Dr. Timothy N. Menakaya Vs Ann Okwuchukwu Menakaya (2001)

LAWGLOBAL HUB Lead Judgment Report

MOHAMMED, J.S.C.

This appeal came up for hearing on Tuesday the 3rd of July, 2001. After reading the briefs of argument and hearing the oral submissions of counsel this court unanimously allowed the appeal and dismissed the cross-appeal filed by the petitioner. This court, thereafter ordered that the petition and cross-petition be reheard de novo before another judge of the High Court of Anambra State. I then reserved my reasons for the judgment till today. I now give my reasons.

The petitioner, Dr. Timothy Ndubisi Menakaya was lawfully married to the respondent, Ann Okwuchukwu Menakaya on 21st July, 1979 at the Marriage Registry, Barnet, London, England. The couple cohabited at Barnet, London, England and Onitsha. There are three children of the marriage, Chinyelu Uchechukwu, born in June 1980, Chinedu Obiora, born in January, 1982 and Obianuju Ifeoma born in October, 1983.

On the 15th of January, 1993 Dr. Timothy Menakaya, hereinafter referred to as the petitioner, in this judgment, presented a petition to the High Court of Anambra State in the Onitsha Judicial Division praying (from the court) for a decree of dissolution of his marriage with the respondent and for an order for the custody of the children of the marriage. His reasons for asking for the above reliefs are as follows:

“(a) That the marriage has broken down irretrievably

(b) That the respondent has been in constructive desertion for the past four years, in that ever since, the respondent has denied conjugal rights to the petitioner.

(c) That the respondent has ever since aforesaid refused even to talk to the petitioner and has completely abandoned all domestic responsibilities of a wife.

(d) That consequently the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent”.

On the 23rd of January, 1993 the respondent acknowledged that a copy of the petition had been served on her. In her answer to the petition the respondent denied being in constructive desertion. She also denied depriving the petitioner of conjugal rights. On the contrary, the respondent asserted that it was the petitioner who had shunned any physical contact, sexual or otherwise, with the respondent since May 1992. In January, 1992 the petitioner and the respondent attended the wedding ceremony of petitioner’s daughter by a previous marriage, named Chioma and they chatted together and took photographs. The respondent averred that in July 1992 she attended the Medical Women’s Association of Nigeria night together with the petitioner where the petitioner was installed as patron of the Association.

In December the petitioner barred the respondent from touching him. His two sons by his previous marriage, named Ndubusi and Kenechukwu joined the petitioner in making her life uncomfortable in the matrimonial home. On 8th January, 1993 the petitioner told his nephew P.O. Balonwu SAN to tell the respondent to pack out of the matrimonial home or he would throw her property out. He threatened that if she did not he would invite the dreaded “long juju” to show her the way out. This was the last straw. The respondent who is a Chief Magistrate by profession reported the matter to the police. When the couple could not be reconciled the respondent filed a cross petition based on the following particulars:

(i) The petitioner has since May, 1992, deprived the respondent of her conjugal rights including sexual intercourse;

(ii) Since 1992, the petitioner has refused to give the respondent money to cater for feeding and other household expenses. Instead, the petitioner has been sending the nurses at his hospital to buy foodstuffs for the household to the utter embarrassment and humiliation of the respondent;

(iii) On 1st January, 1993, the petitioner ordered the respondent to vacate the marital bedroom on the 3rd of January, 1993, or be ejected with force;

(iv) On 8th January, 1993, the petitioner gave the respondent till the 12th of January, 1993, to leave the matrimonial home or be thrown out by force. The respondent is living in the matrimonial home only because of the stand of the police;

(v) Since the said 1st January, 1993, the respondent has been living in fear of her life;

(vi) The petitioner has set his two sons from a previous marriage, Ndubuisi and Kenechukwu, against the respondent and the two boys have continuously harassed and shamed the respondent as outlined supra. They have turned away visitors to the respondent by telling them that the respondent was no longer living in the premises.

The respondent has not condoned or connived at the facts specified above and is not guilty of collusion in presenting this answer and cross-petition.

The respondent seeks the following orders:

(a) An order dismissing the petition;

(b) A decree of judicial separation on the ground that the petitioner has behaved in such a way that the respondent cannot reasonably be expected to live with him;

(c) Custody of the children of the marriage with reasonable access to the petitioner;

(d) Maintenance for the respondent and the children of the marriage;

(e) That the petitioner be made to pay the costs of this petition including the respondent’s legal expenses”.

