Mrs. Yetunde Modupe Kakulu V. MR. Edmund Igwei Kakulu (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

IBRAHIM SHATA BDLIYA, J.C.A. (Delivering the Leading Judgment)

Mrs. Yetunde Modupe Kakulu, the appellant, who was the petitioner at the High Court of Justice, Kaduna State (the lower Court) filed a divorce petition against Mr. Edmund Igwei Kakulu, (the respondent) in suit No. KDH/KAD/837/2011, seeking for the dissolution of her marriage, and for an order granting her the custody of the four (4) children of the marriage.

The respondent filed an answer to the petition and cross-petitioned whereby he sought for an order to be reimbursed by the appellant the sum of Two Million Two Hundred Thousand Naira (N2,200,000.00) as his contribution to the procurement of their matrimonial home, No.2 Algeria crescent, Barnawa, Kaduna.

After the close of pleadings, the matter proceeded to trial culminating in the delivery of a judgment on the 21st of August, 2013, wherein the reliefs sought by the appellant were granted and the respondent’s claim for the reimbursement of his contribution to the procurement of the matrimonial home was also granted. Peeved and piqued by the order of the Court to reimburse the respondent with the sum of

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N2,200,000.00, being his contribution to the acquisition of the said House No. 2 Algeria crescent, Kaduna, the appellant appealed to this Court by filing a Notice and grounds of appeal on the 26th of August 2013.

The appellant filed her brief of argument on the 12th of August, 2015, containing 2 issues distilled from the 4 grounds of appeal. The respondent filed his brief of argument on the 28th of August, 2015. The respondent gave a notice of preliminary objection to the competency of issue 2 raised in the appellant’s brief of argument and argued same in his brief of argument.

He urged that the preliminary objection be sustained, and issue 2 be struck out or discountenance in the hearing of the appeal. In the event of not sustaining the preliminary objection, the two issues contained in the appellant’s brief of argument were adopted by the respondent for determination in the appeal. Where a preliminary objection is raised in an appeal, the appellate Court has a duty to attend to it and must dispose it first before venturing into the appeal before it. See 559; E.A. INDUSTRIES LTD. v. NERFUND (2009) 8 NWLR (PT.1144) P. 535; UBA PLC V. ACB (NIG.) LTD.

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(2005) 12 NWLR (PT.939) P. 232 and Abiola v. Olawuye (2006) 13 NWLR (Pt. 996) P. 1. A preliminary objection in a brief of argument is to be attended and resolved before delving in to the appeal because it may fore-close or abort the appeal in limine.

Where a preliminary objection is upheld by the Court, the appeal is to be deemed aborted or terminated in limine without necessarily determining the rights of the parties thereto, one way or the other, on the merit. see CBN v. Beekiti const. Ltd. (2011) 5 NWLR (Pt. 1240) P. 203 @ 222: Odunze v. Nwosu (2007) 13 NWLR (Pt. 1050) P. 1; ANPP v. RE. C. Akwa lbom State (2008) 8 NWLR (Pt. 1080) P. 453.

The respondent’s Notice of preliminary objection was filed on the 28th of September 2015; it is thus:

NOTICE OF PRELIMINARY OBJECTION PURSUANT TO ORDER 10 RULE 1, COURT OF APPEAL RULES, 2011

TAKE NOTICE that the respondent/objector will at the threshold of or the hearing of this appeal, raise by way of preliminary objection praying for an order that the appellant appeal issue number two be struck out “in limine lite on the premise that same is incompetent, the said issue not