By LOVINS YAKUBU
15/06/2017
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| Justice Pius Damulak Plateau State Chief Judge |
The
petitioner averred that the cessation of cohabitation was occasioned by the
denial of access to the matrimonial home by the respondent on the 3rd
of July, 2011 for having attending against his wishes the programme of activities
of the God’s Grace Divine Mission belonging to Danjuma Goshwe Fwenji (a party
cited in the matter).
The
respondent did not only deny the facts relied on by the petitioner, but also
filed a cross-petition for the dissolution of the marriage on the ground that
since the marriage was solemnized, the petitioner has committed adultery with
the party cited resulting in a pregnancy which the petitioner in conjunction
with the party cited aborted.
Second,
the respondent claimed that since the past seven years immediately before the
presentation of the cross-petition, the petitioner has behaved in such a manner
that the respondent cannot reasonably be expected to live with the petitioner
in that she has denied him his conjugal right to sex, refused to cook for the
family, abandoned her wifely and motherly duties and donated the family
resources in the region of millions of naira to the party cited. The respondent
claimed damages in the sum of N100,000,000 (one hundred million naira) against
the party cited.
Upon
being served the cross-petition, the party cited filed a reply in which he
denied committing adultery with the petitioner as well as aiding the abortion
of the pregnancy that resulted from the adulterous act. The party cited further
denied being liable in damages and instead counter-claimed N10,000,000 (ten
million naira) as damages against the respondent.
In
proof of the facts constituting the grounds for the dissolution of the
marriage, the petitioner testified and called three other witnesses and tendered
several documents. The respondent also testified and called eight other
witnesses while the party cited testified and called one other witness.
At
the close of hearing, written addresses were filed and exchanged by the
respective learned counsel to the parties.
Having
regard to the evidence adduced and the submissions of learned counsel, Justice
Mann observed that three issues were germane to a just determination of the
suit as follows: First, whether or not the petitioner was entitled to the
orders she sought; second, whether or not the respondent’s cross-petition
established the allegations of adultery against the petitioner and the party
cited; and third, whether or not the court had jurisdiction to entertain the
claim of damages made by the party cited.
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| JUSTICE |
Consequently,
Justice Mann resolved issue one and two in favour of the petitioner and the
party cited and against the respondent and issue three in favour of the party
cited and against the cross-petitioner. However, in view of the ten million
naira claim made by the party cited, the court held that it was not proved as
there was no averment as to how he became entitled to the said damage, adding
that certainly no evidence was adduced in that regard, further stressing that
the fact that the party cited was sued in the case alone was not the basis of
counter-claim of damages.
On
the whole, Justice Mann said, “Having resolved issue one in favour of the
petitioner and against the cross-petitioner and issue two in favour of the
petitioner and the party cited, I hold that the petition of Mrs. Joy Dilkon
succeeds while the cross-petition of Hon. Leonard Dilkon fails.
“Accordingly,
I declare that the marriage between the petitioner and the respondent has
broken down irretrievably by reason of their having lived apart for three years
immediately preceding the presentation of the petition. A decree nisi is hereby
granted to the petitioner.”
In
his Notice of Appeal filed at the Court of Appeal, Jos Judicial Division dated
5th June, 2017, Dilkon complained of the whole judgment.
In
his first ground of appeal, the appellant said the trial Plateau State High
Court judgment is against the weight of evidence.
He
went on: “Ground Two. The trial High Court of Plateau State erred in Law when
it failed and refused to properly evaluate the cross-petition of the Appellant.
“Ground
Three. The trial High Court misdirected itself in Law when it found and held
that “in the circumstances, I find as fact that the Respondent/Cross Petitioner
on or about the 3rd July, 2011 prevented the Petitioner from entry
into her matrimonial home and that led to the perverse judgment it delivered
against the Appellant.
“Ground
Four. The trial High Court of Plateau State misdirected itself in Law when it
said thus: “I find that the Petitioner duly provided that the parties to the
marriage in issue have lived apart for a period of not less than three years
immediately before the presentation of the Petition. The evidence before me
does not support the claim of the Cross-Petitioner that the Petitioner deserted
him. “I so find and this misdirection has led to a miscarriage of Justice
against the Appellant.
“Ground
Five. The trial High Court of Plateau State misdirected itself in Law when it
held as follows: “It is the contention of Mrs. Usoroh that the respondent
cross-petitioner did not make desertion an issue in his cross petition and that
it should be discountenanced. I accept that submission as correct,” and based
on that finding refused and failed to evaluate the Appellant Defence that
desertion was what the first Respondent did and not living apart.
“Ground
Six. The trial High Court erred in Law when it assumed jurisdiction on a relief
already dismissed by another Judge of the same High Court of Plateau State.
“Ground
Seven. The trial High Court erred in law when it held that the first Respondent
should have unconditional access to the children of the marriage both at home and at school, and
that the first Respondent should have the minor children with her for the
holidays (half of same) and that the First Respondent should be consulted on
decisions pertaining to their education, spiritual and moral upbringing as the
above decisions contract all the earlier findings of the conduct on the
relationship between the Appellant and the First Respondent and amounts to
injustice against the Appellant.
“Ground
Eight. The trial High Court erred in Law when it held that the allegation of
adultery was not proved by the Appellant against the Respondents.
“Ground
Nine. The trial High Court erred in Law when it held that; “this court has the
jurisdiction to entertain the Claim since the objection to jurisdiction was
made at the conclusion of trial.”
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