Mrs. Helen Anioke V. Mr. Ben Charles Anioke (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MASSOUD ABDULRAHMAN OREDOLA, J.C.A. (Delivering the Leading Judgment)

This appeal is against the judgment of Effiong, J. of the High Court of Justice, Cross River State, holden at Calabar. The said judgment was delivered on the 25th day of June 2008. The respondent in this appeal was the petitioner at the trial court, vide his petition which was filed on 17th January, 2006. The said petition sought for the dissolution of the marriage solemnized on 16th July, 1988 under the Matrimonial Causes Act, in Lagos between the petitioner and the appellant herein, who was the respondent at the trial court. The petition was predicated on the grounds of irretrievable breakdown of the said marriage.

Paragraphs 8 and 10 of the petition which contained the facts and grounds relied upon for the dissolution of the marriage sought by the petitioner are reproduced below as follows:

“8. The facts relied upon by the Petitioner are as follows:

(a) The Petitioner and the Respondent have lived apart for 2 Years.

(b) The Respondent stopped cohabiting with the Petitioner for two Years.

(c) That the Respondent is very cruel and such is a conduct, which the Petitioner cannot reasonably be expected to bear.

10. That by reason of living apart for more than two Years and the Respondent conduct, which the Petitioner cannot reasonably be expected to bear the marriage has broken down irretrievably.”(sic)

It has been previously averred in paragraph 5 of the petition that cohabitation ceased between the parties in the year 2003.

Thus, the petitioner sought for dissolution of his marriage to the respondent on the facts relied upon above and that the respondent does not object to the grant of the decree sought by the petitioner. Again, paragraphs 3 and 4 of the affidavit in support of the petition restated the facts relied upon by the petitioner.

In reacting, the respondent at the trial court filed her answer to the petition on 3rd May, 2006, wherein she denied cessation of cohabitation, living apart for a continuous period of two years preceding the filing of the petition non objection on her part to the grant of the decree sought by the petitioner and that the marriage has broken down irretrievably – all as alleged by the petitioner. The respondent further averred that cohabitation continued between the couple at Obema Asa, Oyigbo Local Government Area, Rivers State, where she resides, up to the year 2005. The respondent in essence, specifically traversed the assertions contained in paragraphs 5, 8, 10 and 11 of the petition and extensively stated her own side of the story, so to say.

On 20th December, 2006, the petitioner filed his reply to the said answer. He denied the averments contained in paragraphs 11 and 12 of the answer and further elaborated on the happenings which occurred in the matrimonial life of the couple.

In the course of hearing the petition at the trial court, the petitioner and one other witness testified in support of the petition, while the respondent alone testified in support of her defence. Exhibits were also tendered and admitted in evidence. At the end of it all, the learned trial judge found in favour of the petitioner, dissolved the marriage and ordered monthly payment of the sum of N20,000.00 to the respondent as alimony. Dissatisfied with the said judgment the respondent at the trial court has now appealed to this Court. Her notice of appeal which was filed on 17th July, 2008 contained five grounds of appeal. One issue was distilled therefrom for the determination of this appeal.

Henceforth in this judgment, the respondent at the trial court shall be referred to as the appellant, while the petitioner at the trial court shall be called the respondent. The sole issue formulated in the appellant’s brief of argument goes thus:

“Whether the case made out by the petitioner and the evidence before the trial court justified the dissolution of the marriage in this case having regards to the provision of the Matrimonial Causes Act.”