Esther Mueller V. Werner Mueller (2005)

LawGlobal-Hub Lead Judgment Report

JOHN AFOLABI FABIYI, J.C.A.

A

s extant in Exhibit A, certificate of marriage, the parties herein got married at the Port Harcourt City Council, on 6th June, 1989. When the marriage headed for the rock, the Respondent petitioned and prayed, inter alia for the dissolution of the marriage and equitable partition of properties jointly owned. The Appellant reacted and prayed for dismissal of the petition. She also cross-petitioned for a dissolution of the marriage. Both petitions were heard at the High Court of Justice, Port Harcourt, Rivers State of Nigeria.

On 20/12/99, the learned trial Judge made an order of decree nisi dissolving the marriage. This was followed with an order partitioning the matrimonial property. The Appellant was ordered to return two generators to the Respondent, though the Respondent admitted that the generators had been returned. As manifest on Page 140 of the record of appeal, the drawn up order in respect of the judgment was signed by the learned trial Judge on the same 20/12/99.

As can be seen at pages 157-158 of the record of appeal, the learned trial Judge, on 15th February, 2000, further granted the undeveloped part of the premises in dispute to the Respondent. Such was geared at correcting an omission in the judgment entered on 20/12/99.

The Appellant felt unhappy with the two decisions of the lower Court. Two Notices of Appeal were filed on her behalf. The Notice of Appeal in respect of the judgment entered on 20/12/99 was accompanied by seven (7) grounds of appeal. One additional ground of appeal was, with the leave of this court, filed on 29/1/01. As against the ruling of 15/2/2000, amending the judgment delivered on 20/12/99, the Appellant also filed a Notice of Appeal accompanied by a ground of appeal.

In respect of the appeal filed against the judgment of 20/12/99, the three issues couched for it’s determination read as follows:

“(i) Whether the learned trial Judge was justified in law, in arriving at the findings of facts/conclusions she made in favour of the respondent, without first appraising or evaluating the evidence led before her.
(ii) Whether the learned trial Judge was justified in law, in ordering the Appellant to return the two generators to the Respondent, whereas the respondent had admitted the return of the said generators.
(iii) Whether the learned trial Judge was justified in law, when she failed to consider the Appellant’s cross-petition.”

In respect of the appeal against the ruling handed out on 15-2-2000, the issue for determination, as distilled, reads as follows;-

“Whether the learned trial Judge had jurisdiction to amend the earlier judgment, delivered on 20/12/99, and to have entered a second judgment on 15/2/2000 awarding additional but unclaimed relief to the Respondent.”

On behalf of the Respondent, the two issues formulated for a due determination of the appeals read as follows:-

“1. Was the trial Judge right in the orders made on 20/12/99, including the order dissolving the marriage having regard to all the evidence before the honourable court?
2. The subsequent order made on 15-02-2000 to correct an omission in the judgment – was it proper and based on available evidence? If not, what is the Proper order in the circumstances?”

Let me say it without any equivocation that it is clear beyond peradventure that the marriage, which had the semblance of a farce, had broken down irretrievably to the knowledge of both parties. No collusion in filing the petition and cross petition was pinpointed by the learned trial Judge. I cannot also pinpoint any collusion to put the marriage at an end by the parties who appeared to be incompatible.
The Appellant was a cleaner with the hotel where the Respondent, a rig operator and a German citizen, lodged when they met. This was before the marriage which later became ill-tuned and clearly incongruous. The marriage was put to an end via an order of decree nisi by the learned trial Judge. It was a real good riddance and none of the parties raised any finger of protest in this respect. The ferocious complaint relates to the partition of matrimonial property, as ordered by the learned trial Judge. This shall be dealt with anon.

Before then, let me treat issue No. 2 formulated on behalf of the Appellant. It is whether the learned trial Judge was justified in ordering the Appellant to return two generators to the Respondent who had admitted the return of the two generators by the Appellant.