Mr. Dele Odusote V. Dr. (Mrs) Temitayo Odusote (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment)

The Appellant and Respondent in this appeal were husband and wife vide the marriage contracted in 1992 at a marriage registry in New Jersey, the United states of America. The union was blessed with three (3) children, but later had problems which resulted in the Respondent filing a petition against the Appellant at the F.C.T. High Court on the 8/10/04 for the dissolution of the marriage.

After the filing of answer and a cross petition by the Appellant also praying for the dissolution of the marriage, the Respondent amended and further amended her petition in which she sought for reliefs which included decree for dissolution of the marriage and order granting her custody of the children of the marriage.

Each of the Appellant and Respondent testified in support of their respective position as the only witnesses in the trial at the and of which the F.C.T. High Court dissolved the marriage and made order granting custody of the children to the Respondent in the judgment delivered on the 16/11/06.

The Appellant felt aggrieved and dissatisfied with the judgment and so filed an appeal against it vide a notice of appeal dated and filed on the 8/1/07 which appears at pages 312-313 of the record of appeal.

Because of their brevity, I can afford to set out the 6 grounds contained on the notice of appeal, without the particulars. They are thus:-

“(i) The decision of the learned trial judge to award the custody of the three children of the marriage to the Petitioner was not proper exercise of judicial discretion having regards to all the circumstances of the case.

(ii) The decision of the learned trial judge in the award of maintenance was arbitrary and the amount awarded excessive.

(iii) The decision is against the weight of evidence.

(iv) The learned trial judge erred in law when he relied and used the pleadings in the amended petition filed on the 15th day of March 2006.

(v) The learned trial judge erred in low when he relied and used the pleadings in the Further amended petition filed on the 2nd day of May 2006.

(vi) The learned trial judge erred in low when he entertained the Petitioner’s petition and its amended copies when same were not endorsed with the petitioners verifying Affidavit as made mandatory by order V Rule 10(i) of Matrimonial Causes Rules CAP 220 LFN.”

Learned Counsel for the parties to the appeal, in line with the rules of the court had filed briefs of argument which were adopted and relied on by them at the oral hearing of the appeal on the 18/5/11. The Appellant’s brief was filed on the 5/8/08 and adopted by A.O. Adegoroye, Esq. Mr. C.f. Okoye adopted the Respondent’s brief filed on 5/9/08.

At paragraph 2.1-2.3 of the Appellant’s unpaged brief, the following issues were set out for determination in the appeal.