OMONZANE v. OMONZANE
(2020)LCN/15475(CA)
In The Court Of Appeal
(IBADAN JUDICIAL DIVISION)
On Tuesday, December 15, 2020
CA/IB/162/2017
RATIO
DISCRETION OF COURT: JUDICIAL AND JUDICIOUS EXERCISE OF THE DISCRETIONARY POWER OF A COURT
It is settled law that the discretion of a Court must be exercised judicially and judiciously. Such discretion must be exercised on materials placed before the Court and not in vacuo. A party who seeks the exercise of the discretion of Court in his favour has an onerous duty to place sufficient materials before it to enable it exercise its discretion judicially and judiciously. An application will therefore fail where no sufficient material is placed before the Court. See GENERAL & AVIATION SERVICES LIMITED VS. THAHAL (2004) 10 NWLR (PT. 880) 50; KHALIFA VS. ONOTU & ANOR (2016) LPELR- 41163 (CA); ADESANYA VS. LAWAL (2007) 7 NWLR (PT. 1032) 54. In Re: YAR’ADUA (2011) 17 NWLR (PT. 1277) 567 AT 585-586, PARAS, E-B, the Supreme Court, per I.T. Muhammad, JSC (now CJN) held as follows:
“This Court has stated the law and even the practice in a number of decisions, that for a person to approach this Court or any other Court for that matter, with an application which seeks the Court’s indulgence, such a person is duty bound to place sufficient materials before the Court in order to assist the Court exercise its discretion in his favour. Such discretionary exercise must be founded upon facts and circumstances presented to the Court from which a conclusion governed by law will have to be drawn. See: Duwin Pharm Chem. V. Beneks Pharm & Cosmetics Ltd. (2000) 15 NWLR (Pt. 689) 66. It is also said that judicial exercise of a discretion is not arbitrary or fanciful because it is done with sufficient, correct and convincing reasons. See: Ekwunife v. Wayne W.A, Ltd. 1989 5 NWLR (Pt.122) 422 at page 448; Shell Petroleum Dev. Co. v. Lawson – Jack (1998) 4 NWLR (Pt. 545) 249 at page 280; Egwu v. Madonkwu (1997) 4 NWLR (Pt. 501) 574 at 588. In Unilag v. Aigoro (1985) 1 NSCC, (1985) 1 NWLR (Pt. 1) 143, Bello, J.S.C. (as he then was but later CJN, of blessed memory), relying on the case of Jones v. Curling 13 Q.B. p. 262, stated that the guiding principle in exercise of discretion is that, it being judicially must at all times be exercised not only judicially but also judiciously on sufficient materials. See further: Saffienddine v. C.O.P. (1971) 1 All NLR 8. I fail to find such sufficient materials in this application. If I were to grant such indulgence, it will then be an indulgence not rooted in any legal principle known to law and practice. By mere looking at the affidavit evidence, I seem to be convinced by the evidence placed before the Court through counter affidavits by the respondents in whose favour the pendulum of the scale of justice must tilt.” PER FOLASADE AYODEJI OJO, J.C.A.
APPEAL: IMPLICATION OF A FAILURE TO SEEK AND OBTAIN LEAVE FROM THE TRIAL COURT
It is the settled position of the law that failure to seek and obtain leave from the trial Court or Court of Appeal, to Appeal on Grounds of mixed law and fact is fatal to that Ground of Appeal. It is a condition precedent to seek and obtain leave. See the following cases:-
– CHIEF D.S. YARO VS. AREWA CONSTRUCTION LIMITED (IN RECEIVERSHIP) & OTHERS (2007) 6 SCNJ PAGE 418.
– GODFREY ANUKAM VS. FELIX ANUKAM (2008) 2 SCNJ PAGE 62.
In the case of OBA FELIX ABIDOYE & ORS VS. OBA JACOB ALAWODE & ORS (2001) 3 SC PAGE 1 AT PAGE 7 PARAGRAPHS 15-25, the Supreme Court held among Others as follows:-
“As this Court pointed out in several decided cases such as in-OGBECHIE & ORS VS.ONOCHIE & ORS (1986) 2 NWLR PART 23 PAGE 484 AT 488, what is important in determining whether a ground of Appeal involved questions of law or fact or mixed law and fact is not its cognomen, nor its designation as Error in law.
It is rather the essence of the ground, the reality of the complaint embedded in that name that determines what any particular ground involves.”
See – OJEMEN VS. MOMODU (1983) 3 S.C PAGE 173.
– UNITED BANK FOR AFRICA LTD VS. STAHLBAU GMBH & CO (1989) 3 NWLR PART 110 PAGE 374, 377 AND 410. PER JIMI OLUKAYODE BADA, J.C.A.
Before Our Lordships:
Jimi Olukayode Bada Justice of the Court of Appeal
Haruna Simon Tsammani Justice of the Court of Appeal
Folasade Ayodeji Ojo Justice of the Court of Appeal
Between
CHARLES OMONZANE APPELANT(S)
And
MRS. DEBORAH N. OMONZANE RESPONDENT(S)
JIMI OLUKAYODE BADA, J.C.A. (Delivering the Leading Judgment): This appeal emanated from the interlocutory Ruling of Ogun State High Court, Ota Judicial Division in Suit NO: HCT/149/2016 – BETWEEN DEBORAH NKEM OMONZANE VS CHARLES AIMINUMEFOH OMONZANE (2) MISS JOY OTEGA KROFEGHA delivered on the 28th day of February, 2017.
Briefly the facts of this case are that the Respondent as Petitioner at the trial Court by a Petition filed on 1st of April, 2016 in which she sought inter alia a Decree of Dissolution of Marriage on the grounds of Adultery and Intolerability, Cruelty, Desertion for a least one year and on the ground that the Appellant herein has behaved in such a way that the Respondent herein cannot reasonably be expected to live with him. See pages 1-52 of the Record of Appeal.
On the 27th day of September 2016, the Respondent filed an application for ancillary reliefs for welfare, maintenance and injunction to restrain the Appellant herein from taking any steps that could defeat the matrimonial proceedings. The following ancillary reliefs were sought in the application, namely:
(1) An Order of this Honourable Court with respect to maintenance welfare, advancement and education of the children of the marriage, directing,
(a) The 1st Respondent to continue with the maintenance welfare and education of the four (4) children of the marriage, namely:
(i) Miss Ihinosen Charlene Omonzane
(ii) Miss Emanehi Medlene Omonzane
(iii) Master Leslie Aimunumefo Omonzane and
(iv) Master Hansley Eromosele Omonzane, pending the hearing and determination of the substantive petition.
