Matrimonial Cases

…………………….A…………………….

MOHAMMED AMBI-USI DANJUMA, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Osun State, sitting at the Osogbo Judicial Division delivered by Hon. Justice S. O. Falola in Suit No HOS/23D/2011 on the 25/6/13, granting all the reliefs sought from the Court by the petitioner against the Respondent/Appellant. The following are the reliefs sought before the learned trial Court by the Petitioner:
a. A decree of nullity of marriage contracted between the Petitioner and the Respondent at the Osogbo Local Government Registry, Osogbo, Osun State, on the 10th of October, 2007, on the grounds that marriage has broken down irretrievably based on the fact;
i. That the Petitioner and the Respondent have lived apart for a continuous period of at least 3 years immediately preceding the presentation of this petition.
ii. That the Respondent has deserted the Petitioner for a continuous period of at least one year immediately preceding the presentation of the petition.
b. Custody of the only issue of the marriage, Joshua Adebowale.
c. An Order of the honourable Court directing the payment of the sum of Ten Million Naira by the Respondent to the Petitioner for the economic hardship caused her.
See the Petitioner’s Further Amended Petition and a Verifying Affidavit on pages 81 – 84 of the record.
Respondent’s Amended Answer to the petition and a cross petition dated and filed 21/01/13 is on pages 86 to 92 of the record.
Counsel on both sides filed their respective written addresses and hearing commenced before the trial Court on the 13th day of March, 2012. The Petitioner gave evidence for herself as PW1 and tendered Exhibit ‘A’, which was admitted by the Court. The respondent on his part testified as the DW1 and called another witness who gave evidence as the DW2.
Judgment was delivered by the learned trial Judge on the 25th day of June, 2013, granting all the reliefs sought by the Petitioner and awarded Two Million Naira (N2,000,000.00) General Damages against the Respondent/Appellant.
On being dissatisfied with the decision of the learned trial Court, the Appellant herein approached this Court vide a Notice of Appeal dated 26/8/2013 and filed 29/8/2013 containing five grounds of appeal from which Counsel formulated the following five issues for the determination of this appeal.
1. Whether the learned trial Judge was right to grant reliefs in matrimonial proceedings brought under the High Court Civil Procedure Rules of Osun State.
2. Whether the learned trial Judge was not in error to awarded damages in favour of the Petitioner premised on an application brought under a wrong law and without any evidence adduced to warrant same?
3. Whether the learned trial Judge was not in error to have granted the Petitioner the sole custody of the only child of the marriage in the face of overwhelming evidence to the contrary?
4. Whether the learned trial Judge was not in error to have placed the Appellant in a very tight condition of having to apply to the Court in any occasion when he intends to see his son?
5. Whether the learned trial judge was not in error to have held that the non compliance of the Petitioner petition with the mandatory provision of Order V. Rule 10 (1) of the Matrimonial Causes Rules 1983 as regard the form of verifying affidavit in a divorce petition as a mere irregularity.
Appellant’s brief of argument dated and filed 4/4/14 was deemed filed on 16/3/15 while Respondent’s brief of argument is dated and filed 23/6/15 and deemed filed on 24/5/16.
Respondent’s Counsel raised in their brief of argument a preliminary objection on the ground that the Appellant included in his notice of appeal dated 26/8/2013 but filed 29/8/2013, grounds 2 and (B), the grounds which he contends do not emanate from the final judgment of the Lower Court. She argued that the said grounds emanated from the Respondent’s motion on notice dated and filed 20th April, 2012 granted by the Court on the 11/6/12 and from which there was no appeal from the Appellant (within 14 days), it lapsed. She referred to pages 42 and 68 of the record in proof of her point. She argued that Appellant did not appeal against the said order of the Court and also failed to obtain the leave of the Court before making them grounds of appeal and formulated issues therefrom. Referring to the case of Obi V. NDIC (2007) All FWLR (Pt.393) 143 @ 153 – 154 and Section 24 (2) (a) of the Court of Appeal Act, Counsel submits that the said grounds of appeal came from an interlocutory decision and not from final judgment of the Court.