Mr. Oladipo Obajimi V. Mrs. Olufumilayo A. Obajimi (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

SIDI DAUDA BAGE, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of Dipeolu J. of the High Court of Justice, Ogun state holden at Ijebu-Ode in the Ijebu-Ode judicial Division, delivered on the 9th day of February, 2005 in which the Appellant was the petitioner. The Notice of Appeal which was undated, signed by the Appellants solicitor Kolawole F.O. Loy Esq., but filed on the 25/3/08, contained nine (9) grounds of Appeal.

The background facts are that the petitioner who is the appellant in this appeal filed a petition for dissolution of a 19 years old marriage with the Respondent. The marriage is blessed with four children. Three Males, one Female. By his second Amended petition, the complaint of the appellant was that the Respondent has been very immoral, unruly and carefree from the very beginning of the marriage. She had beaten his mother for about four different times. She did not perform her duty at home but instead indulged herself in Frolic missions. She went in and out of the matrimonial home at will and sometimes in company of men who she claimed were either her Christian brothers or fellow Nurses. She also went out at night and returned the next day claiming that she went to vigil in pursuit of spiritual development.

The Appellant had expressed his displeasure at this nature of misbehavior and the family members advised him to persevere, hoping that the Respondent was only being childish and time would heal her childishness, a predication which she proved wrong.

The Appellant (then Petitioner) filed a petition for the dissolution of the marriage. The petition went through the trial. After the address the judgment was delivered, and the Appellant was aggrieved by the whole judgment from the very beginning of the whole journey for the reason earlier stated, hence he appealed to this court.

The appellant formulated five (5) issues for determination they are:-

(1) Whether or not the evidence before the learned trial judge was well appraised and well marshaled with the relevant provisions of matrimonial causes Ad (i.e. whether or not the decision were judiciously or judicially reached, (especially in line with the conditions precedent to the grant of maintenance and custody of the children of the parties) before reaching his decisions in the following areas:

(i) The decision granting N10, 000 monthly maintenance and award N50, 000 damages against the petitioner/Appellant to be paid by the Appellant to the Respondent without any regard to the Appellant’s earning capacity and conducts of the parties to the marriage and all other relevant circumstance.

(ii) The decision to grant custody of all the children of the marriage to the Respondent when neither dissolution nor separation was granted reasonable?

(2) Whether or not the ancillary orders hanged effectively on law and equity.

(3) Whether or not it is in order for the trial judge to dismiss a petition for dissolution of marriage after coming to a conclusion “That piece of evidence is confirmation that consummation actually ceased”

(4) Whether from the totality of the findings of the learned trial judge and the evidence before the court, adultery was not proved.

(5) Whether the immoral behaviors of the Respondent were not sufficient to constitute behavior that the petitioner/appellant cannot reasonably be expected to live with and whether it is proper for the trial court to omit pronouncement on it.

The Respondents did not file her brief of argument after being duly served with the Appellants’. The appellant had filed a motion on Notice dated the 15/8/07, filed on the 16/8/07 brought pursuant to Order 6 Rule 9 of the court of Appeal Rules 2007. The appellant had sought in the main before the court that his appeal be heard on his brief of argument alone, having duly served the Respondent with his brief of argument since 7th of June, 2007. The appellant’s motion was duly granted by this court on the 7th of April, 2008. On this order this court heard the appeal of appellant on his brief of argument alone on the 19th of January, 2011.