Patrick Tagbo Oguejiofor V. Ndidiamaka D. Oguejiofor & Anor (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ABUBAKAR DATTI YAHAYA, J.C.A. (Delivering the Leading Judgment)

This appeal arose from the judgment of the High Court of the Federal Capital Territory Abuja, delivered on the 23rd of April 2013, which dissolved the marriage between the Appellant and the 1st Respondent.

The appellant and the 1st respondent got married at the Marriage Registry in Enugu Ukwu, Anambra State on the 13th of April, 1998. The Union was blessed with a son. Along the way differences began to manifest and when things got to a head, the 1st respondent presented a Petition for divorce on the 29th of August, 2008, and also prayed for the custody of the child of the marriage-Clinton Kosisochukwu Oguejiofor. The appellant as respondent to the Petition, also cross-petitioned for the dissolution of the marriage on the ground of adultery between the 1st respondent and the 2nd respondent herein. The trial Court granted the divorce on the Petition of the 1st respondent, granted custody of the child of the marriage to the 1st respondent, and also ordered the appellant to pay the sum of N10,000 monthly as maintenance allowance. The trial Court also struck out the cross-petition for being

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incompetent.

Being dissatisfied with the judgment of the trial Court, the appellant filed his appeal to this Court on the 21st of June 2013.

The appellant’s brief was settled by his counsel Mr. Ebute and it was filed on the 29/1/14, but deemed filed on the 8th of July 2015. Therein, four issues were suggested, from the five grounds of appeal. They are –

1. Whether or not the judgment of the trial Court can be said to have been justified by the evidence before it.
2. Whether or not the trial Court was right in striking out the appellant’s cross-petition on the ground that Dr. Obiara Eze was not a Party to the proceedings.
3. Whether or not the trial Court was right in dissolving the marriage on the ground of living apart for a continuous period of three years and unreasonable behaviour of the appellant rather than on the ground of adultery of the petitioner.
4. Whether or not the trial Court was right in awarding the custody of nine years old boy Clinton Kosisochukwu Oguejiofor to the 1st respondent rather than the appellant.

The 1st respondent’s brief was settled by his counsel, P. B. Daudu. It was filed on the 11th

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of October 2016, but deemed filed on the 17th of October, 2016. The three issues identified are –

1. Whether the trial Court was right to have held that the cross-petition filed by the appellant was incompetent and liable to be struck out for failure to join the 2nd respondent who was an alleged co-adulterer in light of the provision of Section 32(1) of the Matrimonial Causes Act 1990?
2. Whether the learned trial judge was right in holding that the marriage had broken down irretrievably based on the facts presented before it by the 1st respondent as opposed to the facts presented by the appellant?
3. Whether in the circumstances of the case the 1st respondent was entitled to custody of the only child of the marriage and other ancillary reliefs granted by the trial Court?

The 2nd respondent has not filed any brief.

The 1st respondent’s brief filed on the 11th of October 2016, contains a Notice of Preliminary Objection. He also filed a separate Notice of Preliminary Objection on the same 11th of October 2016. The grounds of the Preliminary Objection are –

?1. The appellant has without leave of this Honourable Court, joined Dr.

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