Charles Eigbe V. Ajoke Elizabeth Eigbe (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

SIDI DAUDA BAGE, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of Hon. Justice E. O. Williams-Dawodu (Mrs.) sitting at the High Court of Lagos State, Ikeja Judicial Division, delivered on the 29th of December, 2009 in which the Appellant was the petitioner. The notice of Appeal filed by the Appellant to initiate this action is dated 4th January, 2010 and contains five (5) grounds of appeal.

The summary of the background facts to this action is as follows:-

The Appellant married the Respondent in the year 1991, and they wedded in the Methodist Church, Oshodi: They have two (2) children of the marriage, Eigbe Regina Otibhor Anuoluwapo born on the 23rd day of November, 1994 and Eigbe Obehi Opeoluwapo born on the 24th day of February, 1997. In the year 2001, the Respondent started misbehaving in such a way that the Appellant could not condone it. The Appellant claimed that the Respondent was keeping concubine while he was on transfer by his company. The Appellant stated that he found a message sent to her (the Respondent) by the said concubine and upon been confronted by the Appellant, the Respondent decided to stay on her own and of cause which was not protested by the Appellant.

But in 2006, the Respondent began issuing threats to the Appellant filed a petition at the lower court and asked for a decree of dissolution of marriage, being that the marriage has broken down irretrievably. The Respondent filed an answer and a cross petition. While the case was still pending the Respondent took the two children of the marriage to London and abandoned them there. The Appellant filed a motion dated 1st of November, 2007 to enable him bring the children back to Nigeria and present them before the court. The application was granted.

The Appellant also filed another motion to amend the petition to add a prayer to relief sought as a second prayer for the custody of the children, since the welfare department in London said that they would release the children if the Appellant has judgment to that effect. The order was granted unopposed because it was undefended. After the amendment, the Appellant closed his case and the matter was adjourned for address, neither the Respondent nor her Lawyer showed up thereafter. The Appellant at the lower court reduced his submission in writing, and part of the judgment was against the Appellant, hence this appeal.

From the Notice of Appeal containing five (5) grounds of Appeal ascertainable from pages 121 – 124 of the Record of Appeal therein after simply called the Record, the Appellant distilled the following four (4) issues for determination as follows:-

1) Whether the learned trial judge is right by saying in his judgment that the petitioner/Appellant did not prove the grounds relied upon for the petition for divorce.

2) Whether the learned trial judge is right in granting a maintenance award to the Respondent who willfully took the children of the marriage away to London without the consent of the Appellant.

3) Whether the learned trial judge is right by hanging part of the judgment or abandoning delivery judgment in the relief sought by the Appellant as regards to the custody of the two (2) children of the marriage.

4) Whether the learned trial judge is right in ordering the Appellant return property that was not mentioned in one of the letters as Exhibit CE 4 dated 6th December, 2004, captioned for record purposes (where by the Respondent in his cross petition in the Lower Court listed the property she left in the house and also make a vital comment in respect of the said property.

In a motion on Notice dated and filed 7/3/11, the Appellant sought for, and obtained the order of this court for the appeal to be heard on the Appellant’s brief of argument alone, the Respondent having failed to file Respondents brief of argument and the time allowed to do so having expired. The motion was granted by this court on the 13/6/11. This appeal therefore shall be determined based on the Appellant’s brief of argument alone.

ISSUE ONE(1)

In arguing his issue No.1, the learned counsel to Appellant submitted that, the judge at the lower court held the Appellant did not prove the grounds relied upon for the petition for divorce. We state that the Appellant proved his case beyond preponderance of evidence. The Appellant in his testimony stated that he intercepted the message from the Respondent’s lover with the word “Dear Love, I love to hear you voice, pin in this number.” The Appellant also said that they quarreled in the church when he noticed that she called her male friends. The petition was instituted not only because of the message but that the Appellant made inquiries and the Respondent made confessions confirming the truth in the allegations.