On 18th May, 1994 counsel on both sides reported to the learned trial Judge, Ononiba J. that there was a move to settle the matter out of court. The learned trial Judge recorded thus:

“By consent the petition is adjourned to 6/7/94 for report of settlement”.

Before the adjourned date the following correspondence of proposals and counter proposals were exchanged by the parties:

“1/93 28th June, 1994

Dr. Chief Ejike Vme, SAN.,

Petitioner’s Counsel,

Chancery Mansion,

14/15, Enugu Road,

Onitsha.

Dear Sir,

Suit No. 0/4D/93

Dr. T. Menakaya V. Ann Menakaya

Below are my proposals for settlement of the above suit out of court.

1. Reimbursement of rent of N120,000.00 for two years for accommodation for wife and children from January, 1993.
2. Reimbursement of expenses for maintenance and education of three children for 1 1/2 years at the rate of N9,000.00 per mensem (sic) (i.e. N3,000.00 per child)
3. Reimbursement of cost of transportation for wife and children from January to December, 1993, when wife obtained alternative transport at the rate of N5,000.00 per month.
4. Lump sum once-for-all payment on dissolution of marriage N1,000,000.00.
5. Dr. Menakaya will have access to the children at all reasonable times and the children at his request will spend part of their holidays with him.
6. Dr. Menakaya will provide transport to take the children to and from school on school days.
7. Menax Hospital or any other hospital of the choice of their father to see to the medical needs of the children.
8. Mrs. Menakaya to have custody of the children.

Yours faithfully,

(Sgd.) A.N. Anyamene

Respondent’s Counsel.

CC: The Hon Justice C. Olike.

Your Ref.

1st July, 1994

A.N. Anyamene Esq. S.A.N.,

120 Chime Avenue,

New Haven,

Enugu.

Dear Sir,

Re Suit No. O/4D/93

Dr. T.N. Menakaya V.Ann Menakaya

May I refer to your letter Ref. 1/93 of 28th June, 1994. After due consultation with my client, Dr. T.N. Menakaya, the following are our proposals in the light of yours.

To wit:

1. Your No. 1 proposal is not accepted; because the respondent being a Chief Magistrate is entitled to Government quarters like other Magistrates here in Onitsha/Ogidi; where no such quarters or accommodation is provided, which is rare, rent is paid by the Government.
2. With regard to paragraph 2 of the said proposal, the petitioner has offered N20,000.00 for the whole period for maintenance of the children and their education.
3. As regard paragraph 3, re-transportation of the respondent and the children, the petitioner offers N12,000.00 for the period spelt out.
4. In respect of proposal No.4, there is no justification for a N1,000,000.00 claim for dissolution of marriage. However, the petitioner offers a handsome and generous sum of N100,000.00 as a show of his goodness.
5. With respect to custody of the children, the petitioner concedes that up to the age of 16 years in each case. Both parents will share the children’s holiday periods.
6. Proposal No.6, that is to say, petitioner to provide means of transport to take the children to and from school on school days is accepted. However, all the children must be in boarding schools to be determined by Mr. Menakaya.
7. Menax Hospital or any other hospital of Dr. Menakaya’s choice will see to the medical needs of the children.

Yours faithfully,

(Sgd.)Chief Dr. F. Ejike O.Dme SAN.

Petitioner’s Counsel.

CC: The Hon. Justice C. Olike.

1/93

5th July, 1994.

Dr. Chief Ejike Dme, SAN,

Chancery Mansion,

14/15, Enugu Road,

Onitsha.

Dear Sir,

Suit No. O/4D/93

Dr. T Menakaya V.Ann Menakaya

Thank you for your letter No. FEODNC/30073 of 1st July, 1994.

The type or class of accommodation which Mrs. Menakaya and the children to her marriage with Dr. Menakaya are entitled to is one approximating to the standard of the accommodation which Dr. Menakaya provided for them during the subsistence of the marriage.

I am not aware that any Chief Magistrate is entitled to such type of accommodation or to rent allowance of N60,000.00 per annum which will provide such accommodation.

The N1,000.000.00 lump sum payment is not “a claim for dissolution of marriage”. It is payment which the husband makes to his divorced wife to bring her standard of living after divorce to that approximating the standard she enjoyed during the marriage. In the circumstance of this case the offer of N100,000.00 is very meagre.

