Nkiru Joy Oduche V. Obiefuna Ndubuisi Oduche (2005)

LawGlobal-Hub Lead Judgment Report

OLADOBE RHODES-VIVOUR, J.C.A.

The Respondent commenced divorce proceedings against his wife, the appellant, before the High Court of the Federal Capital Territory, holden at Gwagwalada, Abuja. He petitioned the Court to dissolve his marriage with the appellant contracted on the 8th day of September, 1984. His ground for the petition was that the marriage had broken down irretrievably in that the appellant deserted him and committed adultery. The respondent further claimed for custody of the three children of the marriage, and an order directing the appellant to revert the new surnames given to the children by her in their various schools to their real surname – ODUCHE.

The appellant in her answer to the 2nd amended petition filed a further amended Answer and cross petition seeking a dissolution of the marriage on the ground of living apart for a continuous period of three years, immediately preceding the presentation of the petition. In addition the return of her personal properties or payment of current value for same, and custody of the three children of the marriage.

Both parties gave evidence and tendered forty-five Exhibits. The respondent called two witnesses in support of his case, while the appellant did not call any witness.

The learned trial Judge, A.A Kolojo J. In a considered Judgment delivered on the 14th of November, 2000, made the following orders:

(a) Custody of Echezona Afamefuna Ejike ODUCHE (MALE) to the Respondent.

(b) Custody of the other children, namely Ndidi Sochi ODUCHE (FEMALE) and Emmanuel ODUCHE (MALE) to the appellant.

(i) the respondent should be allowed by the appellant to have access to the latter two children during school holidays and weekends;

(ii) the respondent should also be allowed to have a say in the school the children attend.

c) The appellant is hereby directed to revert the new surname given by her to the children in their various schools to their real surname namely – ODUCHE.

(c) The appellant has failed to prove that she is entitled to the return of her personal properties or payment of current value for some. The appellant is not given the custody of Afam. She is given the custody of Sochi and Emmanuel, subject to the conditions adumbrated above.

Earlier on the 16th of July, 1998, the learned trial Judge pronounced a decree Nisi dissolving the marriage after the parties agreed that they had lived apart for a continuous period of three years, immediately preceding the presentation of the petition.

The appellant appealed to this Court on four grounds of appeal out of which learned Counsel for the appellant, C.I. Okoye Esq. in an Appellant’s brief of argument filed on 19/8/03 formulated four issues for the determination of the appeal. The issues are stated as follows:

“1. Whether the learned trial Judge erred in Law, when he held that the presumption under Section 148 of the Evidence Act was not rebutted in this trial.