MR. Innocent Ugwumba Eluwa V. Mrs. Florence Ogadinma Eluwa (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

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

The Appellant had presented a petition for the dissolution of his marriage with the Respondent at the High Court of Akwa Ibom State, sitting at Eket, or grounds of cruelty, intolerable behavior, scandal, incompatibility or irreconcilable differences leading to the irretrievable break down of the marriage. On her part, the Respondent answered the petition and cross petitioned against the Appellant who replied and also answered the cross petition.

The petition and cross petition proceeded to trial during which each of the parties testified in support of his/her case, and final addresses were filed and adopted by learned counsel for the parties. On the 8/2/2012, the High court delivered its judgment, dismissing the Appellant’s petition, allowed the cross petition by the Respondent and dissolved the marriage by a decree Nisi. Custody of the two (2) children was granted to the Respondent with unrestricted access to them by the Appellant who was also ordered to pay a monthly maintenance allowance of N250,000.00 to the Respondent.

Apparently being aggrieved and thoroughly dissatisfied with the decision by the High court, the Appellant caused a notice and grounds of appeal to be filed against same on the 6/3/2012. The notice of appeal contains three (3) grounds, which because of the preliminary objection filed against them, I would set out, though prolix. The grounds of the notice of appeal are thus:-

“GROUNDS OF APPEAL

Ground 1: Error in Law

Particulars of Error:

The learned trial judge erred in law by holding that the cross petition of the Respondent succeeded when factually the Respondent filed no cross petition. All that the Respondent filed and canvassed throughout the trial was her answers to the Petitioner’s petition and although the Respondent mentioned the words “Cross Petition” in the heading of her reaction to the petition, no area of the said process could factually be said to be a cross petition that could stand independently or be sustained as a clear cause of action upon which the judgment could vest.

GROUND 2

Particulars of Error:

The learned trial judge erred in law by holding that the petition of the petitioner failed and that the petitioner did not prove his allegation against the Respondent.

The learned trial judge erred in law when he proceeded to dismiss the petition of the petitioner and holding that the petitioner was unable to bring his petition under any of the grounds set out in Section 15 of the Matrimonial Causes Act.

The learned trial judge erred in law by refusing or neglecting to strike out the Respondent’s claim for property upon the facts and circumstances that same was an abuse of process.

GROUND 3