(2) An Order granting custody of the children of the marriage to the Petitioner, pending the hearing and determination of the petition.
(3) An Order of interlocutory injunction restraining the 1st Respondent, either by himself or his agents, servants and privies or all or any persons acting on his behalf or through him from selling off, conveying, alienating or transferring title to any third party any of the real or personal property owned, alone by the 1st respondent or which the 1st Respondent jointly owned with the Petitioner, or which belongs to any business or company jointly owned by the Petitioner and Respondent (as listed and particularized in the Affidavit in Support of this Application) for or for no valuable consideration, in a manner that may defeat, overreach or frustrate the reliefs orders and awards that may be granted by this Honourable Court in the substantive petition, in any way or manner whatsoever or howsoever, pending the hearing and determination of the substantive petition.
(4) An Order of interlocutory injunction restraining the 1st Respondent from further assault, harassing, beating and violating the Petitioner’s right to human dignity as entrenched in the Constitution of the Federal Republic of Nigeria pending the determination of the petition.
(5) And for such further Order or orders as this Honourable Court may deem fit to make in the circumstances.
The application was supported by an affidavit and further affidavit while the Appellant filed Counter Affidavit against the application.
At the conclusion of hearing in this application the trial Court delivered its Ruling in the following terms:-
“…I thus make the following Orders as regards the children of the marriage in view of the facts deposed to on the affidavit in support and the pendency of this application since 5 months ago when it was filed and the particular deposition, further affidavit that the 2 younger children will be throughout (sic) school today shown in Exhibits C1 & C2 attached to the further affidavit from Olawale Olashore International School and the attached exhibits from the 2 older children.
(a) The sum of $25,000, USD for Miss Chinosen Charlene Omonzane towards her tuition and accommodation on the next USA (sic) for the present school year.
(b) Miss Emanehi Medline Omonzane – the sum of $42,000 Canadian dollars for her yearly tuition, accommodation and feeding fees for the present school year.
(c) Master Hansley Eromosele – the sum of N4Million Naira towards his school accommodation and tuition.
(d) Master Leslie Omonzane – the sum of N4Million towards his school accommodation and tuition.
The 1st Respondent is directed to pay these sums of money immediately to the school of the children directly or through the Petitioner or through the 1st and 2nd children i.e Ihinosen and Emanehi Omonzane. I am not unmindful of the fact that he asked for a paternity test to determine the paternity of the 4 children.
I also direct that the paternity tests preferably D.N.A. test for the children be conducted for the 4 children within the next 3 months as I direct that he shall bear the cost of the said paternity tests including the cost of bringing the children in the U.S.A. and Canada to and from their Universities as well as for arranging for the tests to be held in a reputable Medical Institution.
The Interlocutory orders made in respect of the children shall abide until the determination of this suit or until the results of the paternity tests conducted are made available to the Court as the 1st Respondent is not thereby prejudiced by paying the children’s maintenance for this period as he had been doing so before. The 1st Respondent shall also be responsible for the maintenance allowances for food, clothing, medical expenses, extra coaching and teaching of Hansley and Leslie in the sum of N3million pending the hearing and determination of this suit or till the result of the paternity test is made available to the Court. These sums of money is to be paid to the Petitioner who is also granted custody of the children of the marriage pending the determination of this suit.
The 1st Respondent is also to make a lump payment of the sum of N6 Million per annum to the Petitioner for her maintenance pending the determination of this suit having regard to the contents of paragraph 12g of the affidavit in support whereby the Petitioner is asking for the total sum of N12.5million for the maintenance. He is also to provide the Petitioner with her old car or type of car she was using before or another one, its value or as particularly classified in paragraph 14g of the affidavit. The Order B made having regard to the mode of living of the parties before the institution of this suit, this order shall also abide pending the determination of this suit.
The 1st Respondent is restrained from disposing off the items listed in paragraphs 14 1(a), (c), (d), (e) as well as the companies listed in paragraphs 14(f) and the vehicles listed in 14 1(h) and the items listed as 14(3) (4) on the affidavit in support pending the determination of this suit.
The 1st Respondent also restrained from further assaulting or harassing or violating the dignity of the Petitioner pending the hearing and determination of this suit.”
The Appellant who is dissatisfied with the Ruling of the trial Court appealed to this Court.
The learned Counsel for the Appellant formulated two issues for the determination of the appeal. The said issues are reproduced as follows:-
(1) Whether the learned trial Judge lacked jurisdiction to grant injunctive orders in respect of the Appellant’s landed properties by the virtue of being outside the purview, meaning and definition of matters or issue recognized as matrimonial causes under the Matrimonial Causes Act (Distilled from Ground 1)
(2) Whether the learned trial Judge erred in law and wrongfully exercised his discretion when he ignored the counter affidavit of the Appellant vis-à-vis the Provisions of Part IV Section 70 of the Matrimonial Causes Act and Order XIV Rule 4(4) of the Matrimonial Causes Rules.
On the other hand, the learned Counsel for the Respondent also formulated two issues for the determination of the appeal. The said issues are reproduced as follows:-
(1) Whether the learned trial Judge lacked jurisdiction to restrain the Appellant from taking steps that are capable of defeating the outcome of the matrimonial proceedings pending before it. (Distilled from Ground 1)
(2) Whether the learned trial Judge erred when he heard and granted ancillary reliefs for maintenance welfare and advancement and education pending the determination of the substantive petition as sought in the Petitioners/Respondent’s application dated 27th September, 2016. (Distilled from Ground 2)
PRELIMINARY OBJECTION:
The learned Counsel for the Respondent filed a Notice of Preliminary Objection which was argued in the Respondent’s brief of argument. The said objections are in the following terms:-
(1) An Order striking out the Notice of Appeal of the Appellant dated and filed on 14th March, 2017 (and or the Grounds of Appeal herein) for being incompetent.
(2) Such further or Orders as this Honourable Court may deem fit to make in the circumstances of this case.
GROUNDS OF OBJECTION
It was contended on behalf of the Respondent that the Appellant’s Grounds 1 and 2 are based on facts and/or mixed law and facts and being an interlocutory Appeal requires leave of the Lower Court or this Court.
The Learned Counsel for the Respondent argued the Preliminary objection in Respondents’ Brief of Argument. He relied on SECTION 241 (1), 242 (1) OF THE 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA (AS AMENDED).
He submitted that it is not how a Ground of Appeal is christened by an Appellant that gives it its true nature. He went further that the Court will always examine the complaint in the Grounds critically to determine whether it falls into the category of complaint of law or facts. He relied on the following cases.
– IKKO KASHADADI VS. INGILA SARKIN NOMA (2007) 13 NWLR PART 1052 PAGE 510 PARTICULARLY AT 525 PARAGRAPH F-H.
– IBIYEYE VS. FOJULE (2006) 3 NWLR PART 968 PAGE 640 AT 654 PARAGRAPHS E-H.
The Learned Counsel for the Respondent urged this Court in the Respondents’ Brief to disregard the attempt by the Appellant to christen the Grounds of Appeal as in Law and to examine the Grounds critically. He relied on the case of – NWABUEZE VS. NIPOST (2006) 8 NWLR PART 983 PAGE 480 PARTICULARLY AT 511 PARAGRAPHS F-G.
On the whole, it was submitted on behalf of the Respondent that Grounds 1 and 2 of the Appellants’ Notice of Appeal are of facts or mixed law and facts and require leave of this Court or the Trial Court to Appeal. It was submitted further that Grounds 1 and 2 of the Notice of Appeal are incompetent and liable to be struck out.
In his response, the Learned Counsel for the Appellant in his Appellants’ Reply Brief of Argument submitted that Ground 1 of the Notice of Appeal is a complaint of misunderstanding of the law by the Trial Court, that it has no power under the Matrimonial Causes Act to grant the Order of Interlocutory injunction against the Appellant when such is not cognizable under the statute, which in essence touches on the question of the jurisdiction of the Court. It was also submitted that a question on jurisdiction is a question of law. He relied on the case of – MADUKOLU VS. NKEMDILIM (1962) 2 SCNLR PAGE 341.
On Ground 2, it was submitted that where a Court reaches a conclusion which cannot reasonably be drawn from facts as found, the Superior Court will assume that there has been a misconception of law thereby making it a Ground of law. He relied on the following cases of – OGBECHIE VS. ONOCHIE (1986) 2 NWLR PART 23 PAGE 484.
– OLU-IBUKUN VS. OLU-IBUKUN (1974) 9 NSCC PAGE 91.
– ERINMWINGBOVO VS. AMAYO (1994) 3 NWLR PART 332 PAGE 365.
– WUAM VS. AKO (1999) 5 NWLR PART 601 AT PAGE 150.
RESOLUTION
It is the settled position of the law that failure to seek and obtain leave from the trial Court or Court of Appeal, to Appeal on Grounds of mixed law and fact is fatal to that Ground of Appeal. It is a condition precedent to seek and obtain leave. See the following cases:-
– CHIEF D.S. YARO VS. AREWA CONSTRUCTION LIMITED (IN RECEIVERSHIP) & OTHERS (2007) 6 SCNJ PAGE 418.
– GODFREY ANUKAM VS. FELIX ANUKAM (2008) 2 SCNJ PAGE 62.
In the case of OBA FELIX ABIDOYE & ORS VS. OBA JACOB ALAWODE & ORS (2001) 3 SC PAGE 1 AT PAGE 7 PARAGRAPHS 15-25, the Supreme Court held among Others as follows:-
“As this Court pointed out in several decided cases such as in-OGBECHIE & ORS VS.ONOCHIE & ORS (1986) 2 NWLR PART 23 PAGE 484 AT 488, what is important in determining whether a ground of Appeal involved questions of law or fact or mixed law and fact is not its cognomen, nor its designation as Error in law.
It is rather the essence of the ground, the reality of the complaint embedded in that name that determines what any particular ground involves.”
See – OJEMEN VS. MOMODU (1983) 3 S.C PAGE 173.
– UNITED BANK FOR AFRICA LTD VS. STAHLBAU GMBH & CO (1989) 3 NWLR PART 110 PAGE 374, 377 AND 410.
On what will amount to ground of mixed law and fact, the Supreme Court in the same case – OBA FELIX ABIDOYE & OTHERS VS OBA JACOB ALAWODE & ORS (SUPRA) AT PAGE 70 PARAGRAPH 10 stated thus:-
“A careful examination of the only ground of appeal in this case set out above and particulars of error revealed that the Appellants are questioning the evaluation of facts by the lower Court before the application of the law and therefore the ground involves a question of mixed law and fact.”
Also in the case of GODFREY ANUKAM VS FELIX ANUKAM (supra), the Supreme Court at page 70 paragraphs 10 to 30 stated the guidelines as to the distinction between a ground of law on one hand and a ground of mixed law and fact or facts on the other hand as follows:-
(1) Where a ground of appeal complains of an error involving a misunderstanding or a misapplication of the law to prove admitted facts, it is a ground law.
See AMUDA VS ADELODUN (1994) 8 NWLR PART 360 PAGE 23 AT 30.A
(2) A ground of appeal which complains of the lower Court’s exercise of its discretion necessarily involves the appellate Court’s consideration of the peculiar facts and circumstances upon which the discretion was exercised and so one of facts. But where the ground complains of the lower Court’s use of wrong principles in the exercise of its discretion, the facts and circumstances in which the discretion was exercised are no longer in issue. The only issue in such case is that of the alleged wrong principle and therefore one of law alone.
See – METAL CONSTRUCTION (WA) LTD VS D. A. MIGLIORE & ORS (1990) 1 NWLR PART 126 PAGE 299 AT 315.
(3) A ground of appeal which complains of the lower Court’s evaluation of evidence and alleges sufficiency or insufficiency of the evidence is one of facts or at best one of mixed law and facts, where however the ground of appeal does not complain about the evaluation but only about the inference to be drawn from the established or admitted facts, it is one of law. Similarly, where the ground of appeal alleges that there is no evidence upon which the lower Court could reach its decision, it is a ground of law. See:- ANAMBRA STATE HOUSING DEVELOPMENT CORPORATION VS J.C.O EMEKWUE (1996) 1 NWLR PART 426 PAGE 505 AT 527 – 528.
