Eno Bassey Ekanem V. Engr. Ekanem Bassey Ekanem & Anor (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

UZO I. NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the High Court of Cross River State Holden in Calabar delivered on 28th June, 2010.

The Appellant a retired banker from U.B.A and the 1st Respondent an engineer, contracted their marriage on 25th July, 1981 of the Marriage Registry Lagos, Nigeria according to the Marriage Act. The 1st Respondent on 11th November, 2005 filed a petition seeking the dissolution of their marriage on grounds of (a) Cruelty (b) Intolerable behaviour/Incompatibility (c) Cessation of conjugal rights since 1996.

The couple had been living apart since 1996 and the 1st Respondent believes that the marriage has broken down irretrievably. The 1st Respondents therefore sought the following orders.

A decree of Dissolution of the marriage between the Petitioner and the respondent on the ground that the marriage has broken down irretrievably.

The Respondent cross petitioned on the 22nd June, 2006 and sought the following orders.

That the marriage be dissolved on the ground that it has broken down irretrievably on the reason that the 1st Respondent committed adultery with the Co-Respondent and the behaviour which is unreasonable that the Petitioner could not tolerate.

Claims jointly and severally from the respondent and Co-respondent the sum of N5, 000,000.00 as compensation for the adultery committed by the Respondent with the Co-Respondent while the marriage between the Petitioner and 1st Respondent is still subsisting. Order for the sharing of the property jointly acquired by both parties except the property at Kaduna where the Petitioner is currently residing as the Petitioner has no other building in Nigeria to reside and same be declared to be given to the Petitioner as part of her shares of the property.

At the end of the trial, the learned trial Judge held as follows.

“That the marriage celebrated between the Petitioner and the Respondent/Cross Petitioner on the 25th July, 1981 of the marriage Registry of Lagos, in Nigeria as no 0.799/81 is hereby dissolved and I grant a decree Nisi to the Petitioner which shall be made absolute upon application on the expiration of three months from the date hereof”.

Being dissatisfied, the cross Petitioner/Appellant filed a notice and 4 grounds of appeal. The appellant also sought the following reliefs.

“An order setting aside the entire judgment of the Court including the order Nisi granted the petitioner and remitting the case back to the High Court for hearing before another Judge”.

The Appellant filed her appellant’s brief on 3rd November, 2010 Also an Appellant’s Reply brief was filed on 12th May, 2011 and deemed properly filed and served on 7th June, 2011.

The appellant articulated only one issue for determination and it reads as follows:-