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Mbah v. Mbah

JOSEPH SUNDAY MBAH

V

BEATRICE MBAH

COURT OF APPEAL

( JOS DIVISION )

I. T. MUHAMMAD, JCA ( Presided and Read the Lead Judgment )

OLUDADE OLADAPO OBADINA, JCA

IFEYINWA CECILIA NZEAKO, JCA

CA/J/221/2000

TUESDAY 23RD APRIL, 2002 

COURT - Competence of - When a court is competent

COURT - Interlocutory application before the court - Need for court to refrain from determing substantive matter while determing same

EVIDENCE - Burden of proof  - On whom lies

EVIDENCE - Marriage under the Marriage Act  -  What amounts to concrete and convincing evidence of

EVIDENCE - Proof - Evidence of certain facts - Onus of proof of

JURISDICTION  - When a court is said to have jurisdiction

JURISDICTION - Jurisdiction of court - Meaning of

LEGAL PRACTITIONERS - Counsel - Need for to comport himself with dignity  when replying to an intemprate language used on him by the Judge

LEGAL PRACTITIONERS  - Counsel - Need for to employ polite language in portraying  remarks made by Judge

MATRIMONIAL CAUSES - Marriage under the Act  - Evidence of

PRACTICE AND PROCEDURE - Interlocutory application before the court -  Need for court to refrain from determing substantive matter while determing same

Issues:

1.            Whether the marriage between the appellant and the respondent is a valid statutory marriage within the meaning of the law so as to clothe the trial court with jurisdiction to hear the petition for dissolution of marriage.

2.            On whom does the burden of proof that the marriage between the parties herein is a valid statutory marriage or marriage under the Act lie?

3.            Whether it was proper for the trial Judge to have refused to rule on the alternative objection of the appellant in the answer under protest on the grounds that the objection did not state either in form 16 or the affidavit in support those essential details and contents of a valid petition and condition precedent before filing petition, when the respondent did not complain and the objection was on a point of law.

Facts:

The petitioner in this case sought an order of the trial High Court  for dissolution of the marriage between her and her husband the appellant, on the ground that the marriage had broken down irretrievably.  According to the petitioner, the marriage was solemnized at the St. Mary’s Catholic Church, Apapa in accordance with Christian rites. The petitioner however exhibited Certificate of Marriage issued under S.24 of the Marriage Act (form E) and numbered as 1418 by the St.Mary’s Catholic Church, and the Notice of Marriage between the parties issued by the Marriage Registry of the Federal Ministry of Internal Affairs, Ikoyi Lagos. The respondent asserted that the marriage was a customary marriage within the meaning of the law which was done in accordance with Ibo native law and custom.  The appellant stated categorically that the marriage between him and the petitioner was not a marriage under the Act and that the Church marriage was celebrated after the birth of their first baby just for the purpose of obtaining Church blessings and for the church to recognise him and the petitioner as husband and wife in order to enable them take Holy Communion in the Church. The appellant therefore raised an objection to the jurisdiction of the trial court . The trial court dismissed the objection and held that it had jurisdiction to hear the petition. Dissatisfied, the appellant appealed to the Court of Appeal.