MR. INNOCENT UGWUMBA ELUWA v. MRS. FLORENCE OGADINMA ELUWA (2013)

MR. INNOCENT UGWUMBA ELUWA v. MRS. FLORENCE OGADINMA ELUWA

(2013)LCN/6689(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 3rd day of December, 2013

CA/C/180/2012

RATIO

RELEVANT CONSIDERATIONS IN DECIDING THE WELFARE OF A COURT

In deciding what the welfare of a child is, factors which have been considered relevant by the courts include:-

a) degree of familiarity between the child and each of the parents respectively,
b) the amount of affection between the child and each of the parents,
c) the respective income and position in life of each of the parents,
d) the arrangements made by the parties for the education of the child
e) the fact that one of the parents now lives as man and wife with a third party who may not welcome the presence of the child,
f) the fact that young children should as far as practicable, live and grow up together
g) the fact that in cases of children of tender ages should, unless other facts and circumstances make it undesirable, be put under the care of the mother,
h) the fact that one of the parents is still young and may wish to marry and the child may become an impediment.

These factors are only some to be considered and so each case is to be decided on the peculiar facts and circumstances placed before the court in the proceedings. See Lafun v Lafun (1967) NMLR, 401; Williams v Williams (supra); Alabi v Alabi (2007) 9 NWLR [1039) 297; Afanja v Afanja (1971) 1 U.I.L.R. 105; Odogwu v Odowgu (supra). Per MOHAMMED LAWAL GARBA, J.C.A.

ESSENCE OF A GROUND OF APPEAL

Generally, the attitude of the appellate courts is that the essence of a ground of an appeal is to give adequate and reasonable information to the respondent in the appeal of what the complaint is against the decision of a lower court in order to enable him know and prepare for what to meet in the appeal. It is also to let the appellate court know clearly and precisely what the attack or complaint against the decision of a lower court it is called upon to consider and determine in the appeal. Once the information in a ground of appeal is adequate and leaves no doubt about what the Appellant’s complaint is against the decision of a lower court which he seeks the appellate to review by way of re-hearing, the essence of the ground has been met and the ground would be a valid and therefore competent ground of appeal. See Ejowunmi v Edok-Ele Mandilas Ltd. (1986) 10 NWLR (39) 1; Thor v. First City Bank (1997) 1 NWLR (479), 35; Aderounmu v. Olowu (2000) 4 NWLR (652) 253; Iwuoha v. NIPOST (2003) 8 NWLR (822) 308; Osasanya v. Ajayi (2004) 5 SC (Pt.1) 88; Tiza v. Begha (2005) 5 SC (Pt.II) 1; Oloruntoba-oju v. Abdul-Raheem (2009) 13 NWLR (1157) 83. Per MOHAMMED LAWAL GARBA, J.C.A.

Before Their Lordships

MOHAMMED LAWAL GARBAJustice of The Court of Appeal of Nigeria

J.C.A.Justice of The Court of Appeal of Nigeria

UZO I. NDUKWE-ANYANWUJustice of The Court of Appeal of Nigeria

ONYEKACHI A. OTISIJustice of The Court of Appeal of Nigeria

Between

MR. INNOCENT UGWUMBA ELUWAAppellant(s)

AND

MRS. FLORENCE OGADINMA ELUWARespondent(s)

MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment): The Appellant had presented a petition for the dissolution of his marriage with the Respondent at the High Court of Akwa Ibom State, sitting at Eket, or grounds of cruelty, intolerable behavior, scandal, incompatibility or irreconcilable differences leading to the irretrievable break down of the marriage. On her part, the Respondent answered the petition and cross petitioned against the Appellant who replied and also answered the cross petition. The petition and cross petition proceeded to trial during which each of the parties testified in support of his/her case, and final addresses were filed and adopted by learned counsel for the parties. On the 8/2/2012, the High court delivered its judgment, dismissing the Appellant’s petition, allowed the cross petition by the Respondent and dissolved the marriage by a decree Nisi. Custody of the two (2) children was granted to the Respondent with unrestricted access to them by the Appellant who was also ordered to pay a monthly maintenance allowance of N250,000.00 to the Respondent. Apparently being aggrieved and thoroughly dissatisfied with the decision by the High court, the Appellant caused a notice and grounds of appeal to be filed against same on the 6/3/2012. The notice of appeal contains three (3) grounds, which because of the preliminary objection filed against them, I would set out, though prolix. The grounds of the notice of appeal are thus:-

“GROUNDS OF APPEAL
Ground 1: Error in Law
Particulars of Error:
The learned trial judge erred in law by holding that the cross petition of the Respondent succeeded when factually the Respondent filed no cross petition. All that the Respondent filed and canvassed throughout the trial was her answers to the Petitioner’s petition and although the Respondent mentioned the words “Cross Petition” in the heading of her reaction to the petition, no area of the said process could factually be said to be a cross petition that could stand independently or be sustained as a clear cause of action upon which the judgment could vest.

GROUND 2
Particulars of Error:
The learned trial judge erred in law by holding that the petition of the petitioner failed and that the petitioner did not prove his allegation against the Respondent.

The learned trial judge erred in law when he proceeded to dismiss the petition of the petitioner and holding that the petitioner was unable to bring his petition under any of the grounds set out in Section 15 of the Matrimonial Causes Act.

The learned trial judge erred in law by refusing or neglecting to strike out the Respondent’s claim for property upon the facts and circumstances that same was an abuse of process.

GROUND 3
WRONGFUL EVALUATION OF THE EVIDENCE THAT LED TO A MISCARRIAGE OF JUSTICE

Particulars
The judgment was unsupportable, unwarranted and unreasonable having regards to the evidence that was adduced.

The learned trial judge was wrongful in his evaluation of evidence and hence reached a conclusion which was both absurd and unreasonable having regards to the evidence that was adduced.

Whereas the Respondent did not adduce any evidence nor was there any material that was placed before the court to establish as proof of the petitioner’s income, the learned trial judge, wrongfully and biasedly proceeded to evaluate the evidence that was not so adduced by the Respondent, and came to the conclusion that the Petitioner was earning such amount mentioned by the Respondent in paragraph 7[iv) of her answer to the petition and that the petitioner did not refute same.

The learned trial judge was wrongful in evaluation of the evidence at the trial that led to his decision to give the custody of the son, Uzochukwu Emmanuel to the Respondent when there was abundant undisputed evidence of how and why the Respondent hated the boy, and the custody of the daughter, Kelechi Assumpta to the Respondent, when there was clear evidence of the Respondent’s immoral, deceitful and neckless character.

The learned trial judge was in grave error in his decision to grant custody of the children to the Respondent and for the children to continue being in their respective schools when there was no evidence at the trial that the children were in school and or established where the children and their said respective schools were at the time of the decision.

Other grounds of appeal and further or more particulars shall be filed when the records of proceedings is received.”

As required by the Rules of the court, briefs of argument were filed by the learned counsel for the parties as follows:- Appellant’s brief filed on the 31/12/12, the Respondent’s brief filed on the 31/1/13 and the Appellant’s Reply brief filed on the 5/4/13 were deemed properly filed on the 6/5/13. As stated above, the learned counsel for the Respondent had filed a notice of preliminary objection to the appeal on the same date with the Respondent’s brief i.e. the 31/1/13.
At the oral hearing of the appeal in court on the 7/11/13, Mr. Livinus Udofia, Esq., learned counsel for the Respondent moved the preliminary objection which was argued in the Respondent’s brief and urged us to uphold it. Chief Anselam Eyo, Esq., for the Appellant adopted his reaction to the objection as contained in the Appellant’s Reply brief and urged us to dismiss the objection and hear the appeal on the merit. Learned counsel then adopted their respective briefs as the submission in support of their positions in the appeal, each urging us to uphold his submissions and decide the appeal accordingly.
Three issues were distilled from the grounds of appeal by the learned counsel for the Appellant at page 2 of the Appellant’s brief as follows:-
“2.1. The first issue for determination in this appeal as can be distilled from ground one of the appeal is whether the grounds upon which the Appellant based his claims in the petition were not potent and preponderant enough to sustain the petition and the dissolution of the marriage as against the Respondent’s “cross petition” and whether the learned trial judge did not therefore err in law in dismissing the Appellant’s petition.
2.2 The second issue for determination as can be distilled from ground two of the appeal is whether upon the state of the pleadings and the evidence of the parties the Appellant did not discharge the onus of proof of his allegations against the Respondent as would have entitled him to the relief he sought pursuant to Section 15 of the Matrimonial Causes Act that the marriage had broken down irretrievably.
2.3 The third issue to be considered in this appeal as can be distilled from ground three of the appeal is, whether the learned trial judge was not wrongful in his evaluation of the evidence of the parties and ended up in a decision that was unsupportable, unwarranted and unreasonable having regards to the evidence that was adduced by the parties in support of their claims.”
A lone issue was raised in the Respondent’s brief for determination in the appeal. It is thus:-
“Whether the trial court was not entitled to dismiss the petition of the appellant and uphold the cross petition?”
The Respondent’s issue appears to encompass the three (3) issues formulated by the Appellant’s counsel because a determination of whether or not the High Court was right to have dismissed the Appellant’s petition and uphold the cross petition would subsume the Appellant’s issues. I would leave the issues for now and in line with established judicial principles of practice, consider and decide the preliminary objection first.
The grounds of the objection as contained on the notice are as follows:-
1. The record of appeal in this appeal was transmitted to the Court of Appeal out of the time permitted by the Rules of the Court of Appeal without any order granting leave to the appellant to so do.
2. All the grounds of appeal as contained in the record of appeal are vague and incompetent and not capable of having issues distilled therefrom.
3. The appellant’s brief of argument is incompetent as the issues for determination canvassed therein are distilled from incompetent grounds of appeal.

In his argument of the objection, the learned counsel for the Respondent had referred to the provisions of order 8, Rule 1, 4 and, 5 of the Court of Appeal Rules, 2011, the notice of appeal at page 86 of the record of appeal and the date on which the record of the appeal was transmitted to the court, and argued that it is beyond dispute that the record of the appeal were not compiled and transmitted to the court within the time prescribed in the said Rules. He said since the record of appeal was transmitted to the court after the time prescribed in the Rules had expired or lapsed and the Appellant did not seek for and obtain extension of time to transmit the record, it is incompetent.
Learned counsel then said grounds 1 and 2 on the notice of appeal do not contain any error of law complained of and the particulars contain arguments of the undisclosed errors in law. Ground 3 was said by counsel to allege wrongful evaluation of evidence by the High Court but the particulars raise the omnibus ground in a criminal appeal that the judgment is unsupportable, unwarranted and unreasonable having regards to the evidence that was adduced. In addition, that the particulars to the ground raised issues of bias, custody, immorality, deceitfulness and character which are argumentative and do not flow from the ground. That the particulars of all the grounds raise fresh grounds of appeal instead of supporting the grounds under which they were set out thereby violating Order 6, Rule 2(2) and (3) of the Court of Appeal Rules. The cases of Olufeagba v Abdul-Raheem (2010) ALL FWLR (572) 1033; F.N.A. v Kelajaiye (2011) ALL FWLR (562) 1633 and Ekeru v. Anoku (2011) ALL FWLR (561) 1560 at 1586 – 7 inter alia, were cited in support of the submissions and we are urged to strike out the grounds pursuant to Order 6, Rule 6 of the court’s Rules.
On his part, the learned counsel for the Appellant had said in his response to the grounds of the objection that ground 1 cannot be sustained because it was not supported by an affidavit since the time the record of appeal was transmitted to the court is a matter of fact and not law. Counsel went on to argue on the point citing cases on the reasons why issues of fact should be supported by affidavit evidence, including FBN v. Akparabong Community Bank Ltd. (2006) ALL FWLR [319] 927 at 960 and Woheram v Emereuwa (2004) 120 LRCN, 4752 at 4769.
He also argued that the objection is basically technical and so capable of being waived since it did not go to the appeal or shown to have prejudiced the respondent. Several cases were cited on the submission among which are Obakpolor v State (1991) 1 SCNJ, 91 at 101-3 and Iroegbu v Okwordu (1990) 10 SCNJ, 87 at 97 – 8 and we were urged to strike out the ground of objection.
On ground 2 of the objection, it was submitted that all the grounds are not vague but competent, reliance placed on Ogunpola v Oasis Savings & Loans Ltd. (2007) ALL FWLR (357) 935 at 947 on what determines the competence of a ground of appeal. It was the contention of counsel that none of the grounds violates Order 6 Rule 2(2) and (3) and that all the cases cited by the learned counsel for the Respondent in support of the submissions that the grounds were incompetent are misconceived. He then submitted that since the grounds flow from the judgment of the High Court and sufficiently furnish the Respondent and the court with the areas of the judgment the Appellant attacks, the grounds should be spared and found competent. We are urged to strike out the preliminary objection. He did not however answer the objection that ground 3 is incompetent in civil appeals.

Now, the learned counsel for the Respondent is right that the provisions of Order 8, Rules 1 and 4 of the Rules of court have stipulated and limited the time within which the record of an appeal from a lower court to the court shall be compiled and transmitted by the Registrar of that court or by the Appellant, to the court after the filing of the notice of appeal in that court. 60 and thereafter 30 days respectively were provided and limited by the Rules for the Registrar or the Appellant to compile and transmit the record of appeal to the court. Because of the deliberate use of the word “shall” in the two (2) Rules, a mandatory duty or obligation was thereby imposed on the Registrar in the first instance, and in the second, the Appellant to compile and transmit the record of appeal within the stipulated and limited periods of time.

These Rules, and all Rules of court, which impose a legal duty, obligation and therefore a burden on a party or officials to take steps aimed at the orderly and expeditious determination of an appeal in and by the court, are meant to be and must be obeyed and complied with by them. It is not for any party or official of courts to take the Rules of a court for granted even if they were in discretionary terms, let alone in mandatory tenor and expect that the courts would as a matter of course, condone the attitude for no tenable reason. All Rules of courts are not made and meant to be ignored, disregarded or for fun and left to the whims of parties or officials of courts, but are bound to be obeyed and complied with. Onagoruwa v IGP (1991) 5 NWLR [193] 593; Asalu v Dakan (2006) ALL FWLR (325) 90; Mako v Umoh (2010) 8 NWLR (1195) 82; Nig. Navy v Labingo (2012) 6 – 7 MJSC, 1.
In the present appeal, the facts are beyond any dispute that the Appellant’s notice of appeal was filed on the 6/3/12 as borne out by the notice of appeal which is at pages 86 – 88 of the record of appeal, that the record of the appeal was transmitted to and received in the court on the 9/8/12 as contained on the face of the record of appeal and that the record of appeal was therefore transmitted outside and after the expiration of the period of time stipulated in Order 8, Rules 1 and 4. In addition, there is no record that the Appellant had applied for and obtained an extension of time to compile and transmit the record of the appeal as is accepted and established by practice where a party fails, neglects or was unable otherwise to take a step within the time prescribed by the Rules. The record of the appeal in the circumstances was clearly transmitted in breach of and non-compliance with the provisions of Order 8, Rules 1 and 4. Instead of the learned counsel for the Appellant to accept that undisputable state of the record of the appeal and do what was in the circumstances, necessary, reasonable and expected of him, he embarked on a verbose and unnecessary attempt to defend the undefendable, with due respect to him. Because the Rules of the court are inter alia, intended to aid and facilitate the attainment of expeditious determination of appeals, it is not every non-compliance therewith that may be fundamental and therefore fatal to the appeals. Non-compliance with the Rules which arose from the mistake of counsel and do not go to the jurisdiction of the court to adjudicate over an appeal would be treated as a mere irregularity because of the attitude of the court not to punish the parties for mistake of their counsel in the conduct of their cases before the court. Okoye v N.C. & F. Co. Ltd. (1991) 6 NWLR (199) 501; Soy Agencies Ind. Serv. Ltd. v Metalum Ltd. (1991) 3 NWLR (177) 35; Anyanwoko v Okoye (2010) 5 NWLR (1188) 497. Since the learned counsel for the Respondent did not suggest that the non-compliance with the Rules in the transmission of the record of the appeal to the court has occasioned any prejudice to the Respondent howsoever, I am prepared, in the interest of justice and expeditious consideration and determination of the appeal which the Rules of court aim to achieve, to treat it is an irregularity which the court on its own motion, can correct at this stage of the appeal, by deeming the said record to have been properly transmitted for the purposes of the hearing and determination of the appeal. I do and the objection on that ground, fails and is overruled.

The next ground of objection is on the competence of the grounds of appeal. Order 6, Rules 2(2)(3) and 3 of the Court of Appeal Rules, 2011 provide that:-
“2(2)-Where a ground of appeal alleges misdirection or error in law, the particulars and the nature of the misdirection or error shall be clearly stated
2(3) The notice of appeal shall set forth concisely and under distinct heads the grounds upon which the Appellants intends to rely at the hearing of the appeal without any argument or narrative and shall be numbered consecutively.
3. Any ground which is vague or general in terms or which discloses no reasonable ground of appeal shall not be permitted save the general ground that the judgment is against the weight of the evidence, and ground of appeal or any part thereof which is not permitted under this Rule may be struck out by the court of its own motion or on application by the Respondent.
These provisions, which were the same in earlier Rules of the court; were considered and pronounced on by the court as well as the apex court the Supreme Court. For instance, in the cases of Umana v Attah (2004) 7 NWLR (871) 63, and A-G. Akwa Ibom State v Essien (2004) 7 NWLR (872) 288, it was held by this court that a ground of appeal which alleges errors in law or misdirection but fails to furnish the particulars of the errors or misdirection alleged, is incompetent and liable to be struck out. The same position was stated by the apex court in the cases of Osasona v Ajayi (2004) 14 NWLR (894) 527; Nta v Anigbo (1972) 7 NSCC, 359; Amadi v Okoli (1977) 11 NSCC, 117; Airoe Construction & Civil Engineering Co. Ltd. v University of Benin (1985) 16 NSCC (Pt. 1) 312.

In addition, in the case of Adah v Adah (2001) 5 NWLR (705) 1, it was held that a ground of an appeal which is argumentative and narrative or verbose, is incompetent and liable to be struck out under Order 6, Rule 2(3). See also Haruna v K.S.H.A. (2010) 7 NWLR (1194) 604; Justice Party v INEC (2006) ALL FWLR (339) 907; N.S. Engineering Co. Ltd. v Ezenduka (2002) 1 NWLR (748) 469 at 486. Furthermore, by the provisions of Order 6, Rule 3 above, a ground of appeal which is vague, in general terms and does not disclose a reasonable ground of appeal, is liable to be struck out for incompetence since it shall not be permitted by the court. Nnaji v Agbo (2006) ALL FWLR (301) 736; Abdullahi v Oba (1998) 6 NWLR (554) 420.

Looking calmly at the grounds 1 and 2 of the Appellant’s notice of appeal, they present no difficulty whatsoever in understanding what the complaints are by the Appellant against the decision of the High Court. The points in the judgment with which the Appellant is dissatisfied are clearly stated in the grounds, which were inadvertently, set out under the particulars instead of immediately below and after the grounds and errors of law. Learned counsel for the Respondent did not say or appear to have any difficulty in understanding what the nature of the grievance of the Appellant is against the judgment of the High Court in those grounds. The grounds may be wanting in form but their substance is clear and unambiguous and are competent grounds for determination in the appeal.
The apex court in the recent case of Dakolo v Dakolo (2011) LPELR, 915 had held that:-
“It is settled that this court will always make the best it can, out of a bad or in elegant ground or brief in the interest of justice. See Owner of MV Arabella v Nig. Agricultural Ins. Corp. (2008) 4 – 5 SC (Pt. III) 37”
In the above premises, the objection on the two (2) grounds fails and is overruled.

Next is the objection to ground 3.

