Mr. Romanus Asimonye V. Mrs. Adora Asimonye (Nee Aniebue) (2009)

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SIDI DAUDA BAGE, J.C.A

This is an appeal against the ruling/order of the High court of Justice, Enugu State (hereinafter referred to as “The lower Court”) delivered on 27th day of June 2003 by Umezulike J, wherein he assumed jurisdiction, heard and determined the application for Ancillary Relief. Aggrieved by the decision of the lower court supra, the appellant appealed to this court.

The facts of the case which gave rise to this appeal are briefly summarized here under. The Respondent in the above appeal (as Appellant) instituted the substantive Suit against the appellant (as Respondent) at the High Court of Enugu State (sitting at Enugu) per motion on Notice dated and filed on 5-3-2002 claiming custody of the three children of the marriage between the parties all of whom had been with the Appellant since the Respondent left the matrimonial home in April 1997. The said motion was filed by the Respondent along side a motion Ex-parte for interim order of custody dated 4-3-2002, but filed 5-3-2002, which said application the lower court duly granted per its order(s) dated 6-3-2002. In addition to the main affidavit in Support of the motion on notice, the Respondent field a further affidavit dated 19-3-2002 and a 2nd Affidavit in support of Application dated 26-3-2003. The appellant contested the Suit per his Counter-affidavit filed on 15-3-2002 and further Counter-affidavit filed on 10-9-2002. In the meantime the Appellants preliminary objection to the competency is the suit and the jurisdiction of the court below to entertain same was dismissed by the court per its ruling dated 24-5-2002. The Court below duly heard the suit on the affidavit evidence by both parties and proceeded on 27-6-2003 to deliver a ruling granting the reliefs sought by the Respondent i.e. custody of the said three children namely: IFUNANY A SCHOLASTICA ASIMONYE then aged 14 years, CHIKA BENEDICT ASIMONYE then aged 13 years and OGOMEGBUNAM RODRICK ASIMONYE then aged 9 years. Being aggrieved by the said ruling, the Appellant has appealed to this Court vides a Notice of Appeal dated and filed on 14-7-2003.

NOTICE OF APPEAL

Order 3 Rules 2.

TAKE NOTICE that the Respondent/Appellant being dissatisfied with the decision/that part of the decision more particularly stated in paragraph 2 of the High Court of Enugu State contained in the ruling/order of Hon. Justice LA. Umezulike (OFR), J, dated the 27th day of June 2003 DOTH HEREBY APPEAL to the court of Appeal upon the grounds set out in paragraph 3 and will at the hearing of the appeal seek the relief set out in paragraph 4.

And the Appellant further states that the names and addresses of the persons directly affected by the appeal are those set out in paragraph 5.

(2) Part of the decision of the lower court complained of: The whole decision.

(3) GROUNDS OF APPEAL

(i) ERROR IN LAW

The Learned trial judge erred in law in assuming jurisdiction and proceeding to hear and determine the applicant/Respondents Application for Ancillary Relief in the instant proceedings notwithstanding that the said application was in competent in Law.

PARTICULARS OF ERROR IN LAW

(a) An application for ancillary relief to wit custody of children of a marriage (as in the instant proceedings) is a matrimonial cause within the meaning of Section 54 (3) and 114(1) (c) of the Matrimonial Causes Act Cap 220 LFN 1990 and other relevant provisions thereof.

(b) By the clear provision of the said Matrimonial Causes Act and the matrimonial causes Rules, proceedings for Ancillary Relief can properly be brought only as ancillary proceedings to and/or when predicated upon a concurrent, pending or completed proceedings for a principal relief as defined by the said Act and Rules.