Lt. Col. Shehu Ibrahim (Rtd) V. Mercy Ibrahim (2006)

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OLUKAYODE ARIWOOLA, J.C.A.

This is an appeal against the decision of the Kaduna High Court delivered on 9th June, 2000 in the divorce petition of the Appellant

The facts of this case are that, the petitioner, herein after referred to as the Appellant, and the Respondent got married under the Act on 15th December, 1979. The marriage is blessed with four children, three females and one male. Both parties had cohabited in the following places: Military Cantonment, Jalingo, Gongola State; No. 12 Ogunlowo Street, Ikeja, Lagos; Nigeria Army Barracks Alamala, Abeokuta, Ogun State; and Flat 6, Block A, No. 8A, 2nd Avenue, Ikoyi, Lagos. The Appellant had taken out a petition at the lower Court against the Respondent herein and sought a decree for the dissolution of the marriage between him and the Respondent. The facts relied upon by the petitioner as constituting the ground leading to the breakdown of the marriage as specified in the petition include mainly:

(i) that since the marriage, the Respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the Respondent due to infidelity, idolatry and hostility.

(ii) that the parties to the marriage have lived apart for a continuous period of at least three years immediately preceding the presentation of the petition.

The petitioner testified and tendered a few documents that were admitted as exhibits but he did not call any other witness. The Respondent though filed an amended answer to the petition and a cross-petition, she later abandoned these and did not come forward to defend the petition or prosecute her cross-petition.

Upon being satisfied that the Respondent had had adequate notice of the hearing of the case, the trial Court proceeded to hear the case and in a considered judgment, the learned trial Judge dismissed the petition without any consequential order on the 2nd and 3rd legs of the petitioner’s prayer. Dissatisfied with the decision of the High Court, the Petitioner appealed to this Court against the whole judgment.

The Notice of Appeal dated 3rd July, 2000 but filed on 7th July, 2000 contained the following grounds herein reproduced without the particulars:

“Ground 1

The learned trial Judge erred in law by wrongly assessing issues not raised by the Petitioner both in his petition and oral evidence and basing his judgment on same.

Ground 2

The honourable Court misdirected himself in fact by wrongly rejecting evidence adduced by the petitioner and wrongfully substituting it with evidence not adduced at all by the petitioner.

Ground 3

The judgment of the Court is against the weight of the evidence made before it”