In the case of Egesie v Elele (supra), it was held at page 1685 that:-
“In a civil appeal, the general ground of appeal is stated as “judgment is against the weight of evidence”, whilst in a criminal appeal, it is stated that the verdict is “unreasonable and cannot be supported having regard to the evidence.”
Pats Acholonu, JCA, then, had stated at page 1686 of the report that:-
“It is most unfortunate that the Appellant has (to do the garb) a ground meant for a notice of appeal in a criminal case in clothing of the notice of appeal in a civil matter. In the case of Innih v Ferado A. & Co. Ltd. (1990) 5 NWLR (Pt. 152) 604 at 614 Kolawole, JCA, said,
“This court and the Supreme Court have stated on numerous occasions that in a civil appeal, the general ground is that the judgment is against the weight of evidence, whilst in a criminal appeal, it is that the verdict is unreasonable and cannot be supported, having regard to the evidence.”
Similarly, this court in the case of Ikpana v Reg. Trustees of P.C.N (2006) ALL FWLR (310) 1703 at 1715, per Adamu, JCA, had held that:-
“As for ground 5 of the appeal, it is couched in the form of an, omnibus ground applicable to criminal case because of the use of the following phrase at its end;
“….are unwarranted, unjustified and against the weight of argument (sic; evidence).”
The use of a criminal form of ground in a civil case or matter is not appropriate or permitted by the court. Consequently, the said ground should be and is hereby disregarded or discountenanced.”
See also Ihewuzi v Ikeanya (1989) 1 NWLR (96) 239; Ofuam v Nig. Navy (2001) 16 NWLR (739) 365; Maure v. Abdul (2001) 4 NWLR (702) 95; Uzoka v FRN (2010) 2 NWLR (1177) 118.

The Appellant’s ground 3 is beyond viable argument, a ground appropriate and valid only in criminal appeals as a general or omnibus ground of appeal. Civil matters or cases are by our law of evidence; Section 134 of the Evidence Act, 2011, decided on the balance of probabilities or preponderance of evidence and therefore on the weight of such evidence as evaluated and ascribed by a trial court. A complaint therefore in a general or omnibus ground against the decision by a lower court to this court on the assessment or evaluation of the totality of the evidence adduced by any or all the parties and ascription of the probative value or weight due to it, should be based on the weight of such evidence and not on the reasonableness of the decision. That is the position of the law and because the Appellants ground 3 is not a valid omnibus or general ground in civil appeals, it is incompetent and liable to be struck out. The Respondent’s counsel’s objection on the ground succeeds and is upheld and in consequence, the ground 3 of the notice of appeal is hereby struck out. For being struck out, the Appellant’s issue three (3) as well as the submissions thereon in the Appellant’s brief, would be discountenanced in the determination of the appeal for being no longer live.
I now turn back to the issues remaining in the appeal; i.e. Appellant’s 1st and 2nd issues. As seen above, the 1st issue was said to have been distilled from the ground 1 of the notice of appeal which for case of reference, is that-
“The learned trial judge erred in law by holding that the cross petition of the Respondent succeeded when factually the respondent filed no cross petition.”
The only particulars of the error alleged in the ground says that:-
“All that the respondent filed and canvassed throughout the trial was her answers to the Petitioner’s petition and although the Respondent mentioned the words “cross petition in the heading of her reaction to the Petition, no area of the said process could be said to be a cross petition that could stand independently, or be sustained as a cause of action upon which the judgment could vest.”
Concisely and precisely put, the complaint of the error of law in both the ground and the particulars is that there was no cross petition for decision before the High Court.
The Appellant’s issue 1 said to have been formulated from the above complaint of error in law is whether the High Court was right to have dismissed the Appellant’s petition. Without any difficulty, it can be observed that the ground along with its particulars and the issue said to have been distilled from it are entirely different. The ground and its particulars say there was no cross petition before the High Court while the issue questions whether the High Court dismissing the Appellant’s petition. It should be the purposes of trial and proof, the Appellant’s petition and the Respondent’s cross petition are independent and separate claims to be determined by the High Court. The failure of one does not automatically translate into the success of the other because each would be decided on the basis of the evidence adduced in support thereof by the party who bears the legal burden of proof for it.
For his petition, the Appellant had the initial burden of proof while the Respondent had the burden to prove the cross petition whether or not the Appellant satisfactorily discharged his own burden, if she was to succeed in it. In the case of Otti v Otti (1992) 7 NWLR (252) 187 at 212, it was held that:-
“It is elementary that a cross petition is itself a petition for it is the same category as a counter-claim. The cross petitioner must therefore prove every averment in the cross petition.”
The case of Nwanya v Nwanya (1987) 3 NWLR (62) 697 at 704 was referred to in the case.
The Appellant’s proof of his petition was not dependent on the existence of the Respondent’s cross petition and so does not bear any relationship with the existence of the cross petition for the purpose of proof even if there were facts in the cross petition that could be considered to be admission by the Respondent. This is because divorce proceedings are considered sui generis because they are not govern by the general rules of practice in pleadings but by the Matrimonial Causes Act and Rules specifically enacted to regulate them, the petitioner is required to strictly prove his averments of the petition irrespective of any admission by the Respondent to the petition. See Section 82(1) & (2) of the Matrimonial Causes Act, 1970; Okala v Okala (1973) 3 ECSLR, 67; Ibeawuchi v Ibeawuchi (1973) 3, 56; Oviasu v Oviasu (1973) Suit No. SC/264/70, SCNJ; Olowu v Olowu (1977) Suit No AB/57/71 of April 10th, 1973.
From the above position of the law, the Appellant’s 1st issue did not come from or enure from and is not derivable from the ground 1 of the notice of appeal. This is not a matter of technicality but one of law that for an issue to be live and competent for consideration and decision in an appeal, it must have arisen from the grounds of the appeal. See Regd. Trustees of Apostolic Faith Mission v. James (1987) 7 SCNJ 167; Modupe v. State (1988) 9 SCNJ 1; A.P. Ltd. v. Owodunni (1991) 8 NWLR (210) 391; Mark v Eke (2004) 1 SC (Pt.II) 1; University of Uyo v Essel (2006) ALL FWLR (315) 80.
Although the Appellant’s 1st issue is not derivable from the ground 1 of the notice of appeal, it appears to be so from ground 2 and therefore saved thereby. Incidentally, the Appellant’s issue 2 said to have been distilled from the same ground 2, is in substance, the same with the Issue 1 and I am prepared to consider them as a single issue arising from the Appellant’s ground 2.

