OF THIS HONOURABLE COURT deeming such

service as good and proper service on the Respondent, and;

4. AND FOR SUCH FURTHER ORDER OR OTHER ORDER

OR ORDERS as this Honourable Court may deem fit to make in
the circumstance of this case.

1.2The Motion is supported by an affidavit of 15 (fifteen) paragraphs deposed to by

Ifesinachi Cynthia Onyenuforo, the Petitioner/Applicant in this suit. We
humbly rely on all the averments contained in the said affidavit.

2.0ISSUE FOR DETERMINATION

2.1The lone issue formulated by the Petitioner/Applicant for determination by this
Honourable Court in respect of this application, thus:

“Whether having regard to the grounds and affidavit in support of

this motion, this Honourable Court has the power to grant the
instant application”

3.0 LEGAL ARGUMENT/SUBMISSIONS

3.1 The ground upon which this application is brought is that it is not reasonably
practicable for the Notice of Petition and other accompanying documents
filed in this case, to be served on the Respondent in the manner specified in
paragraphs (a) to (d) of Rule 1 of Order VI of the Matrimonial Causes Rules,
as all effort made by the Petitioner to locate the address for service on the
Respondent ended in futility and the Petitioner does not know the
whereabouts of the Respondent. It is on this premise that the Petitioner
desires to serve the Respondent through substituted means. However, the
Petitioner/Applicant cannot serve the court processes in this matter on the
Respondent by substituted means without first seeking and obtaining leave
and order of this Honourable Court to do so.
3.2 It is our humble submission that the essence of service of court processes on
a party to a suit is to bring to the knowledge of that party that a matter has
been instituted against him, so that he can come to court and defend himself
in the matter. Where service of the court processes have not been effected on
the Respondent or such service is done by substituted means without leave
of court where same is required as in the instant case, whatever proceedings
undertaken by the court will be declared null and void and the court will lack
the vires to entertain the matter. We humbly refer Your Lordship to the case
of ONONYE v. CHUKWUMA (2005) 17 NWLR Pt. 953 Pg. 90 at 115
paras. E – G where it was held as hereunder:

“What the law says is that failure to serve process where it is

required is one that goes to the root of the proper procedure in
litigation. Every party to litigation must be served with the writ of
summons, it is the service of the process that clothes the court
with jurisdiction to hear and entertain the case at hand.
It is truly a pre-condition for the Court’s exercise of its
jurisdiction, and the effect of failure to comply with this pre-
condition is that any proceedings embarked on by the court
would be declared a nullity.”

3.3 My noble lord, it is our further submission that this Honourable Court is
seized of power to grant an Order for substituted service to be effected on
the Respondent without an attempt at personal service, where the Court is
satisfied that personal service cannot be conveniently effected on the
Respondent. We most humbly refer the Court to the case of ZAKARAI v.
MOHAMMED (2017) 17 NWLR Pt. 1594 SC 181 at P. 227 (Para. F),
where the Court of Appeal held thus:

“A court may order substituted service either after or without an

attempt at personal service. The word ‘may’ makes room for the
exercise of discretion. It is an enabling and permissive word and
in that sense, it imposes or gives a discretional power.”

3.4 We also humbly submit that where it is satisfied that it is not

reasonably practicable to serve Court processes on the Defendant in a
 Suit, the Court can make an order for substituted service. See the case
of DIKE v. KAY-KAY CONSTRUCTION Ltd. (2017) 14 NWLR Pt.
1584 P. 102, paras. F – H.

3.5 We respectfully urge Your Lordship to so hold.

4.0 CONCLUSION

4.1 We submit humbly to this Honourable Court that in an application of

this nature, leave of Court is not granted as a matter of course but it is
within the discretionary powers of this Honourable Court to do so.
However, the Courts are enjoined to exercise discretionary powers
judicially and judiciously in either granting or refusing such
applications. In the instant case, the grant of this application is in the
best interest of the parties in order to comply with the principles of fair
hearing.

4.2 we therefore humbly urge this Honourable Court to grant all the
prayers of the Petitioner/Applicant as contained on the face of the
motion paper.

Dated this ________ day of _____________, 2023.

____________________
Suleiman Haliru, Esq.,
V. N. Ilodigwe, Esq.,
O. C. Oseni, Esq.
(Petitioner/Applicant’ Counsel)
OSHAEM ATTORNEYS LP.,
No. 325, Newlayout, Lokoja,
Kogi State.
Oshaempartnershiplimited@gm
ail.com
+2348039446284;
+2347086478358.

NOT MEANT FOR SERVICE