Judicial Separation

“1.That on the 28th day of January, 1961 the petitioner, then Catherine Agom Nwachukwu, spinster, was lawfully married to Christopher Donald Chukwuwike Anyaegbunam, bachelor (hereinafter called ‘the respondent’) in the Church of the Holy Name of Mary, Abatete, Idemili Division in the East-Central State of Nigeria.”
Following the service of the amended petition on him, the respondent entered appearance “on protest.” In compliance with the provisions of rule 14 (2) of the Matrimonial Causes Rules, 1957, the respondent moved the court on 11th January 1972, for the following orders
“(a) That the marriage between the petitioner and respondent was not celebrated under the Marriage Ordinance;
(b) That the said marriage was a customary marriage followed by church marriage or church blessing;
(c) That the court cannot therefore properly entertain the petitioner’s action for judicial separation;
(d) That this honourable court has no jurisdiction to adjudicate on customary or church marriage.”
The motion was supported by an affidavit stating the grounds on which he relied.
This application is, in effect, a denial of the averment in paragraph one of the petition that the petitioner was lawfully married to the respondent. Consequently, the learned trial judge, at the hearing on 11th January, 1972 noted in his record book as follows:
“The issue raised in the protest is so vital that it should be determined before any other matter. I therefore direct that the matter be tried not by affidavit but by oral evidence. Adjourned to 17-1-72 for hearing.”
This direction was probably given pursuant to the provisions of rule 27 of the Matrimonial Causes Rules, 1957, which read:
“27. Any application for direction for the separate trial of any issue or, except in a case to which Rule 14 (2) applies, of any question as to the jurisdiction of the court shall be made to a judge. ”
The direction which a judge should give in those circumstances is stated in Rayden on Divorce, 9th Edition, page 580, paragraph 29 as follows:
“A judge may direct, and any petitioner and any party in a cause who has entered an appearance may apply on summons to a judge for the separate trial of any issue or fact, or any question of jurisdiction. The order states, inter alia, who is to be the plaintiff in the issue, and who the defendant or defendants, whether the incidence is to be by affidavit or oral, and the place of trial.”
Although the learned trial judge did order that the evidence should be oral, he gave no indication as to who should be the plaintiff in the issue. We should have thought that the petitioner, who had stated in her petition of 23rd December, 1971 that there was a lawful marriage between her and the respondent, and who had sworn to an affidavit on 11th January, 1972 that the statement was true, should have been made to begin. Be that as it may, the respondent was made to begin at the trial of the issue on 19th January 1972.
At the hearing, the respondent testified in support of the statements deposed to in his affidavit. Part of his testimony reads:
“I know the petitioner. She is my wife. She is married to me under our native law and custom followed by a subsequent church blessing at the Catholic Church, Abatete. I swore to an affidavit deposing to the circumstances of our association and the nature of our marriage…… There was never a time that I contracted with the petitioner that I would marry her under the Act. No marriage certificate was issued to any of us after the church blessing and nothing was given to me by the church or any other body.”
The respondent then went on to describe what took place at the “church blessing” at the Church at Abatete as follows:
“The Rev. Father at Abatete said that what mattered in the eyes of God was the church marriage and he did not require the Registrar’s Certificate to perform one. We did not sign any document after the marriage ceremony. We were not given anything. We just finished the ceremony and drove back to Enugu.”
The respondent was cross-examined at length about this marriage. Some of the questions asked and the answers given are reproduced hereunder
“Q: You were given a notice to produce a Marriage Certificate in respect of this Marriage.
Ans: Yes.
Q: Have you got it there?
Ans: There was no marriage certificate issued and I cannot produce any.
Q: You signed a marriage Register in the Catholic Church after the marriage.
Ans: I signed a register in the Catholic Church.
Q: A marriage certificate was issued and you collected it.
Ans: No.
Q: You also obtained a Registrar’s Certificate before the marriage.
Ans: Of course not. I did not apply for nor collect a Registrar’s Certificate. ”
The respondent was then re-examined. During this re-examination a document signed by one Father Roche who performed the church ceremony was tendered. The relevant part of the contents of this document (Ex. 6) reads
“Church of the Holy Name of Mary,
Roman Catholic Mission,
Abatete, Onitsha,
Eastern Nigeria
Certificate of Marriage
This is to certify that the under-named parties were lawfully married by me according to the Marriage Rites of the Roman Catholic Church