Whether the children will be in boarding schools is a matter to be discussed by both parents. I say this because many parents are having second thoughts about sending their children to live in boarding schools, a lot depending on the reputation of any particular boarding school.

I have noted your counter proposals in respect of the quantum of other heads of claim.

Yours faithfully,

(Sgd.) (A.N. Anyamene)

CC: Hon. C. Olike, Onitsha”.

The case was called on 6th July, 1994. Both Chief Ejike Umeh, SAN, and A.N. Anyamene, SAN, were present. The court recorded that both Senior Advocates filed a joint application under Edict No. 16 of 1987 Section 43 and prayed the court to hear the petition in Chambers. The learned trial Judge accordingly granted the application. He then retired to his chambers to take the case. While in chambers each counsel described the extent of his client’s proposals. The learned trial Judge recorded thus:

“By consent, respondent’s proposal is admitted in evidence and marked exhibit “A”, whilst petitioner’s reply or response to exhibit “A” is admitted and marked Exhibit “B”. Respondent’s further reply is admitted as Exhibit “C”.

Mr. Anyamene explained to the judge the proposals where the parties did not agree at all in the following submission:

“Whilst we are claiming N5,000 a month they are offering 1 thousand a month. The wife has been maintaining the children since their separation in January 1993. This period is 1 1/2 years. She claimed N3,000.00 per child per month for the 18 months. They offered N20,000 for the whole period. A lump sum payment to enable the divorced wife to a level of living she had whilst the marriage was subsisting. This eliminates period payment. They accept the principle of payment, whilst we claim 1 million and they offered N100,000.00.

(i) Accommodation for the divorced wife and children. We say she is entitled to the type of accommodation the husband gave her whilst they were living together. The one she occupies now commends rent of N60,000.00 per annum.

They are saying she should get Government Quarters or get housing allowance given to public officers”.

Thereafter, and without any request from any of the counsel the learned trial Judge recorded;

“Court:- Judgment is adjourned to 18/7/94”

The learned trial Judge, Ononiba J. delivered his judgment on 18/7/94. In the judgment, Ononiba J. made the following observations;

“There is no agreement at all on the reimbursement of accommodation expenses for which the respondent is claiming N120,000 but totally rejected by the petitioner. Having outlined the position of the parties, it is now my responsibility and, I should add, a painful duty to use judicial discretion make awards or accept any of the proposals in the areas of disagreement”.

This gives the insight that the judgment is not a consent judgment. Yet the learned trial Judge, without receiving any sworn evidence went about filling the gaps of disagreement between the parties and making monetary awards. At the conclusion of his judgment the learned trial judge made the following orders:

“(1) Decree nisi dissolving the marriage celebrated between the petitioner – Timothy Ndubisi Menakaya and respondent – Ann Okwuchukwu Menakaya (nee Orakwue), on the 21st day of July 1979 at the Marriage Registry, Barnet, London.

(2) I grant custody of each of the children of the marriage to the respondent, Ann Okwuchukwu Menakaya until he or she attains the age of sixteen years.

(3) The petitioner, Dr. Timothy Ndubisi Menakaya to determine –

(a) The choice of school for the children to attend.

(b) Whether the children will live within or outside the boarding house.

(4) The petitioner will have access to the children at all reasonable times and in particular the children will spend the Christmas holidays and the long vacation less two weeks with him.

(5) The respondent will spend Easter Vacation plus two weeks of the long vacation with the children.

(6) The petitioner will provide transport to take the children to and from school on school days.

(7) The petitioner will be responsible for the medical care of the children either at the Menax Hospital or any other hospital of his choice.

(8) The petitioner will make a lump sum once and for all payment of N150,000.00 (one hundred and fifty thousand naira) to the respondent.

(9) The petitioner will reimburse the respondent a sum of N12,000 being transportation expenses for wife and children before respondent got an alternative transport.

(10) The petitioner will pay the respondent a sum of N30,000 being reimbursement for maintenance of the three children including their school fees and upkeep for 18 months.

(11) The petitioner will pay the respondent a sum of N60,000 (sixty thousand naira) being the reimbursement for rent for a period of one year after leaving the matrimonial home”.

Dissatisfied with the judgment the respondent appealed to the Court of Appeal. In a split decision of the Court of Appeal, the majority justices, coram, Niki Tobi and Ubaezonu JJCA, dismissed the appeal and affirmed the decision of the trial Judge. Ejiwunmi, JCA (as he then was) dissented and allowed the appeal. He ordered for a retrial of the petition de novo before another Judge.