Since no valid issue was distilled from the ground 1 on the notice of appeal, it is deemed abandoned and struck out. See Reg. Trustees of Ifelogu Friendly Union v. Kuku (1991) 5 NWLR (189) 65; J.E. Elukpo & Sons. Ltd. v. F.H.A. (1991) 3 NWLR (179) 322; Adeniyi v Oroja [2006) ALL FWLR (324) 1839.
At the end of it at all, the Appellant’s only surviving and live issue for determination in the appeal is his issue 2 of whether or not on the state of the pleadings and evidence of the parties, the Appellant did not prove his petition against the Respondent. I would consider and determine the appeal on the basis of that issue.
The submissions by the learned counsel for the Appellant on the issue are essentially made under his issue 1 which he adopted in respect of the issue at paragraph 8.3 on page 24 of the Appellant’s brief. I would summarise the relevant portions of the submissions. The submissions are to the effect that the Respondent did not deny and controvert the Appellant’s allegations in the petition because her reaction was “rather non-committal and scanty”, utterly hollow, skimpy and shallow and wanting in substantiality.” That the Respondent did not address the specific issues raised in the petition, specifically in any manner. The cases of Neka BBB M. Co. Ltd. v ACB Ltd. (2004) ALL FWLR (198) 1175 at 1196 and Adjekpemevor v Onafeko (2000) FWLR (9) 1425 were cited on requirement of specific denial of averments in affidavits and the consequence of not doing so. It was contended by counsel that paragraphs [xx) and (xxi) considered along the Appellant’s allegation, clearly establish a genuine, strong and justifiable ground for the Appellant to seek for the dissolution of the marriage. The findings of the High Court at pages 76 and 79 of the record of the appeal were referred to by him and he argued that the High Court erred in law for saying there was no evidence to support the petition, relying on Arjay Ltd. v Airline Mgt Support Ltd. (2003) 5 WRN, 1.01 at 144.
It was the further contention of learned counsel that the Appellant had proved the uncontested facts of his petition that the Respondent’s actions and character since the marriage had been so unsatisfactory and detestable that the Appellant found it intolerable to continue living with her. He cited Law of Evidence in Nigeria; Substantive and Procedural by S. T. Hon (SAN) at page 123 and said that the evidence to sustain the Appellant’s petition was contained therein but that the High Court did not consider it because it described the Appellant’s petition to be “mish-mash statements of the petitioner” which “he would avoid the enormous responsibility of having to wade through ….at page 79 of the record of appeal. Section 15(2) of the Matrimonial Causes Act (to be called MCA after now) as well as inter alia, the case of Damulak v Damulak (2004) 8 NWLR (874) 151 and Akinbuwa v Akinbuwa (1998) 7 NWLR [559] 661 at 671 were cited on what amounts to cruelty in matrimonial proceedings. According to counsel, the High Court merely preferred the cross petition of the Respondent on ground of acceptable style of presentation against the evidence of the Appellant in a case of mutual agreement by the parties for the dissolution of the marriage. He said the dismissal of the Appellant’s petition on ground of improper presentation did not consider the principles of fair hearing under which the High Court had the duty to consider the merit of the petition, citing cases on application of Rules of Court. We are urged to hold that the dismissal of the Appellant’s petition was on technical grounds which resulted to injustice and unfairness to him, reliance was placed on A-G, Bendel State v Aideyan (1989) ALL NLR 663 at 668.
Once more, learned counsel said that upon the state of the pleadings and evidence adduced at the trial of the petition, the Appellant had effectively discharged the burden of proving his petition as required by law and is entitled to the reliefs he sought “particularly on the ground that the Respondent failed to contradict a good part of the essential and relevant facts that the Appellant relied on in proof of the allegations against her.” We are urged to allow the appeal on the ground and set aside the decision by the High Court. For the Respondent, the submissions on the issue raised in the Respondent’s brief are that the petition of the Appellant had failed to disclose the ground for seeking the dissolution of the marriage as prescribed by Section 15(2) of the MCA. Paragraph 6 of the petition was referred to and the case of Ojukwu v Ojukwu (2000) 11 NWLR (67) 65 at 91, was cited on one of the relief sought for by the Appellant. According to the counsel for the Respondent, the Appellant’s petition is a far cry from the format prescribed by the MCA and when a statute prescribes a particular method of enforcing a right, no other method except that prescribed in the statute shall be used, relying on Udeme v Ugwu (1997) 3 NWLR (491) 57; U.N.T.H.M.B. v Nnoti (1994) 8 NWLR (363) 367 and Akuneziri v Okenwa (2001) FWLR (35) 604. The court was prayed to dismiss the appeal for want of substance.
In the Appellant’s reply brief, it was submitted that the Appellant’s complaint in the appeal is that the High Court did not consider the facts and evidence of his petition before dismissing it. Again, the court is urged to allow the appeal and set aside the judgment of the High Court.

By the provisions of Section 15(1) of the MCA, a petition under the Act by a party to a marriage, for a decree of dissolution of the marriage may be presented to the Court by other party to the marriage upon the ground that the marriage has broken down irretrievably. Section 15(2) then makes the following provisions:-
(2) The court hearing a petition for a decree of dissolution of a marriage shall hold the marriage to have broken down irretrievably if, but only if, the petitioner satisfies the court of one or more of the following facts-
a) that the respondent has willfully and persistently refused to consummate the marriage;
b) that since the marriage the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;
c) that since the marriage the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;
d) that the respondent has deserted the petitioner for a continuous period of at least one year immediately preceding the presentation of the petition;
e) that the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition and the respondent does not object to a decree being granted;
f) that the parties to the marriage have lived apart for a continuous period of a least three years immediately preceding the presentation of the petition;
g) that the other party to the marriage has, for a period of not less than one year, failed to comply with a decree or restitution of conjugal rights made under his Act;
h) that the other party to the marriage has been absent from the petitioner for such time and in such circumstances as to provide reasonable grounds for presuming that he or she is dead.
In Section 15(3) it was provided that:-
“(3)- For the purpose of subsection (2)(e) and (f) of this Section, the parties to a marriage shall be treated as living apart unless they are living with each other in the same household.”
Supplementary provisions to the above provisions on the grounds for the dissolution of a marriage are provided in Section 16 as follows:-
(1) without prejudice to the generality of section 15(2) of this Act, the court hearing a petition for a decree of dissolution of marriage shall hold that the petitioner has satisfied the court of the fact mentioned in the said section 15(2)(c) of this Act if the petitioner satisfies the court that-
a) since the marriage, the respondent has committed rape, sodomy, or bestiality; or
b) since the marriage, the respondent has, for a period of not less than two years-
i) been a habitual drunkard; or
ii) habitually been intoxicated by reason of taking or using to excess any sedative, narcotic or stimulating drug or preparation, or has, for a parts of such a period, been a habitual drunkard and has, for the other part or parts of the period, habitually been so intoxicated; or
c) since the marriage, the respondent has within a period not exceeding five years-
i) suffered frequent conviction for crime in respect of which the respondent has been sentenced in the aggregate to imprisonment for not less than three years, and
ii) habitually left the petitioner without reasonable means of support; or
d) since the marriage, the respondent has been in prison for a period of not less than three years after conviction for an offence punishable by death or imprisonment for life or for a period of five years or more, and is still in prison at the date of the petition; or
e) since the marriage and within a period of one year immediately preceding the date of the petition, the respondent has been convicted of-
i) Having attempted to murder or unlawfully to kill the petitioner; or
ii) having committed an offence involving the intentional infliction or grievous harm or grievous hurt on the petitioner or the intent to inflict grievous harm or grievous hurt on the petitioner; or
f) the respondent has habitually and willfully failed, throughout the period of two years immediately preceding the date of the petition, to pay maintenance for the petitioner-
i) ordered to be paid under an order of, or an order registered in, a court in the Federation; or
ii) agreed to be paid under an agreement between the parties to the marriage providing for their separation; or
g) the respondent-
i) is, at the date of the petition, of unsound mind and unlikely to recover; and
ii) since the marriage and within the period of six years immediately preceding the date of the petition, has been confined for a period of, or for periods aggregating, not less than five years in an institution where persons may be confined for unsoundness of mind in accordance with law, or in more than one such institution.
2) Where a petition is based on the fact mentioned in section 15(2)(h) of this Act-
a) proof that, for a period seven years immediately preceding the date of the petition, the other party to the marriage was continually absent from the petitioner and that the petitioner has no reason to believe that the other party was alive at any time within that period, is sufficient to establish the fact in question, unless it is shown that the other party to the marriage was alive at a time within that period; and
b) a decree made pursuant to the petition shall be in the form of a decree of dissolution of marriage by reason of presumption of death.

