Dr. Maduike Ezeibe V. Mrs. Adaku Ezeibe (Nee George) (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

UWANI MUSA ABBA AJI, J.C.A. (Delivering the leading Judgment)

This is an appeal against the decision of the Customary Court of Appeal sitting in Umuahia, Abia State in a divorce suit in Appeal No. CCA/UM/21/2012 delivered on the 15th day of March, 2012.

In the Customary Court Mbawsi, in Isiala Ngwa North Local Government Area of Abia State, the Appellant as Petitioner in the trial Customary Court seeks for the following reliefs:

a) An order dissolving the marriage between the petitioner and the Respondent.

b) An order granting the custody of the four children of the marriage to the Petitioner.

The grounds of the petition are that the Respondent had exhibited acts of cruelty and infidelity towards him and that the marriage had broken down irretrievably as they lived apart for a period of three years.

Judgment was entered for the petitioner/Appellant on the 2nd day of August, 2010. The Respondent was dissatisfied with the decision of the trial court on the ground that she was not given a fair hearing.

The facts leading to this appeal as can be gathered from the records of appeal are that further hearing in the suit was adjourned to the 26th July, 2010, when PW1, the Petitioner was to continue with his evidence and for cross examination by the Respondent and also for the Respondent to open her defence.

On the hearing date, Learned Counsel for the Respondent informs the court of his observation that he wants the court to take judicial notice of. He says he observes that the entire court premises has been besieged by armed vigilante men and that they have come to maintain peace and that it was the Petitioner that invited them to come and maintain peace within the court premises.

Learned counsel stated that they are opposed to the invitation of the vigilante men by the petitioner to maintain peace in the court. He asked for adjournment as he cannot perform under the present atmosphere. The Appellant’s counsel opposed the application and urged the court to direct the vigilante to leave the court premises even though it admitted they were aware of their presence in court. The court declined the application for adjournment but directed the vigilante to vacate the court premises.

The Respondent counsel said he is no longer in the right frame of mind to continue with the matter and applied for a short adjournment to enable him recover from the shock of the development. The application was opposed to by the Appellant’s counsel. The trial court agreed and refused the adjournment and directed the PW1 (Appellant) to continue with his evidence to conclusion in the absence of the Respondent’s Counsel. The trial court then foreclosed the Respondent from cross examining the PW1 and also foreclosed her from entering her defence and adjourned the matter to the 2nd day of August, 2010 for judgment. It is against the said judgment as stated earlier that the Respondent appealed to the Customary Court of Appeal.

In a considered judgment delivered on the 15th day of March, 2012, the Customary Court of Appeal allowed the appeal of the Respondent, set aside the judgment of the customary court and remitted the case to the Customary Court of competent jurisdiction for trial de novo. In allowing the appeal, the lower court held as follows:

“It is my view and I hold that the order of the trial Customary Court foreclosing the defence under the circumstances is a violation of the Respondent/Appellant’s right to fair hearing. As the opportunity was not given to the Respondent/Appellant to present her defence, it follows that the judgment procured by the trial Customary Court is not supported by any evidence led by the Respondent/Appellant and I so hold…” See page 129 to 130 of the Records of Appeal.

It is against the said judgment that the petitioner/Appellant appeared to this court vide a Notice of Appeal dated and filed the 28th March, 2012 upon a lone Ground of Appeal which is hereby reproduced shorn of its particulars: