Akinremi Oritsewetin Nanna V. Mrs Ekpehose Maryanne Nanna (2005)

LawGlobal-Hub Lead Judgment Report

ABBA AJI, J.C.A.

This appeal is against the decision of Hon. Justice F.O. Akinbami of the Edo State High court holden at Benin City in suit No. B/875/2000 delivered on the 19th day of March, 2002 wherein the learned trial Judge dismissed the petitioner’s petition for dissolution of marriage, but granted the cross petition of the respondent for decree NISI and other ancillary reliefs.

The appellant who is a medical practitioner was the petitioner in the lower court. He petitioned the lower court for the dissolution of his marriage with the respondent/cross petitioner on the ground that the marriage has broken down irretrievably. He claimed inter alia in paragraph 17 of his amended petition, the following orders:-

“(a) A decree for dissolution of marriage on the ground that the marriage has broken down irretrievably.

(b) An order of the court granting the custody of the 2(two) children namely; Orode Nanna and Mofe Nanna to the petitioner as adequate arrangement has been made in this regard… Alternatively, an order granting the custody of the children to the petitioner whenever they are on holidays or the petitioner be allowed unrestricted access to the children without any interference from any body whatsoever.”

The grounds upon which the petition is founded is as contained in paragraph 11(a) and (b) of the amended petition. Paragraph 11(a) and (b) reads:-

“11. That the marriage between the petitioner and the respondent has broken down irretrievably upon the following:-

(a) That since the marriage, the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent.

(b) That the respondent has deserted the petitioner for a continuous period of at least 2 years immediately preceding the presentation of the petition and the respondent does not object to a divorce being granted.”

The respondent in response to the above, not only filed an answer but also cross petitioned on the ground inter alia for a dissolution of the marriage and custody of the two children.

The facts of the case was that the petitioner and the respondent/cross petitioner were married on the 9th day of November, 1991 at the St. James Anglican Church, Akpakpava Road, Benin City.

After the marriage, they both cohabited and lived together at the Petroleum Training Institute, Warri until October, 1992. From October 1992 to October, 1993, they lived and cohabited in London. They returned to Nigeria in October, 1993 and lived together until sometime in December, 1996 when the respondent left the matrimonial home and have lived apart for a period of more than four years proceeding the presentation of the petition. The two children of the marriage have been living with the respondent.

The petitioner at the trial testified in support of his claim and tendered several exhibits. He did not call any witness. Also, the respondent/cross petitioner testified and also tendered several exhibits to support her position. She too did not call any other witness. At the conclusion of evidence, the respective counsel addressed court. In a considered judgment delivered on the 19/3/2002, the learned trial Judge dismissed the petition and granted the respondent/cross petition decree NISI, custody of the children and other ancillary reliefs. This is what the trial Judge said in giving judgment to the respondent/cross petitioner:-

“I hereby dismiss the petition of the petitioner which has not been proved and grant a decree Nisi to the respondent on the basis of successfully proving the cross petition.