Okechukwu Obed Uzochukwu V. Chibuzor Tochukwu Uzochukwu (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOSEPH E. EKANEM, J.C.A. (Delivering the Leading Judgment)

The appellant and the respondent got married on the 1st day of January, 1996, under the Marriage Act 1983. The union has been blessed with two children – a male and a female. In the course of time, the relationship between the couple turned sour, resulting in the respondent filing a petition for dissolution of the marriage.

The petition was filed at the High Court of the Federal Capital Territory, Abuja Division (“the Lower Court” for short). The appellant reacted by filing a cross-petition. The respondent withdrew her petition, leaving the appellant’s cross petition as the only petition for consideration by the Lower Court.

After trial and addresses, the lower court dismissed the cross petition for being devoid of merit.

Aggrieved by the decision, the appellant has appealed to this court by way of a notice of appeal containing five grounds of appeal. Out of the five grounds of appeal the appellant in his brief of argument which was deemed properly filed and served on 18th November, 2013 formulated five issues for the determination of the appeal.

The issues are as follows:

“(a) whether from the pleadings and evidence before the court in this case, the learned trial judge was right to hold that there was no evidence that the parties have lived apart for a continuous period of over 2 years preceding the presentation of the petition and cross-petition and both parties are not objecting to an order of dissolution of their marriage pursuant to Section 15 (2) (e) of the Matrimonial Causes Act. GROUND ONE.

(b) Whether the legal principle of corroboration as enunciated in IBRAHIM V. IBRAHIM (2007) 1 NWLR (1015) 383, AT 390 and applied suo motu by the learned trial court to the benefit of the Cross Respondent, does not avail the cross petitioner under the principle of fair hearing. GROUND TWO

(c) Whether the lower trial court has jurisdiction to consider and rely the Respondent’s answer to the cross petition filed on 29/04/2011 to dismiss Appellant’s cross petition in the face of its earlier ruling of 13/04/2011 dismissing the answer to cross petition on the authority of the Supreme Court decision in YOUNG SHALL GROW MOTORS LTD V. OKONKWO (2010) 15 NWLR (PT.1217) 524 AT 543. GROUND THREE

(d) Whether the contradicted and discredited evidence of the DW2 and DW3 on the authority of the Supreme Court decision in EZEMBA V. IBENEME (2010) 10 NWLR (PT 894) 617 is admissible to corroborate the Cross Respondent’s allegation of beating against the cross petitioner. GROUND FOUR

(e) Whether the judgment is not against the weight of evidence. GROUND FIVE

It must be mentioned that, inspite of the service of the appellant’s brief on the respondent, she failed or neglected to file her brief. Consequently, leave was granted, on the appellant’s application, for the appeal to be heard on the brief of argument of the appellant only. Where a respondent fails to file his/her brief, as in this case, that will not mean automatic success of the appeal as the appellant must succeed on the strength of his case. The respondent will be deemed to have admitted the truth of everything stated in the appellant’s brief provided it is borne out of the record of appeal. See UNITY BANK PLC V. BOUARI (2009) 7 NWLR (1086) 372, 403.

I shall first consider Ground three of the grounds of appeal in the notice of appeal. It is as follows:

“The lower trial judge failed and refused to be bound by the doctrine of judicial precedent and thus occasioned a miscarriage of Justice.