– IFEDIORAH VS UME (1988) 2 NWLR PART 74 PAGE 5.
– U.B.A VS STAHLBAU GMBH (1989) 3 NWLR PART 110 PAGE 374.”
Section 241 (1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) states the situations when an Appellant can appeal as of right as follows:-
“(1) An appeal shall lie from decision of the Federal High Court to the Court of Appeal as of right in the following cases:-
(a) Final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance.
(b) Where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings.
(c) Decisions in any civil or criminal proceedings on questions as to the interpretation or application of this Constitution.
(d) Decisions in any civil or criminal proceedings on questions as to whether any of the Provisions of Chapter IV of this Constitution has been, is being or is likely to be contravened in relation to any person.
(e) Decisions in any criminal proceedings in which the Federal High Court or a High Court has imposed a sentence of death.
(f) Decisions made or given by the Federal High Court or a High Court –
(i) Where the liberty of a person or the custody of an infant is concerned,
(ii) Where an injunction or the appointment of a receiver is granted or refused.
(iii) in the case of decision determining the case of a Creditor or the liability of a contributory or other officer under any enactment relating to companies in respect of misfeasance or otherwise.
(iv) in the case of a decree nisi in a matrimonial cause or a decision in an admiralty action determining liability and
(v) in such other case as may be prescribed by any law in force in Nigeria.
Section 242 (1) of the 1999 Constitution of the Federal Republic of Nigeria (as Amended) states as follow:-
“(1) Subject to the provisions of Section 241 of this Constitution, an Appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal.”
In this case under consideration the Grounds of Appeal with their particulars are as follows:-
GROUND 1
The Learned Trial Judge lacked Jurisdiction to grant the Order of interlocutory injunction restraining the Appellant from transactions relating to his property by virtue of not being a matrimonial cause within the meaning and definitions of the Matrimonial Causes Act.
GROUND 2
The Learned Trial Judge erred in law when he awarded as maintenance $25,0000 USD (Twenty Five Thousand Dollars) to Miss Ihinosen Omonzane for tuition fee in the United States of America, & 42,000 (Forty – Two Thousand Canadian Dollars) to Emanehi Mediene Omonzane yearly tuition fee in Canada at ₦8,000,000 at ₦4,000,000 (Eight Million Naira at Four Million Naira per annum for each of the last two children of the marriage and ₦6,000,000 (Six Million Naira) per annum for the Respondent.”
Particulars of Error
(a) There was no evidence of the Appellants’ income before the Lower Court to determine the Appellants’ financial capacity.
(b) The Counter Affidavit of the Appellant was completely ignored by the Court.
(c) The award was wrongful exercise of discretion.”
A careful perusal of Ground 1 set out above would reveal that it is a complaint of the misunderstanding of the law by the Court below that it has no power under the Matrimonial Causes Act to grant the Order of interlocutory injunction against the Appellant when such is not cognizable under the statute which in essence touches on the question of the jurisdiction of the Court. It is my view that this issue on jurisdiction is a question of law. I agree with the submission of Counsel for the Appellant in this respect.
See –AMUDA VS. ADELODUN (SUPRA).
– METAL CONSTRUCTION (W. A.) LTD. VS. D.A. MIGLIORE & OTHERS (SUPRA).
As for Ground 2 where the Ground of Appeal alleges that there is no evidence upon which the Lower Court could reach its decision, it is a Ground of law. See – ANAMBRA STATE HOUSING DEVELOPMENT CORPORATION VS. J. C. O. EMEKWE (SUPRA)
– OGBECHIE VS. ONOCHIE (SUPRA).
The complaint in Ground 2 of the Notice of Appeal is about the failure of the Learned Trial Judge to take into consideration Section 70 (2) of the Matrimonial Causes Act and Order XIV Part 1 Rule 4 (4) of the Matrimonial Causes Rules by ensuring compliance with the Rules of Court and the statute which are the condition precedent to the Orders granted by the Trial Court. This also in my view is a Ground of law.
See the following cases:-
– OLU-IBUKUN VS OLU-IBUKUN (1974) NSCC PAGE 91.
– WUAM VS AKO (1999) 5 NWLR PART 601 PAGE 150.
In view of the foregoing, my inevitable conclusion is that the Preliminary Objection lacks merit and it is hereby discountenanced.
I shall now proceed to consider the issues raised in this Appeal.
At the hearing of this Appeal on 10th day of November, 2020, despite the fact that Counsel for both parties were duly notified about the hearing of the Appeal, they did not attend the Court. But since the parties in the Appeal have filed their Briefs of Argument, the Appeal was treated as being duly argued pursuant to Order 19 Rule 9 (4) of the Court of Appeal Rules 2016.
The issues formulated for the determination of this Appeal were set out earlier in this Judgment, I have gone through the said issues and I am of the view that the issues formulated for the determination of the Appeal by counsel for the parties are similar but I will rely on the issues formulated for the determination of the Appeal on behalf of the Appellant because it would resolve the controversies between the parties.
ISSUES FOR THE DETERMINATION OF THE APPEAL
ISSUE NO 1.
Whether the Learned Trial Judge lacked jurisdiction to grant injunctive Orders in respect of the Appellants’ landed properties by the virtue of being outside the purview, meaning and definition of matters or issue recognized as matrimonial causes under the Matrimonial Causes Act.
ISSUE NO 2.
Whether the Learned Trial Judge erred in law and wrongfully exercised his discretion when he ignored the Counter Affidavit of the Appellant vis-à-vis the provisions of Part IV Section 70 Matrimonial Causes Act and Order XIV PART 1 RULE 4 (4) Matrimonial Causes Rules.
ISSUE NOS. 1 & 2 (Taken Together)
The Learned Counsel for the Appellant referred to Section 114 (1) Matrimonial Causes Act which defines the statutory meanings of matters legally recognized as Matrimonial Causes under Matrimonial Causes Act.
He referred to the Order made on 28th February, 2017 where the Appellant was restrained from disposing items listed in paragraphs 14 (a) (c) (d) (e) as well as the companies listed in paragraphs 14 (f) and vehicles listed in 14 I (h) and items listed as 14 (3) (4) in the Affidavit in support of the Application.
It was submitted that the Order of injunction granted against the Appellant restraining him from dealing with property is in the realm of land law and not matrimonial law.
He relied on the case of:-
– FALOBI VS. FALOBI (1976) 1 NMLR PAGE 169.
The Learned Counsel for the Appellant also relied upon – Section 70 (2) of the Matrimonial Causes Act and Order XIV Rule 4 (4) of the Matrimonial Causes Rules.
He referred to the Affidavit in support of the Application and submitted that the condition precedent in relation to the duties imposed on the Respondent as claimant under ORDER XIV PART 1 RULE 4 (4) OF THE MATRIMONIAL CAUSES RULES were not complied with.
He relied on the following cases:-IBEABUCHI VS. IBEABUCHI Unreported Decision Of Court Of Appeal In No:- FCA/F5/82 Delivered in September 1982.
– MENAKAYA VS. MENAKAYA (1996) 9 NWLR PART 472 PAGE 256.
He finally urged that this issue be resolved in favour of the Appellant.
In his response, the Learned Counsel for the Respondent submitted that the learned trial Judge has jurisdiction to grant interlocutory injunction against the Appellant with respect to his properties which have been made subject matter of the dispute in a matrimonial proceedings once there exists threats or likelihood that the Appellant would take steps to frustrate the Matrimonial Proceedings.
He relied on Section 105 (1) of the Matrimonial Causes Act and submitted that the learned trial Judge has jurisdiction to entertain and rightly granted orders of interlocutory injunction to restrain the Appellant from taking further steps which are capable of defeating an existing or anticipated order in the Matrimonial Causes Proceeding for costs damages and maintenance.
The learned Counsel for the Respondent submitted that a man has a common law duty to maintain his wife and children and may be compelled by the law to find them necessities of life.
It was submitted further that the Respondent placed sufficient materials before the lower Court which shows the earning capacity of the Appellant.
Learned Counsel for the Respondent finally submitted that the learned trial Judge was right when he heard and granted ancillary reliefs for maintenance, welfare and advancement and education of the children pending the determination of the substantive petition.
The learned Counsel for the Appellant in his reply brief of argument contended that there were no facts in the Respondent’s application for injunctive orders which shows that the properties were jointly owned to justify the injunctive orders.
He urged that the appeal be allowed and set aside the orders of Court below.
RESOLUTION
The Ruling of the trial Court which resulted in this appeal was set out earlier in this Judgment.
Section 70 (1) of the Matrimonial Causes Act states that:-
“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 proceeding 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.”
Section 70 (2) Supra provides thus:
“subject to this Section and to rules of Court, the Court may in proceedings for an order for the maintenance of a party to a marriage or of children of the marriage, pending the disposal of proceedings make such orders as it thinks proper, having regard to the means, earnings capacity and conduct of the parties to the marriage and all other relevant circumstances.”
Also Order XIV Rule 4 (4) of the Matrimonial Causes Rules provides as follows:-
“4(4) – In proceedings for ancillary relief, being proceedings with respect to the maintenance of a party to the proceedings, or a child of the marriage, the claimant shall state in his application for ancillary relief particulars of-
(a) The property, income and financial commitments of the Claimant.
(b) The capability of the Claimant to earn income.
(c) The property, income and financial commitments of the spouse of the Claimant so far as they are known to the Claimant.
(d) The capability of the spouse of the Claimant to earn income, so far as that capability is known to the Claimant.
(e) Any financial arrangement in operation between the Claimant and the spouse of the Claimant;
(f) Any order of a Court which one of the parties to the marriage is liable to make payment to the other, and
(g) The ownership of the home in which the Claimant is residing and the terms and conditions upon which the Claimant is occupying or otherwise residing in that home.”
The law and the Rules of Court set out above are what should guide a Court in granting an order for maintenance under the Matrimonial Causes Act.
In order to determine whether the applicable law for maintenance was followed when the Respondent’s application was granted, it would be necessary at this stage to set out the affidavit in support of the application, the further affidavit and Counter Affidavit at this juncture.
Affidavit in support of the application, pertinent paragraphs are 1, 4, 12, & 14 and they are set out as follows:-
“AFFIDAVIT IN SUPPORT OF MOTION ON NOTICE
I, DEBORAH NKEM OMONZANE, Female, Nigerian, Christian and Businesswoman of House 33, ‘A’ Close Road 52, Gowon Estate, Alimosho, Lagos State, Nigeria, do hereby make Oath and state as follows:
“1. That I am the Petitioner/Applicant in this Proceeding and as such I am familiar with the facts deposed hereto.
4. That there are four (4) children of the marriage, namely: (1.) Miss Ihinosen Charlene Omonzane who was born on the 12th day of September, 1997; (2.) Miss Emanehi Medlene Omonzane who was born on the 9th day of May, 2000; (3.) Master Leslie Aimiunumefo Omonzane who was born on the 2nd of June, 2003; and (4.) Master Hansley Eromosele Omonzane who was born on the 29th of November, 2004.
12. That my particulars and that of the Children as it relates to welfare and maintenance are stated as follows:
Particulars of maintenance Orders for the Children;
a. Miss Ihinosen Charlene Omonzane is currently studying in the United States of America and her tuition and accommodation fees is Twenty Five Thousand United States Dollars (USD 25,000) per annum.
b. Miss Emanehi Medlene Omonzane is currently a foundation course student in Canada. Her yearly tuition and accommodation and feeding fees are Forty Two Thousand Canadian Dollars per annum.
c. Master Leslie Aimiunuefoh Omonzane is currently a student at Olashore International School, Ilesha, Osun State Nigeria. His yearly tuition and accommodation fees is Four Million Naira (₦4,000,000.00).
d. Master Hansley Eromosele is currently a student at Olashore International School, Ilesha, Osun State Nigeria. His yearly tuition and accommodation fees is Four Million Naira (₦4,000,000.00).
e. Maintenance allowances for food, clothing, medical expenses, extra coaching and teaching of the children, extra-curricular activities expenses and other entertainment expenses for Master Leslie Aimiunuefoh Omonzane and Master Hansley Eromosele the Children in the sum of Four Million Naira (₦4,000,000.00). per annum.
f. That I seek the foregoing maintenance awards, as temporary arrangement orders for the children pending the determination of this proceeding or any Appeal that may emanate therefrom.