Then on the contents of a petition, order 5 Rule 3 of the Matrimonial Causes Rules, 1983 (to be referred to as MCR after now), provides that –
“5 Rule 3- A petition shall state-
a) particulars of the marriage or purported marriage to which the petition relates;
b) particulars relating to the birth of the parties to the marriage or purported marriage;
c) particulars relating to the domicile or residence of the petitioner in Nigeria;
d) particulars of the cohabitation of the marriage;
e) the particulars relating to the children of the parties to the marriage and the children of either party to the marriage required by rule 8 of this Order;
f) particulars of previous proceedings between the parties to the marriage;
g) the facts, but not the evidence by which the facts are to be proved, relied on as constituting the ground or each ground specified in the petition, stating, if more than one ground is so specified, the facts relating to ground, as far as practicable, separately;
h) in the case of a petition for a decree of dissolution of marriage judicial separation-the matters required by rule 7 of this Order;
i) in the case of a petition for a decree of dissolution of marriage or of nullity of a voidable marriage particulars concerning the arrangements referred to in rule 14 or 15 of this Order; and
j) in the case of a petition instituting proceedings of a kind referred to in paragraph (c) of the definition of “matrimonial cause”- the matters required by Order XIV, rule 4 of these Rules.”

The petition presented or filed by the Appellant before the High Court, as a party to the marriage in question, is at pages 2-5 of the record of the appeal and even on casual perusal, it clearly complies with the form and contents of a petition as provided for in the above provisions of the MCA and MCR respectively. For instance, the petition contains all the details of particulars of the parties to the marriage and the grounds upon which the marriage was said to have broken down irretrievably. The Appellant also accompanied his petition with all the required depositions to verify and support the petition as provided for in the above provisions. The Appellant’s petition is therefore one which is in compliance with the requirements of the MCA and MCR and is for that reason a proper and valid petition filed or presented before the High Court, thereby invoking its jurisdiction to adjudicate over it.
In its judgment, after a review of the cases presented by the parties at the trial and addresses of counsel, the High Court, had stated that:-
“Now, petitions must state the specific ground or grounds relied upon in respect of what is provided for under s. 15(2) of the MCA- see Mana Ochei v Julius Ochei Suit No. 0/9D/7 Escitalt delivered on 29/5/05.
Under the Nigeria Law, a court cannot dissolve a marriage unless the court can hold that the marriage has broken down irretrievably based on the prove of at least one of the eight factual situation stated under S.15(2) of the MCA.
I must confess, that I have some difficulty, in discerning the particular grounds upon which the petition of the petitioner is based. The petition of the petitioner, together with the Reply he filed is quite copious. The main petition contained about 10 numbered paragraphs with about 24 sub-paragraphs numbered in letters (a) – (x). Similarly, the petitioner’s reply contains about 29 of numbered paragraphs.
Additionally, some of these paragraphs contain subparagraphs itemized in letters a-b, c and so on. This is not entirely unusual but my worry is that the grounds upon which the petition is presented are buried within these expansive paragraphs. Moreso, the grounds tend to be mixed-up both in language and intent.”

Then it concluded at page 79 of the record of appeal, after setting out and making reference to items ‘5 and 6’ (should be paragraphs) of the petition and section 15(2) of the MCA respectively, and lamenting on the language used by the Appellant that:-
“In this con I would avoid the enormous responsibility of having to wade through the mish-mash statements of the petitioner in the form of ground and take notice more of the presentation of the cross petition in term of the grounds ought to be proved. In short, the grounds on the petition of the petitioner are improperly set out.”
Thereafter, the High Court simply referred to the evidence of the Respondent in the cross petition that the Appellant had deserted her since 2008 and held that “the animus deserendi is established”, citing G v G (1964) P.133 and that the marriage has broken down irretrievably.

Now, no matter how bad the language used and poorly the petition of the Appellant was presented before the High Court, would not with respect, mitigate let alone be an excuse for failure or refusal or abandonment of its primary duty to consider and decide the Appellant’s petition on the basis of the evidence presented before it by him, in particular, as the party that owed the initial burden of proof, and the Respondent on the merit. The High Court cannot properly in law, “avoid the enormous responsibility” imposed on it by the constitution and the MCA, to determine the petition of the Appellant on the merit and not the form in which the petition was presented on the ground that “the petition of the petitioner, together with the Reply he filed is quite copious, and “that the grounds upon which the petition is presented are buried within these expansive paragraphs”. By the provisions of Order 21, Rules 2 and 3, non-compliance with the Rules shall not render any steps in the proceedings void. In addition, the primary duty of any court of law, is to decide the rights of the parties on the merit of the cases presented by them and not to punish them for mistakes made either by them or their counsel in the presentation of such cases before the court by deciding otherwise than in accordance with such rights. Not to consider and decide the merit of a case presented by a party on the ground of copious nature of the case or difficulty in discerning the grounds upon which the case is based at judgment level or stage by a court, is to shut out that party and punish him for mistake made in the presentation of his case. In addition to not affording such a party a fair hearing in the case, such an action would amount to failure on the part of the court to discharge its primary duty of doing substantial justice in the case as required by law.

In the Appellant’s petition, he had stated clearly, the grounds of his petition, for instance, cruelty and intolerable behavior on which he said the marriage between him and the Respondent has broken down irretrievably. The High Court had identified and acknowledged these grounds in its judgment at page 77 of the record of appeal, when it stated:-
“I am therefore bound to wonder, whether when the Petitioner uses such language as “cessation of cohabitation” or abandoning the house or” leaving the house he is putting forward, these matters as grounds for the dissolution, in addition to the ground of intolerable behavior and cruelty or not.”
Similarly, the Appellant had in paragraphs 4 and 5 of the petition stated that he and the Respondent had lived apart and did not cohabit for over two (2) years prior to the presentation of the petition.

