Ahmad Moktar Jabre V. Mrs Dorra Jabre (1999)

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VICTOR AIMEPOMO OYELEYE OMAGE, J.C.A.

The Respondent to this appeal filed an application in the Court below against the Appellant under the Matrimonial Causes Ace, 1970 Caps 220 Laws of the Federation of Nigeria. Sections 16(1)(70), 70(2), 72(1) & (2) 73(1) a-h and under order XIV rules 7(1), 8(1) (b) of the said law and sought the followings:

“(1) An order for the payment of maintenance fee from the 13th day of December, 1996 by the Respondent to the petitioner pending the final determination of this petition.

(2) An order directing the Respondent to pay maintenance fee “embloc” see, from the 13th day of December, 1996 to 31st day of July, 1997 and thereafter on a monthly basis from August 1997 pending the disposal of this petition.

(3) An order, mandating the Respondent to pay maintenance fee directly to the petitioner.

(4) An order directing the Respondent to provide security for the payment (sic) (of) the maintenance pending the disposal of this (sic) petition.

(5) An order of interlocutory injunction restraining the Respondent, his agents, servants, privies by whatever names called from selling or parting with the property known and lying and situate at No.172 Mission Road Kano until final determination of this petition. And such further orders or any other order that the Justice of the court might demand.

The application was supported by an affidavit. The learned trial court considered exhibit AA” attached to the further and better affidavit of the Respondent, which is a declaration of marriage dated 26th January, 1995. It states as follows:

“In the magistrate Court of Kano State holden at Kano. Declaration of Marriage, I Ahmad Moktar Jabre, Male Muslim, Canadian Passport No.WA296551 and Lebanese Passport No.505228 of Mission Road Kano do make the following declarations:

1. That I have married former Miss Dorna Mohammed Kodiath,
2. That she was separated and divorced from her husband Chafie A1 Mokaddem
3. That our marriage was celebrated on 26th day of January, 1995 at Kano Municipal Registry.
4. That a copy of the said Dorna Mohammed Kodiath declaration of marriage to me is attached and marked exhibit B.
5. That a copy of the marriage certificate is attached marked exhibit C.

Upon the above the trial court ruled as follows: Although I will not dream of considering the merits of the petition at the moment, nevertheless the applicant has asked for some interim reliefs before the hearing and determination of this court which I have to consider. One of the issues for consideration as well considered in KOTOYE V CBN 1989 Supra is whether there is a prima facie case in line with the prayers which are asked for.

From the above quoted declaration of marriage sworn by the Respondent and the writ of petition taken only by the petitioner I am satisfied the procedure for the grant of the application as set out in KOTOYE V CBN 1989 Supra have been complied with. Lastly I have gone through the counter affidavit of the Respondent coupled with his submission of the learned counsel, Mr Abe and they are rendered nugatory by the above quoted exhibit supra.” The submission of the learned counsel for the Respondent at the affidavit quoted in the ruling is as follows:

1. That it is premature to grant the application at this stage as his reliefs are substantive.
2. The presumption of a valid marriage is questionable.
3. The person sought to be restrained by prayer is not the Respondent himself but a company which has not been joined as a party.
4. That upon the authority of KOTOYE V CBN Supra this court cannot consider the merit of this case at this stage”.

As stated above the trial court granted all the prayers sought as prayed. Hearing in the petition for an order for maintenance, restitution of conjugal rights and specific performance against the Respondent/Appellant had not commenced. Being dissatisfied with the ruling of the court below the Respondent/Appellant has now appealed to this court. Prior to this, appellant filed in this court an application for extension of time which was allowed, and thereafter filed notice of appeal of six grounds. In accordance with the rules of this court appellant formulated five issues for determination as follows:

1. whether the learned trial Judge was right in applying the principles of law enunciated in case of KOTOYE V CBN Supra 1989 2 NWLR Pt 98 419 to the instant case when the facts and circumstances of the two cases are different.
2. whether the findings and conclusion made by the learned trial Judge in his interlocutory ruling did not amount to decisions on substantive issues.
3. whether the learned trial Judge did not act perversely and in error when he exercised his discretion in favour of the Respondent by granting all the reliefs sought by the Respondent in the application.
4. whether it was proper for the learned trial Judge to reach a decision on the interlocutory application without calling oral evidence to resolve the irreconcilable conflicts in the affidavit of the parties.
5. whether the learned trial Judge properly evaluated the copious affidavit evidence of the parties before reaching a decision.

The learned counsel for the appellant in his brief has submitted on the issues for determination which covers four of the five grounds of appeal in this case, by saying when the various affidavits and counter affidavits are placed together, the issues to be determined are:

i. whether or not there was an existing marriage between the parties in the peculiar circumstance of this case.