Particulars of Maintenance Orders for the Petitioner.
g. Particulars of Maintenance Orders for the Petitioner pending the determination of this proceeding or any Appeal that may result there from:
1. House rent per annum (this is subject to rent review by the Landlord); Five Million Naira (₦5,000,000.00).
2. Furniture: Five Million (₦5,000,000.00).
3. Car: Eight Million (₦8,000,000).
4. The cost of hiring a driver: Six Hundred Thousand Naira (₦6,000,000.00) per annum.
5. Feeding, medicals and upkeep: Two Million Naira (₦2,000,000.00) per annum.
14. That the assets jointly held by me and the 1st Respondent are as follows:
1. The family’s assets are:
Land:
a) Temple Energy Dev. Co. Ltd. (TEDCO Gas): A major gas plant with office blocks sitting on two & half acres of land in Igando, Lagos valued at Nine Hundred and Fifty Million Naira (₦950,000,000.00) as of July 2015.
b) The Parties’ family house sitting on about 1400sqm of land with a bungalow, swimming pool building etc. at No. 2, Amori Odumusu Close, Adeniyi Jones, Ikeja, Lagos valued at about one Hundred and Eighty Million Naira (₦180,000,000.00). This property was acquired during the marriage.
c) A piece of land in Omole Estate Phase One, Agidingbi – Ikeja Lagos of about 500sqm valued at about Eighty Million Naira (₦80,000,000.00).
d) A land with a small bungalow building on about 400sqm of Land for whopping mall at Ipodo Market, Ikeja valued at about Forty Million Naira (₦40,000,000.00). This land was acquired during the marriage.
e) A parcel of land of about 1300sqm in Oniru Estate, Lekki Lagos valued and sold for Sixty Million Naira (₦60,000,000.00) in 2010 and the money used to acquire several hectares of Land in Benin City – Edo State.
f) Family’s companies and Moneys in banks:
1. Temple Energy Dev. Co. Ltd.
2. Temple Logistics Co. Ltd.
3. Print Concepts Ltd.
4. Briarwood Investment Ltd.
g) Corporate Accounts with:
Diamond Bank, First Bank, Stanbic Bank, FCMB etc: About One Hundred and Sixty Million Naira (₦160,000,000.00).
h) Cars:
1. Toyota Land-cruiser worth about Six Million Naira (₦6,000,000.00).
2. Blue Honda 2009 worth about One Million Two Hundred Thousand Naira (1,200,000.000).
3. Black Honda 2009 worth about Seven Hundred Thousand (700,000.00).
4. Two Man-Diesel Trucks for loading Gas valued at Twelve Million Naira (12,000,000.00) each.
5. One Gas Bobtail mini truck valued at Twelve Million Naira (12,000,000.000).
6. Two delivery trucks valued at Five Million Naira (5,000,000.00) EACH.
7. Two delivery vans valued at One Million Naira (1,000,000.00) each.
2. The 1st Respondents’ Individual Account with:
Eco Bank, Diamond Bank, Stanbic Bank, FCMB, First Bank etc. About Twenty Million Naira (₦20,000,000.00).
3. The 1st Respondent’s shareholding shares in Zenith Bank and other financial institutions worth over Twenty Million Naira (₦20,000,000.00).
4. The Petitioner’s personal assets are jewelries worth about Twenty Five Million Naira (₦25,000,000.00).” (See pages 123-128 of the record of appeal).
Further Affidavit
Pertinent paragraphs are 4, 5, 6, 7, 8, 9, 10, 14, 15, 18, 19, 20, 21 & 30 and they are set out as follows:-
“I DEBORAH NKEM OMONZANE, Female, Christian, Nigerian and Businesswoman of House 33, ‘A’ Close, Road 52, Gowon Estate, Alimosho, Lagos State, Nigeria, do hereby make oath and state as follows:-
(4) That Miss Ihinosen Charlene Omonzane, the first child of the marriage is presently attending Bunker Hill Community College (BHCC) in the United States of American. Attached herewith and marked as Exhibit A1 is a copy of an email from the College dated 14th August, 2016 regarding her admission.
(5) That the school fees of Miss Ihinosen Charlene Omonzane in the above college is the sum of $11,397.4. That attached herewith and marked Exhibit A2 (i)-(ix) for the various payments as follows:
a. BHCC Receipt for payment of $2,500 dated 2nd September, 2016.
b. BHCC Receipt for payment of $650 dated 2nd September, 2016.
c. BHCC Receipt for payment of $500 dated 2nd September, 2016.
d. BHCC Receipt for payment of $100 dated 6th September, 2016.
e. BHCC Receipt for payment of $2,260 dated 6th September, 2016.
f. BHCC Receipt for payment $2,100 dated 6th September, 2016.
g. BHCC Receipt for payment of $443.70 dated 1st November, 2016.
h. BHCC Receipt for payment of $1,600 (undated).
i. BHCC Receipt for payment of $200 (undated).
(6) That Miss Ihinosen Charlene Omonzane pays the sum of $650 per month for her accommodation. She has been in the USA since June, 2016 and her total accommodation bill till date is $650 x 8months $5200. Attached herewith and marked Exhibit A3 is her Room Rental Agreement.
(7) That here monthly maintenance and feeding allowance since June, 2016 is $350, amounting to a total of $3,150 from June, 2016 to February, 2017.
(8) That that the sum of $2000 has been spent on her books and summer class between June 2016 – February, 2017.
(9) That the summary of the fees for Miss Ihinosen Charlene Omonzane are as follows:
a. School Fees …. $11,397.4
b. Accommodation $650 per month, accrued sum … $5,200
c. Maintenance and Feeding $350 per month, accrued sum … $3150
d. Books and Summer Class, accrued sum … $2000
Total … $21,747.4
(10) That the total expenses for Miss Ihinosen Charlene Omonzane in a one year period, including the school bill as stated above and other expenses is about $24,000 (Twenty Four Thousand United States Dollars).
(14) That in the addition to foregoing, Miss Emanehi Medlene Omonzane’s monthly allowance for her upkeep is $250 (Two Hundred and Fifty Canadian Dollars).
(15) That the sum of $1000 (One Thousand Canadian Dollars have been expended for her books and clothing.