As seen in the provision of Section 15(1) of the MCA set out earlier, the only ground upon which a petitioner for the dissolution of a marriage should base his claim is that the marriage has broken down irretrievably. That is the sole ground required and provided for a party who petitions for the dissolution of a marriage under the MCA to state. See Ibrahim v Ibrahim (2007) 1 NWLR (1015) 383. However, the Act in Section 15(2) went ahead to provide factual situations which when proved by the petitioner to its satisfaction, the court before which the petition was presented, shall hold that the marriage had broken down irretrievably. From the clear language of the Act, a petitioner needs or is required to prove anyone of the factual situations set out in the provisions for the marriage to be held to have broken irretrievably. See Damulak v Damulak (supra); Ibrahim v Ibrahim (supra). It should however be noted the situations set out in the section are not in themselves grounds for seeking the dissolution of a marriage but rather, factual situations which if proved to the satisfaction of a court, would result in the findings that a marriage has broken down irretrievably; the ground for the dissolution of the marriage.

As pointed out above, the Appellant had pleaded in his petition that his marriage with the Respondent has broken down irretrievably; the only ground required by the Act, and has set out the facts of cruelty, intolerable behavior and non-cohabitation for a period of two (2) years prior to the date of the petition. These are provided for in Section 15(2)(c) and (e) of MCA above. The Appellant has therefore presented clearly not one (1), but two (2) of the factual situations which if proved by him to the satisfaction of the High Court, it had the duty to hold that the marriage had broken down irretrievably. The High Court was undoubtedly in error to have held that the grounds of the Appellant’s petition are mixed up and difficult to ascertain or discern merely because of the use of language and form which were not strictly the ones used by the draftsman and legislature in enacting the MCA. It may be desirable for parties represented by counsel in the conduct of their cases in the superior courts to employ as far as possible, words and/or phrases used in the statutes under which they make claims set out therein, but an impression should not be created that it is a requirement of the law, non-compliance with which shall result in the dismissal of a party’s case even if the case was otherwise competent.
The Appellant had in his deposition dated and filed on the 18/10/2010 and additional deposition filed on 22/12/2010 which were adopted in evidence by him on 15/6/2011 at the hearing given evidence in line with and support of the factual situations he averred in the petition to prove that the marriage had broken down irretrievably.
From the judgment of the High Court, it is quite clear and so I agree with the learned counsel for the Appellant that apart from a review of the case presented by the Appellant and the lamentation that it was copious, the High Court did not consider and evaluate the evidence adduced by the Appellant in support of his petition, as it was under a legal duty and so bound in law to do, before eventually deciding to dismiss it on the ground that:-
“I am not satisfied with the petition of the Petitioner, as the general presentation, made the same incapable of proper articulation of evidence as required by the law. The grounds for the dissolution of the marriage were mixed up and presented in that entangled manner. It never met with the requirement of the law which requires specific and clear stating and prove of the ground or grounds relied upon.”
In a long time, I have not seen a more untenable reason in law for the abdication of a court’s primary obligation in the adjudicatory process of our legal system and dismissal of a party’s case. I am constrained to say that it is an aberration in judicial procedure in Nigeria for a court to dismiss a party’s case on the ground that it is copious or/and that it was not properly presented by the party for that is prejudicial and manifestly inconsistent with the substantial rights of the party. Let me emphasize that the courts of law, particularly the superior ones established by the constitution, do not make a practice of routinely penalizing parties for errors or mistakes of procedure committed in the conduct of their case by counsel with orders which finally terminates the care before the court by way of dismissal. Very rarely and only in exceptional circumstances would such penalties be meted out on harpless parties. The time is long gone and forgotten about when the court on its own motion would penalize a party for non-compliance with Rules of procedure which does not occasion any real prejudice or even complained of by the other party to case in the determination of substantial rights in the case. Courts do not exist for the sake of discipline but for the sake of deciding controversies or disputes between the parties that come before them. See Ojali v Ogoni (1976) 1 ALL NLR (Pt. 1) 346; Alsthom v Saraki (2000) FWLR (28) 2267.
Since the High Court did not at all or has refused to evaluate the evidence of the Appellant in support of his petition, which was its primary duty to do, that duty is now on the court to do so. See Ogundipe v Akinboboye (1991) 6 NWLR (200) 786; Adebayo v Adusei (2004) 4 NWLR (862) 44; Ajakaiye v Adedeji (1990) 7 NWLR (161) 192 at 197; Begha v Tiza (2000) 4 NWLR (652) 193 at 211 – 212.

This is not a case to be sent back to the High Court for retrial since the evidence which the High Court refused to consider and evaluate is in the record of the appeal and under 6, Rule 2(1) of the Court of Appeal Rules, 2011, all appeals shall be by way of re-hearing. As part of the rehearing of the Appellant’s petition, I would consider the evidence he adduced to support it as contained in the pointed record of the appeal.
However, I have observed that the Appellant in both pleadings and evidence in the petition has claimed as the principal relief of an order for the dissolution of the marriage. This was claimed in paragraph 10(a) of the petition and paragraph 23(a) of the deposition filed on the 18/10/2010. The Respondent in her Answer to the petition and cross petition filed on the 18/11/2010, did not deny paragraphs 4 and 5 of the Appellant’s petition and in paragraph 3, also sought for the dissolution of the marriage with the Appellant. So both parties had prayed for the dissolution thereby leaving no doubt whatsoever that the marriage between them has in fact and deed, broken down irretrievably and that they both want an official, legal and judicial pronouncement putting an end to it.
The High Court in its judgment had dissolved the marriage because it was satisfied that it had broken down irretrievably on proof of one or more of the factual situations set out in section 15(2) of the MCA. In the relief sought by the Appellant in this appeal, we are prayed to set aside the judgment of the High Court and enter judgment for the Appellant in terms of the relief he claimed. See paragraph 4.01 of the notice of appeal and paragraph 10.4 at page 27 of the Appellant’s brief. Since the relief for the dissolution of the marriage claimed by the Appellant in his petition was eventually granted by the High Court in the judgment appealed and it is the same relief being claimed by the Appellant in the appeal, there is no practical use or purpose to be served by an evaluation of the evidence adduced by the Appellant before the High Court since even if it was found to have proved that the marriage has broken down irretrievably; the order to be made by the court as the relief sought by the Appellant is one for the dissolution of the marriage. It would purely be academic to embark on the process of determining whether the High Court was right in its decision on the order of dissolution of the marriage whether on the Appellant’s grounds or those of the Respondent since the order was mutually sought by them in their respective cases. The law is known that the courts do not engage themselves in consideration of issues, points or matters that are purely academic in cases before them. See Eperokun v. University of Lagos (1986) 4 NWLR (34) 162 at 179; Olaniyi v. Aroyehun [1991) 5 NWLR (194) 652; Fame Publications v. Ecomium Ventures (2000) 8 NWLR (667) 105; A-G, Anambra State v A-G. Federation (2005) ALL FWLR (268) 1557 at 1602. It is therefore unnecessary for the court to embark on the evaluation or assessment of the evidence adduced by the Appellant in support of the factual situations set out in his petition which shows that his marriage to the Respondent has broken down irretrievably since the break down was not disputed, but in fact supported by the Respondent and found by the High Court in its judgment.