The respondent, armed with eight grounds of appeal, came finally before this court challenging the decision of Niki Tobi and Ubaezonu, JJCA. Anyamene SAN., for the respondent/appellant, identified the following issues for the determination of the appeal:

“(1) Is the judgment of the court below null and void

(2) Whether the new-found exception to the application of the rule of estoppel by conduct on which Justice Niki Tobi grounded his judgment is tenable in law

(3) Was the court below right in confirming the dissolution of a marriage based on no ground for dissolution known to law

(4) Whether the monetary awards of the court below were based on any relevant facts and evidence to make them good in law.

(5) Whether the majority judgment of the court was not bad in law for failing to comply with the duty of an appellate tribunal hearing appeals and for failing to consider all the appellant’s grounds of appeal”.

Learned Senior Advocate, Dr. J.O.lbik for the petitioner, adopts the questions as formulated by the appellant’s counsel. Dr. lbik, SAN, filed a cross appeal against the majority judgment of the Court of Appeal. Learned Counsel for the appellant, Mr. Anyamene SAN, opened his submission on issue 1 based on the 1st ground of appeal. He argued that the judgment of the court below was a nullity because it was delivered during vacation period. But there was no evidence to show that 8th of August was vacation period for the Court of Appeal. The case of Itaye and Ors. v. Ekaidere (1978) 9 & 10 S.C. 35 which the learned counsel referred is not helpful to the appellant on the issue of giving judgment during vacation period. Dr. Ibik, SAN, is right to submit that there was a specific rule of court in force in the then Mid-Western State of Nigeria regulating proceedings during annual vacation. No such rule of court is contained in the Court of Appeal Rules 1981 (as amended). I have looked at the Midwestern State Notice No.131 of 26th March, 1975. It was published at page 163 of the Mid-Western State of Nigeria, Gazette No. 20, Vol. 12 of 10th April, 1975. It is a notice under Order 25, rule 5 of the High Court (Civil Procedure) Rules, 1958 issued by the Chief Justice of Mid Western State of Nigeria. The notice reads:

“IN THE HIGH COURT OF JUSTICE MIDWESTERN STATE OF NIGERIA

NOTICE UNDER ORDER 25 RULES OF THE HIGH COURT (CIVIL PROCED URE) RULES I958

ANNUAL VACATION

OBOREUBORI ITAYE & 70RS. V CHIEF OKUOWE EKAIDERE & 4 ORS.

The High Court of Midwestern State of Nigeria will be on vacation as from Thursday, 31st July, 19-75 until Saturday 30th August, 1975 (both dates inclusive).

1. The Legal Year 1975/76 will commence on the 1st day September, 1975.
2. During the vacation, their Lordships will deal with urgent civil criminal matters, the civil actions may be heard only by leave of a Judge on the application of both parties to the suit or their

counsel.

Dated at Benin City this 26th day of March, 1975.

Mason Begho

(Chief Justice)

Midwestern State of Nigeria”.

There is no similar notice in the Court of Appeal Rules 1981 (as amended).

Mr. Anyamene SAN raised a second argument on issue 1 which states that the judgment of the court below was null and void, because the majority judgment of the court below cannot confirm a judgment that is itself null and void. This is the crux of this appeal. Mr. Anyamene SAN, submitted that both the majority and minority judgments of the court below found fundamental irregularities and errors in the judgment of the High Court. Learned Counsel referred to an extract in the judgment of Niki Tobi, JCA, where the learned justice opined as follows:

“Although section 103(2) of the Matrimonial Causes Act seems to vindicate Order 1 rule 9(1) of the Matrimonial Causes rules, the intention of both the Act and the rules is that proceedings for a decree of dissolution of marriage should be heard in public. This is clear from a community interpretation of section 103(1) of the Act and Order 1 rule 9(4) of the rules. The legal effect of all the above analysis which sound abstract and technical is that the procedure the learned trial Judge was led to adopt violated or infringed the provisions of both the Act and the rules”.

In the minority judgment, Ejiwunmi JCA, (as he then was) held that the learned trial Judge was wrong to allow a matrimonial cause or matter to be heard in Chambers. Learned justice referred to the case of Oviasu v. Oviasu (1973) 11 S.C. 315 in which trial Judge heard the whole proceedings for the dissolution of marriage in chambers. On appeal to Supreme Court the judgment was set aside and retrial ordered because of fundamental irregularity. The Supreme Court said;

“We regard the irregularity as being fundamental, which touches the legality of the whole proceedings including the judgment and the incidental orders made thereafter. We therefore hold that all that happened in the Judge’s chambers did not constitute a regular hearing of an action in court”.

