On the 6th of March, 1995 the appellant filed a divorce petition against the respondent before the High Court of Rivers State, Port Harcourt. The respondent did not enter appearance and did not file an answer to the petition within time. On the 2nd of November 1995 the appellant gave a notice of discontinuance of the petition on and the 6th of November, 1995 the learned counsel for the appellant gave oral notice of the discontinuance of the petition. This was opposed by the learned counsel for the respondent who said that she had a motion exparte to be argued. The court then adjourned the matter to the 22nd of November, 1995 to hear argument on the question of discontinuance and for the respondent's counsel to bring an application on notice with respect to the return of properties taken away from the matrimonial home.

On the 9th of November, 1995 the appellant put I another notice of withdrawal under the Matrimonial Causes Rules. On the 22nd of November, 1995 the appellant's counsel moved to withdraw the petition. The respondent's counsel opposed the withdrawal mainly on the ground that it was an abuse of the court's process as appellant had filed before the Aba High Court a similar petition during the pendency of the petition before the High Court. Port Harcourt.

On the 29th of November, 1995 when arguments were concluded by counsel on either side, the learned trial Judge, Odili, J gave a short ruling refusing to grant the application for withdrawal of the case. The ruling which is at pages 40-41 of the record of file is quoted hereinunder:

"The matter is simple enough and I do not entertain the waste of time of court when the issue for determination is narrow and clear. I agree that the petitioner has a right to withdraw his suit. In this case special circumstances have risen and that is that before that application the petitioner went to Aba and filed another motion based on the same faces and by which time the respondent alleges through motion that a mandatory injunction be made against the petitioner for packing away properties from the matrimonial home and that has not been dealt with. Taken altogether there is indeed an abuse of the process of this court which makes it difficult for the court to look with favour the application of the petitioner (sic) now seems to have embarked on a shopping spree for courts (sic) the records purely his and not likely to be laudable. This application in the circumstance as this court intends to jealously (sic) governed and protect the judicial institution is hereby not granted and is dismissed. The motion before this court is to go on and the respondent put her house in order for the court to move forward.

Case is adjourned to 15/2/96 for hearing".

Dissatisfied with this ruling the appellant appealed to this court Aggrieved by the ruling of the court, the appellant appealed to the Court of Appeal.