(18) That Leslie Aimiunuefoh Omonzane and Hansley Eromosele Omonzane, the last two children of the marriage, are presently students of Olashore International School, Osun State. Attached herewith and marked as Exhibit C1 is a letter from the school demanding for payment of all unpaid fees for Miss Emanehi Medlene Omonzane Leslie Aimiunuefoh Omonzane and Hansley Eromosele Omonzane, latest by the 28th of February, 2017.
(19) That Miss Emanehi Medlene Omonzane finished from Olashore International School, Osun State in 2016 with outstanding fees yet to be paid. The 1st Respondent has refused to pay for same in spite of all entreaties to him.
(20) That the total outstanding fees due for Leslie Aimiunuefoh Omonzane and Hansley Eromosele Omonzane to Olashore International School is N9,423,949.00 (Nine Million, Four Hundred and Twenty-Three Thousand, Nine Hundred and Forty Nine Naira). Attached herewith and marked as Exhibit C2 is the school bill for the said outstanding sum.
(21) That in addition to the above, Leslie Aimiunuefoh Omonzane and Hansley Eromosele Omonzane require an additional sum of N2,000,000. (Two Million Naira) for their upkeep and welfare.
(30) That I have also taken two loans from a micro finance bank to enable me pay some of the bills of my children, particularly my two daughters studying in the USA and Canada. Attached herewith and marked D4 and D5 are two loans agreements with Addosser Microfinance bank Ltd dated 19/01/2016 and 22/06/2016 respectively.” (See pages 198-202 of the record of appeal).
Counter Affidavit
Pertinent paragraphs are:- 2, 3, 4 & 5 and they are set out as follows:-
“I Ademola Adelehin, Male, Adult, Christian, Nigerian citizen Solicitor of 12, Owodunni Street, Off Amore Street, Ikeja Lagos do hereby make this Oath and state as follows:
(2) The 1st Respondent informed me at our office on the 18th December, 2016 at about 2.30pm in the afternoon by telephone and I verily believed him thus:
(a) The 1st Respondent has seen the Motion on Notice dated 27th of September, 2016 for an order of maintenance of the petitioner and the supposed children of the marriage between the 1st Respondent and the Petitioner.
(b) The 1st Respondent reiterates his averment in the answer to the petition dated 13th May, 2016 at paragraph 5.1 in the suit that he is not adverse to the maintenance of the children in so far as they are at the order of the Honorable Court tested and proven to be his biological offspring.
(c) However if at the determination of the paternity test it was determined that the children are indeed the offspring of the 1st Respondent, then the 1st Respondent reiterates his position as stated in the answer to the petition at paragraphs 5.2 – 5.5 for the maintenance of the children.
(d) The 1st Respondent states that with the economic situation of the country at present, and the inability to source for the needed foreign exchange the 1st Respondent would only be able to maintain the children of the marriage in the proposed manner and not at the unsupportable and ruinous estimation of the Petitioner.
(e) For the avoidance of any doubt, the 1st Respondent after a paternity test would be willing to continue with the maintenance of the children of the marriage, their education, health and feeding, clothing and other upkeep expenses thus:
i. Miss. Ihinosen Charlene Omonzane will continue her education at Covenant University, Ota Ogun State.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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ii. Miss Emanehi Omonzane will continue her education at a reputable Nigerian University of her choice.
iii. Master Leslie Aimiunumefor Omonzane will continue his secondary school education at Olashore International School, Ilesha Osun State and thereafter proceed to a reputable Nigerian University of his own choice.
iv. Master Hansley Eromosele Omonzane will continue with his secondary school education at Olashore International School, Ilesha Osun State and thereafter proceed to a reputable Nigeria University of his choice.
(3) That 1st Respondent states categorically that the Petitioner is a woman of means as he has paid for and opened a Spa and Beauty Saloon for her worth almost N9M at a choice area of Lekki and she is a Managing Director of Duravilles Global Resources Limited where she has a controlling interest, a General Manager of Wetane Infrastructure Limited and does not require any maintenance moreso as she has been cohabiting with one Mr. Evance Ochuko Ivwurie to the knowledge of the 1st Respondent since she unceremoniously packed out of the matrimonial home and till date with the supposed children of the marriage.
(4) In particular reference to paragraph 14 of the affidavit in support of the Motion the 1st Respondent state that all the properties referred to were properties he solely acquired in his name and without any contribution from the Petitioner and shall put the Petitioner to the strict proof of her claims at the trial of the suit.
(5) More importantly, the Petitioner is aware that most of the properties were sold off during the marriage in order to keep the company, Temple Energy afloat from the debts incurred by the Petitioner during her 12 years of mismanagement at the helm of affair.” (See pages 191 to 192 of the record of appeal).
A careful reading of the affidavit in support of the application, the further affidavit and the Counter Affidavit set out above would reveal that the Respondent did not fulfill the duties imposed on her under Order XIV Part 1 Rule 4 (4) of the Matrimonial Causes Rules.
In applications of this nature, I am of the view that the factors to be considered before a Court can make maintenance award should include – parties income;
– Earning capacity and implication,
– Properties
– Financial resources
– Financial needs and
– Responsibilities as laid out in Order XIV Part 1 Rule 4 (4) of the Matrimonial Causes Rules.
The factors listed above cannot be presumed or taken for granted by the Court. See OLU-IBUKUN VS OLU-IBUKUN (1974) 9 N.S.C.C. PAGE 91.
– IBEABUCHI VS IBEABUCHI Unreported Decision of the Court of Appeal in Appeal NO-FCA/ES/82 delivered in September, 1982.
In the affidavit in support of the application and the further affidavit, the Respondent failed to disclose her income, property, financial commitment or capacity to earn income satisfactorily.
The trial Court also did not consider the Counter Affidavit before heaping the maintenance responsibility upon the Appellant. The intendment of the drafters of the laws is to enable parties in this type of situation live within their means. They are not expected to live a fake life.
A perusal of Section 70 (2) of the Matrimonial Causes Act would reveal that the powers of the Court in maintenance pending the disposal of proceedings were curtailed by the Provision “Having regard to the means, earning capacity and conduct of the parties to the marriage and all other relevant circumstances”.
As I stated earlier the facts stated in the Counter affidavit filed by the Appellant were not taken into consideration by the trial Court.
See the following cases:-
– NAKANDA VS NAKANDA UNREPORTED DECISION of the Court of Appeal in Appeal No: CA/L/99/81 delivered on 17th day of June, 1988.