I will go back to the provisions of section 103 (1) and (2) of Matrimonial Causes Act which Niki Tobi JCA, referred to in his judgment. The learned Justice held that the intention of both Section 103(2) of the Matrimonial Causes Act and Order 1 rule 9(4) of the Matrimonial Causes rules is that the proceedings for a decree of dissolution of marriage should be heard in public. Yet the learned justice came with an opinion that estoppel by conduct will be an answer to the requirement of the law that the proceedings of this case should be in open court. Learned Justice cited many cases on estoppel. The learned Justice explained that if a man whatever his real meaning may be so conducts himself that a reasonable man would take his conduct to mean a certain representation of fact and the latter was intended to act upon it in a particular way, and he with such belief, does act in that way to his damage, the first is estopped from denying the facts as represented. He referred to Chief Ikpuku and Ors. v. Chief Ikpuku (1991) 5 NWLR (Part 193) 571; Iga & Ors. v. Amakiri & Ors (1976) 2 S.C. 1; Ude v. Nwara (1993) 2 NWLR (Part 278) 638. Niki Tobi, JCA, was unhappy with the decision of Anyamene SAN, in filing an appeal against the decision of the trial Judge to hear this divorce petition in chambers when as a matter of fact Mr. Anyamene jointly with Chief Umeh SAN, applied to the court to hear the proceedings in chambers. Niki Tobi, JCA used many pages of his judgment to hurl insulting strictures on the person of Anyamene SAN, and his professional integrity. With respect, the learned Justice is wrong to vilify the learned counsel for exercising a constitutional right which the law permits him to do.

Now I may ask; “Is the action of the Judge to hear this petition in chambers and his judgment worth the defence given to it by the learned Justice of the Court of Appeal” The action of the Judge is an open violation of the provision of Section 103 (1) & (2) of Matrimonial Causes Act. The section reads:

“103(1) Except to the extent to which rules of court make provision for proceedings or part of proceedings to be heard in chambers, the jurisdiction of a court under this Act shall, subject to the next succeeding subsection, be exercised in open court.

(2) Where in proceedings under this Act the court is satisfied that there are special circumstances that make it desirable in the interests of the proper administration of justice that the proceedings or any part of the proceedings should not be beard in open court, the court may order that any persons not being parties to the proceedings or their legal advisers shall be excluded during the hearing of the proceedings or the part of the proceedings, as the case may be”.

The provision of the statute is therefore very clear. The law is that it is mandatory that proceedings in respect of petition for dissolution of marriage shall be in public. Neither the parties nor the court can decide otherwise. A mandatory statutory provision directing a procedure to be followed in the performance of any duty is not a party’s personal right to be waived. You cannot resort to estoppel to compromise a statutory provision of a public nature. Estoppel is the inhibition to assert a personal right, benefit or advantage in consequence of previous conduct, admission or in consequence of a final adjudication of the matter in a court of law. Any decision made by a court contrary to a mandatory statutory provision is a nullity.

The law is very clear that proceedings for a decree of:

(i) dissolution of marriage;

(ii) nullity of marriage;

(iii) Judicial separation;

(iv) Restitution of conjugal rights; or

(v) Jactitation of marriage.

shall be conducted in open court. See Order 1 rule 9(4) (a) of Matrimonial Causes Rules. Although the court recorded that both Senior Counsel had given consent to hearing in chambers but since the statute has made it mandatory that such proceedings must be in open court the consent of counsel is immaterial and of no consequence. The court should not succumb to such call to conduct illegal proceedings. For this reason the proceedings conducted by Ononiba, J, in chambers and the judgment delivered thereto are a nullity.