Apart from the evidence of the Appellant in support of his grounds of the petition which I have found the High Court did not consider and assess in its judgment, a perusal of the judgment would reveal that that court has considered the Appellant’s case and evidence on the consequent relief in paragraph 10(b) of the petition and paragraph 32(b) of the deposition on oath in support thereof. The evidence was assessed/evaluated by that court before it deciding that the evidence of the Respondent had more probative value. The relief is for custody of the two (2) children in the marriage. For instance, at page 80 of the record of the appeal, the High Court had stated that:-
“I found no proposed arrangement for the children of the marriage in the entire of the petition of the Petitioner. The Petitioner rather proposed to remarry and hopes that thus, the children would be well catered for. On the other hand the Respondent outlined clearly and showed a proposal for the continued care, education and maintenance of the children in the paragraph 7(1) – (v) of the cross petition. In my view it is safer to grant custody to a party that already shows an understanding as to how an eventual dissolution of the marriage would mean to the children and plans ahead for their welfare.”
The High Court had rightly restated the position of the law in its judgment that in determining the issue of custody of children in matrimonial proceedings, the welfare of the children is of paramount importance and a vital factor, though not alone, to be taken into account. See Otiti v Otiti (supra); Nana v Nana (2006) 3 NWLR (966) 1; Williams v Williams (1987) 2 NWLR (54) 66; Odogwu v. Odogwu (1992) 2 NWLR (225) 539. In deciding what the welfare of a child is, factors which have been considered relevant by the courts include:-
a) degree of familiarity between the child and each of the parents respectively,
b) the amount of affection between the child and each of the parents,
c) the respective income and position in life of each of the parents,
d) the arrangements made by the parties for the education of the child
e) the fact that one of the parents now lives as man and wife with a third party who may not welcome the presence of the child,
f) the fact that young children should as far as practicable, live and grow up together
g) the fact that in cases of children of tender ages should, unless other facts and circumstances make it undesirable, be put under the care of the mother,
h) the fact that one of the parents is still young and may wish to marry and the child may become an impediment.
These factors are only some to be considered and so each case is to be decided on the peculiar facts and circumstances placed before the court in the proceedings. See Lafun v Lafun (1967) NMLR, 401; Williams v Williams (supra); Alabi v Alabi (2007) 9 NWLR [1039) 297; Afanja v Afanja (1971) 1 U.I.L.R. 105; Odogwu v Odowgu (supra).

In its judgment, the High Court had rightly approached, considered and evaluated the evidence of the parties in respect of the custody of the two (2) children in the marriage in line with some of the factors listed above and the peculiar circumstances of the case, before arriving at the conclusion to award the custody of the children to the Respondent. I find no justification or any sound reason to interfere with that decision by the High Court on the award of custody of the children. Perhaps I should point out that the duty of this court is limited to finding out whether or not the High Court has made proper finding which the evidence before it deserves in awarding custody to the Respondent. It is not the function of the court to simply set aside the decision of a lower court on the ground only that it would have reached a different conclusion on some or even all the facts before that court. I find no procedural or substantive error in the award of custody to the Respondent by the High Court that would warrant a correction and interference with the award.
Let me also say that the award of custody of children is not automatically tied to the success of a petition or cross-petition in matrimonial proceedings. In other words, it is not the law that a party who succeeds in the proceedings shall always be awarded the custody of the children of the marriage. The above factors and others which may be relevant in a particular case in the welfare of the children are always the parameters to be considered and used in the determination of the issue of custody of children.
Next is the decision on the award of maintenance allowance to the Respondent. Here again, the High Court had considered and evaluated the evidence before it and found that the averment of the Respondent that the Appellant earns a monthly salary of N1,300,000.00 from his employment in paragraph 7(iv) of her Reply and cross petition, was not denied by the Appellant.
However, the Appellant had in paragraph 9(c) of his Reply to the Answer and cross petition of the Respondent averred thus:-
“9(a) The Petitioner moved from Geo Services (Nig) Ltd. in May, 1995 and joined Mobil Producing (Nig) Unlimited where is currently working and that he does not earn such salary shown in paragraph 7(iv) of the Respondent’s reply in a month but rather per annum.”
This averment is clearly a denial of the Respondent’s averment that the Appellant earns N1,300,000.00 per month currently from his employment with Mobil Producing Unlimited. It is therefore not correct to say that the Appellant did not deny the Respondent’s averment in respect of the income from his employment. That notwithstanding, the High Court had considered the means of the Respondent as disclosed by the evidence of the Appellant in Exh.’2′ being a retired nurse, the income of the Appellant and the custody of the two children awarded to the Respondent in arriving at the sum of N250,000.00 per month as maintenance allowance in her favour. I find no error in the procedure and factors considered in making the award on the evidence and circumstances of the case. There is no reason for the court to interfere with that award.
Finally, the High Court had also declined to consider the Appellant’s relief 10(c) of the petition and 32(c) of his deposition on the ground that the issue is subject of a pending case between the parties and therefore subjudice. That decision was sound in law and not contested or appealed against by the Appellant.
The High Court did not determine the Appellant’s relief 10(d) and 32(d) of the petition and deposition respectively. Even though not contested by being denied by the Respondent, that relief is neither here nor there because the Appellant’s name is not exclusive to him and so he does not have monopoly over it. Under the law, any person is at liberty to give and use any name he chooses for himself at any time during his life time and cannot be restricted in his choice or use of such a name. The relief cannot be granted.
In the final result, for the reasons set out earlier, I find no merit in the Appellant’s issue and the appeal. Consequently, the issue is resolved against the Appellant and the appeal dismissed accordingly.
Parties shall bear their respective costs of prosecuting the appeal.

UZO I. NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form the judgment just delivered by my learned brother Mohammed Lawal Garba, JCA.
I agree with his reasoning and conclusions in the lead judgment.
There is really no merit in this appeal and it is consequently dismissed.

ONYEKACHI A. OTISI, J.C.A.: I read in advance the Judgment just delivered by my learned Brother, Mohammed Lawal Garba JCA. The issues raised in this appeal have been completely addressed by my learned brother. I am in agreement with his reasoning and conclusion; and, also dismiss the appeal.
I abide by the Orders made in the lead Judgment.

Appearances

Chief Ansalem Eyo with A. M. OwurreFor Appellant

AND

Livinus UdofiaFor Respondent