– MENAKAYA VS MENAKAYA (Supra)
Another important factor which must not be overlooked is that there is no evidence in the application of the Respondent to prove that the properties belonging to the Appellant were joint properties therefore it is inappropriate to grant injunctive orders against the Appellant in respect of such properties.
In ADIGWE VS FRN (2015) 18 NWLR PART 1490 PAGE 105. It was held among others as follows:-
“Courts of Law do not embark on conjecture or guess work as same can hardly produce a just and equitable decision. Where an applicant prays the Court to exercise its discretion in its favour judicially and judiciously, it is his duty to place before the Court sufficient materials upon which the Court will rely in granting his application. This Court has held in several authorities that the exercise of discretion is not based on the mere figment of the person doing so but upon the facts or circumstances necessary for the proper exercise of that discretion. In other words, it is not an indulgence of a judicial whim, but the exercise of judicial Judgment based on fact guided by the law or the equitable decision. See:
– WILLIAMS VS HOPE RISING VOLUNTARY FUNDS SOCIETY (1982) ANLR PAGE 1
– OKERE VS NLEM (1992) 4 NWLR PART 234 PAGE 132.
– UBA VS G.M.B.H & Co (1989) 3 NWLR PART 110 PAGE 174.
– C.B.N. VS OKOJIE (2002) 3 S.C. PAGE 99…”
Consequent upon the foregoing, the two issues for determination in this appeal are resolved in favour of the Appellant and against the Respondent.
In the result, with the resolution of the two issues in the appeal in favour of the Appellant and against the Respondent, it is my view that there is merit in the appeal and it is hereby allowed.
The Ruling of the trial Court in suit No – HCT/149/2016: MRS DEBORAH N. OMONZANE VS CHARLES OMONZANE delivered on the 28th day of February, 2017 is hereby set aside and in its place the application is hereby dismissed.
The Petition before the trial Court is hereby ordered to be heard expeditiously before another Judge in Ogun State.
There shall be no order as to costs. Each of the parties are to bear their own costs.
Appeal allowed.
HARUNA SIMON TSAMMANI, J.C.A.: I had the privilege of reading in advance the judgment delivered by my learned brother, Jimi Olukayode Bada, JCA.
My learned brother has exhaustively considered the issues that arose for determination in this appeal. I adopt same as mine and also conclude that this appeal has merit. It is hereby allowed. I also abide by the consequential orders made by my learned brother including the order on costs.
FOLASADE AYODEJI OJO, J.C.A.: I read before now the lead judgment prepared by my learned brother JIMI OLUKAYODE BADA, JCA.
It is settled law that the discretion of a Court must be exercised judicially and judiciously. Such discretion must be exercised on materials placed before the Court and not in vacuo. A party who seeks the exercise of the discretion of Court in his favour has an onerous duty to place sufficient materials before it to enable it exercise its discretion judicially and judiciously. An application will therefore fail where no sufficient material is placed before the Court. See GENERAL & AVIATION SERVICES LIMITED VS. THAHAL (2004) 10 NWLR (PT. 880) 50; KHALIFA VS. ONOTU & ANOR (2016) LPELR- 41163 (CA); ADESANYA VS. LAWAL (2007) 7 NWLR (PT. 1032) 54. In Re: YAR’ADUA (2011) 17 NWLR (PT. 1277) 567 AT 585-586, PARAS, E-B, the Supreme Court, per I.T. Muhammad, JSC (now CJN) held as follows:
“This Court has stated the law and even the practice in a number of decisions, that for a person to approach this Court or any other Court for that matter, with an application which seeks the Court’s indulgence, such a person is duty bound to place sufficient materials before the Court in order to assist the Court exercise its discretion in his favour. Such discretionary exercise must be founded upon facts and circumstances presented to the Court from which a conclusion governed by law will have to be drawn. See: Duwin Pharm Chem. V. Beneks Pharm & Cosmetics Ltd. (2000) 15 NWLR (Pt. 689) 66. It is also said that judicial exercise of a discretion is not arbitrary or fanciful because it is done with sufficient, correct and convincing reasons. See: Ekwunife v. Wayne W.A, Ltd. 1989 5 NWLR (Pt.122) 422 at page 448; Shell Petroleum Dev. Co. v. Lawson – Jack (1998) 4 NWLR (Pt. 545) 249 at page 280; Egwu v. Madonkwu (1997) 4 NWLR (Pt. 501) 574 at 588. In Unilag v. Aigoro (1985) 1 NSCC, (1985) 1 NWLR (Pt. 1) 143, Bello, J.S.C. (as he then was but later CJN, of blessed memory), relying on the case of Jones v. Curling 13 Q.B. p. 262, stated that the guiding principle in exercise of discretion is that, it being judicially must at all times be exercised not only judicially but also judiciously on sufficient materials. See further: Saffienddine v. C.O.P. (1971) 1 All NLR 8. I fail to find such sufficient materials in this application. If I were to grant such indulgence, it will then be an indulgence not rooted in any legal principle known to law and practice. By mere looking at the affidavit evidence, I seem to be convinced by the evidence placed before the Court through counter affidavits by the respondents in whose favour the pendulum of the scale of justice must tilt.”
In the instant appeal, Order XIV Rule 4(4) of the Matrimonial Causes Rules provides for materials which should be supplied by an Applicant who seeks ancillary reliefs with respect to the maintenance of a party to the proceedings, or a child of the marriage. The Respondent filed an application seeking reliefs in respect of her maintenance and that of the children of the marriage but failed to place sufficient materials before the Court upon which it could exercise its discretion. The Respondent as Applicant failed to disclose her income, property, financial commitment or capacity to earn satisfactorily to enable the Court exercise its discretion properly under Order XIV Rule 4(4) of the Matrimonial Causes Rules. She was therefore not entitled to the exercise of the discretion of the Court in her favour. The grant of her application by the lower Court was not based on any legal principle known to law and practice. It should have been refused by the Court.
It is for the above and the fuller reasons in the lead Judgment that I also allow the appeal and set aside the Ruling of the lower Court, I abide by the consequential orders including the order as to costs.
Appearances:
NO LEGAL REPRESENTATION For Appellant(s)
NO LEGAL REPRESENTATION For Respondent(s)