Another irregularity which the majority decision of the Court of Appeal upheld is the judgment of the learned trial Judge. It is agreed by both the majority justices and the minority that the judgment of Oninoba, J. is not a consent judgment. As I reproduced the facts earlier in this judgment, the learned trial Judge did not receive any evidence before he wrote his judgment. When counsel appeared before him in chambers and put forward the parties’ proposals and counter proposals it was clear to the court that the parties were not ad idem. Now it is a big question to ask; where did the learned trial Judge find the evidence which guided him to exercise his discretion to decide on the issues of disagreement between the parties Ejiwunmi, JCA in his minority judgment made a correct observation where he said;

“The function of a court is to decide between the parties on the basis of what has been so demonstrated and tested. What was demonstrated in court at this trial failed to support the prosecution case, and the magistrate should have dismissed the case. It was no part of his

“It is also pertinent that I should refer to the provisions of S.70(1) of the Matrimonial Causes Act, which provides:

“S.70(1) subject to this section, the court may, in proceedings with respect to the maintenance of a party to a marriage, or of children of the marriage, other than proceedings for an order for maintenance pending the disposal of proceedings, make such order as it thinks proper, having regard to the means, earning capacity and conduct of the parties to the marriage and all other relevant circumstances.”

In the case in hand, the court was certainly faced with conflicting proposals for maintenance etc, but it did not consider it necessary to take evidence to resolve the conflicts before reaching conclusions thereon”.

Niki Tobi, JCA, was conscious of the fact that there was no evidence upon which the judgment of the trial court was based, yet the learned Justice embarked on assessment and monetary awards. In his judgment the learned justice said;

“I shall be very much guided by the above random principles, as well as the provisions of sections 69 to 73 of the MCA, 1990 in my assessment of awards, and I will involve myself in some arithmetical calculations; although my arithmetic is not the best”.

With respect, the learned Justice is wrong. It is not for the court to embark on assessment and awards without evidence supporting such exercise. See Shodeinde v.Ahmadiyya Movement in Islam (1983) 2 SCNLR 284; Muhammadu Duriminiya v. Commissioner of Police (1961) N.R.N.L.R. page 70. This was a case of fraudulent false accounting and stealing where the trial magistrate conducted some investigation of account books without any evidence supporting such exercise. The appellate Division of the High Court of Northern Nigeria, in allowing the appeal and ordering for a retrial held as follows:

duty to do cloistered justice by making an inquiry into the case outside court – not even by the examination of documents which were in evidence, when the documents had not been examined in court and the magistrate’s examination disclosed things that had not been brought out and exposed to test in court, or were not things that, at least, must have been noticed in court. We will not do it ourselves; neither will we allow the respondent to demonstrate now in this court what as prosecutor he had the opportunity of demonstrating at the trial. The appeal will be allowed”.

The trial court’s judgment which the majority justices of the Court of Appeal, affirmed was written without any evidence supporting the decision. It is a misdirection for a trial Judge to give judgment on an issue on which there is no evidence adduced whatsoever. In the case of J.B. Soboyede & Ors. v.Minister of Lands and Housing, Western Nigeria (1974) 1 All NLR (Pt.1) 408 the respondents took out an originating summons for the determination by the court of persons entitled to be paid compensation in respect of portions or all of lands compulsorily acquired by them. The learned trial Judge decided this issue, and then proceeded on his own to decide the amount of compensation, and to make awards. On appeal, the Supreme Court held:

“We have come to the conclusion that the contention of counsel on all sides is well founded. As it will be seen in the case of Ashamu, there was an application followed by a general agreement of all counsel concerned that the amount of compensation payable should be assessed by the court. Hence, even though that was not an issue on the originating summons, the learned trial Judge was entitled, as he did, to proceed to a determination of that issue. In the present case, there was, as learned counsel complained, no such application and/or agreement and, worse still, none of the parties led any evidence touching upon the amount of compensation either demanded by the claimants or offered by the respondents. The learned trial Judge had taken as a basis for his assessment a figure arrived at in respect of an adjacent portion of land but he had no evidence whatsoever with respect to the value of the land on which he purported to pronounce a value. We think it right to observe that this is particularly risky especially in matters commenced by originating summonses since the purpose of such a summons is usually stated on the application and almost always no pleadings are required or filed. In the present case, the error of such a procedure is manifest. (italics is mine)

It is plain therefore that the judgment of Ononiba, J having been written, without any evidence supporting the decision is void. Equally, the majority judgment of the Court of Appeal which affirmed a void decision is also a nullity. An exercise of discretion by the court must be guided by evidence adduced. I therefore answer the question in issue 1 as formulated by Anyamene, SAN in the affirmative. It is because of these reasons that I allowed the appeal, set aside the majority judgment of the Court of Appeal and ordered the retrial of the petition and cross-petition de novo before another Judge of Anambra State. The cross-appeal is also dismissed being brought against a nullity judgment. I award N10,000.00 costs in favour of the respondent/appellant.

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SC.169/96