Elizabeth Ihuoma Izubuike V. The Customary Court Obingwa Holden At Agalaba & Ors (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

FREDERICK OZIAKPONO OHO, J.C.A. (Delivering the Leading Judgment)

In Suit No: CC/AG/7/2006 at the Customary Court Obingwa, the Petitioner and 3rd Respondent’s Claim in a Petition for the dissolution of his Marriage endorsed thereon is as follows;

1. An Order of the Honourable Court for the dissolution of the Customary Marriage contracted between the Petitioner and the Respondent in October, 2000.
2. An Order of the Honourable Court granting the Petitioner guardianship of the Children of the who being minors are staying with their mother/Respondent.
3. And for such further Order or Orders as the Honourable Court may deem fit to make in the circumstances.

The 3rd Respondent as Petitioner in the Lower Court filed for dissolution of the marriage between the Appellant and himself at the Customary Court, Obingwa, and sitting at Agalaba. Plea before that Court was taken on the 4-3-2006 wherein the Appellant as Respondent pleaded liable to the 1st arm of the claims. The case was adjourned for hearing and on four consecutive subsequent adjournments, the Appellant as Respondent before the Lower Court was absent in Court and the

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case adjourned at her instance. On 22-6-2006 the 3rd Respondent as the Petitioner testified for himself and called no witness and the case was adjourned to 26-6-2006 for cross-examination by the Respondent. On the said 26-6-2006, the 3rd Respondent/ Petitioner was present but the Appellant/Respondent was absent and no reason was adduced for her absence. The case was further adjourned to the 3-7-2006 for cross-examination of the 3rd Respondent/Petition. On the 3-7-2006, both parties were present and Appellant/Respondent obstinately decline to cross examine the Petitioner saying that she is over and done with the marriage. The Petitioner/3rd Respondent then applied for adjournment to enable him make peace in the matter.

The trial Customary Court adjourned the matter to the 2-8-2006 for report of settlement/judgment. On the 1-11-2006 the trial Customary Court gave judgment dissolving the marriage between the Appellant and the 3rd Respondent and granted custody of the three (3) children of the marriage to the Appellant to be returned to the 3rd Respondent on attainment of six (6) years of age. The Court further awarded the sum of N4,000.00 (Four Thousand

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Naira Only) against 3rd Respondent to the be paid to the Appellant for the upkeep of the children while in custody of the Appellant. The Appellant, in contending that the trial Customary Court gave her no opportunity to defend herself, she applied to the High Court of Abia State Obingwa Judicial Division for Judicial Review for an application of a writ of Certiorari to quash the proceedings and judgment of the 1st and 2nd Respondents. The said application was refused on the ground that the Appellant having pleaded liable to the 1st arm of claim for dissolution of marriage and pleaded not liable to the 2nd arm which is for custody, that it was needless to give him an opportunity to open her defense and possibly call evidence and witnesses.

Thoroughly aggrieved with the decision of the High Court of Abia State, sitting at Obingwa and delivered by Hon. Justice S. F. Analaba on the 22nd day of February, 2010, the Appellant/Respondent has appealed to this Court vide a Notice of Appeal filed on the 12-3-2010. In the Notice of Appeal, there are three (3) Grounds of Appeal filed, which are reproduced without their particulars as follows;

GROUNDS OF

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APPEAL:

1. The learned trial Judge erred in law when he refused the Appellants application for certiorari quashing the proceedings together with the judgment of the Customary Court Agalaba delivered on 1-11-2006.
2. The learned trial Judge erred in law when it held that there was no evidence of breach of Appellant?s fair hearing by the trial Customary Court (1st and 2nd Respondents).
3. Further Grounds will be filed upon receipts of the records.

SOLE ISSUE FOR DETERMINATION:

There is identified only an issue by the Appellant for the determination of this Court as follows; “Whether the Appellant’s right to fair Hearing was breached”. On the part of the 3rd Respondent only an issue was also identified for the determination of this Court, to wit;