Christopher Anyaegbunam Vs Catherine Anyaegbunam (1973)

LawGlobal-Hub Lead Judgment Report

A. FATAYI-WILLIAMS, J.S.C.

In her amended petition dated 23rd day of December, 1971 the petitioner, now respondent, in suit No. E/16D171 brought in the Enugu High Court, prayed that she should be judicially separated from the respondent, now appellant. She also asked the court to grant her the custody of their two children, alimony pendente lite, and also secure sums by way of maintenance for herself and the said children. Paragraph one of the said petition reads

“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: