MRS. MARY ENI V. EMMANUEL IMOKE ENI
(2010)LCN/4218(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 13th day of July, 2010
CA/C/171/2009
RATIO
PLEADINGS: WHETHER THE COURT CAN ONLY DEAL WITH THE ISSUES JOINED BY THE PARTIES
The jurisdiction of the Court of Appeal is to deal with issues joined by the parties and forming the basis of the judgment of the lower court. Refer to Overseas construction Ltd vs. Creek Ent. Ltd (1985) 3 NWLR (pt 13) 407; 414 where the Supreme Court stated as follows:- “….It is an elementary principle of the rules of pleading in our adversary system that each party is free to formulate his own case and race formulated… Bound by his pleadings and cannot be allowed… to urge a case different from that formulated in his pleadings. The courts themselves, here the trial court and the Court of Appeal are bound to decide only the case as formulated on the pleadings of the parties. It will be contrary to proper function of the court to enter upon any enquiry outside the pleadings of adjudicate on any matter not put is issue by the pleadings….” PER JAFARU MIKA’ILU, J.C.A.
MAINTENANCE OF WIFE BY HER HUSBAND: WHETHER THE DUTY HUSBAND TO MAINTAIN HIS WIFE UNDER CUSTOMARY LAW IS ONLY LIMITED TO THE PERIOD DURING WHICH THEY CO-HABIT
In my humble view the learned trial Judge was right not to have considered the issue of maintenance raised by the appellant. Maintenance of wife by her husband is an incident of an existing and subsisting marriage. Neither the Custom of Adun in Obubra Local Government Area nor that of Itigidi in Abi Local Government Area both in Cross River State imposes a duty on an ex-husband to provide maintenance for his ex-wife. A learned author summarized the position as follows: “A husband’s duty to maintain his wife is limited under customary law to the period during which they co-habit. Should they live apart following a dispute, then as a general rule, this duty is suspended for the duration of the separation. It is immaterial whose fault was responsible for the separation; the innocent party has no right to be maintained in these circumstances.” See Modern Family Law in Southern Nigeria by SNC Obi, published in 1966. At the time of the proceedings in the High Court the Customary Law Marriage between the appellant and the respondent had been dissolved by a Court of competent jurisdiction. Appellant was no longer a wife of respondent and so she cannot claim maintenance under the customary law as a wife of the respondent. The Adun Native Law and Custom invoked by the appellant do not apply in retrospect. PER NWALI SYLVESTER NGWUTA
Before Their Lordships
KUMAI B. AKAAHSJustice of The Court of Appeal of Nigeria
JAFARU MIKA’ILUJustice of The Court of Appeal of Nigeria
N. S. NGWUTAJustice of The Court of Appeal of Nigeria
Between
MRS. MARY ENIAppellant(s)
AND
EMMANUEL IMOKE ENI (Respondent(s)
JAFARU MIKA’ILU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Cross River State of Nigeria delivered on 31st day of March, 2008. The facts of the case are that the appellant got married to the Respondent in 1968. The said marriage has been blessed with five children. It is alleged that the appellant agreed with the Respondent to jointly acquire No. 3 Eyo Eta Street, Calabar, Cross River State of Nigeria as family property in the name of the Respondent as the head of the family in line with their faith – Christianity. That on this understanding, No.3 Eyo Eta Street, Calabar, was acquired in 1979 and renovated/developed into six (6) flats. The Appellant and the Respondent with their 5 (five) children packed into one of the flats called and known as No. 3A Eyo Eta Street, Calabar, in 1986, while the remaining 5 (five) flats were let out to tenants.
The family lived happily until sometime in 1999, when the Respondent left the family house for No 8 Diamond Hill, Calabar, to cohabit with another woman who had other children for him.
The Respondent in his bid to throw the Appellant and their five children out of the family house, No.3 Eyo Eta Street, Calabar, brought several purchasers to purchase the family house.
The Respondent obtained an order dissolving his marriage to the appellant from the Adun district Court, Omodua, Obubra, Cross River state sometime in the year 2000.
The Appellant in 2001 filed this suit praying for the following:-
(a) A declaration that she is a joint owner of No. 3 Eyo Eta Street, with the Respondent.
(b) An order for the partitioning of No 3 Eyo Eta street, Calabar.
(c) An order restraining the Respondent from evicting the Appellant from No.3 Eyo Eta, Calabar.
On the other hand the Respondent counterclaimed as follows:
(i) That he is the sole owner of No. 3 Eyo Eta Street, Calabar.
(ii) That the Appellant deliver possession to him, and
(iii) Also to render comprehensive account of monies collected by her to him.
At the conclusion of the trial, the Appellant’s claim was dismissed while the 1st and 2nd reliefs in the Respondent’s counter-claim were granted. Aggrieved by the said decision of the trial court the appellant filed this appeal.
Before this court briefs have been filed and exchanged in the appellant’s brief of argument the following three issues have been formulated for determination:-
(1) WHETHER the trial Judge erred when he held that the appellant’s claim of joint ownership of No 3 Eyo Eta Street, Calabar, with the Respondent had failed entirely.
(2) WHETHER the Respondent had established ownership of No 3 Eyo Eta Street, Calabar.
(3) WHETHER the trial Judge erred when he failed to consider the evidence of Adun Native Law and Custom.
On the other hand the sole issue formulated for determination is whether having regards to the pleadings and evidence of the parties the learned trial Judge was justified in dismissing Appellants action in its entirety and granting partially Respondent’s counter-claim.
The Respondent, in the preliminary objection has correctly submitted that the substance of Appellant’s ground 3 and the related issue 3 in her brief is a challenge of the decision of the Adun District Court dissolving the marriage between the parties. That court arising from the evidence of Respondent herein that he had returned Appellant to the family, signifying termination of the marriage, found that the Respondent had returned Appellant to her family to signify the end of the marriage. The appellant complains that she was not returned to her family, and so the dissolution of her marriage is not valid or conclusive. There is a valid and subsisting judgment of a court of competent jurisdiction, the Adun District Court, dissolving the customary marriage between the parties, the said Respondent duly returned Appellant to her parents, the appellant can only challenge the decision or finding by proceeding to the Magistrate’s court on appeal. If dissatisfied with the decision of the Magistrate’s court, she is entitled to proceed on appeal and not by a substantive suit via a writ of summons, to the High Court and hence to this court. No direct appeal lies from decision of the Adun District court to this court as the appellant purports to do.
It is also clear that the arguments canvassed by the appellant under the said issue 3 did not arise from the pleadings of the parties and a fortiori, did not form part of the judgment of the trial court and as such incompetent. The central issue before the trial court was not whether under Adun Native Law and custom, Respondent an ex-husband of appellant must provide her with accommodation, but whether the appellant was a joint owner with the Respondent of No 3/3A Eyo Eta Street, Calabar. The issue raised in appellant’s pleadings was that under Adun Native law and custom it is the husband’s responsibility to provide accommodation for the wife. In her brief, the issue raised and canvassed is that for a marriage to be dissolved under Adun native law and custom, the husband must return the wife to the family.
The validity and conclusiveness of the dissolution of appellant’s marriage with Respondent was not an issue before the trial court. The learned trial Judge did not make any findings thereon. The jurisdiction of the Court of Appeal is to deal with issues joined by the parties and forming the basis of the judgment of the lower court. Refer to Overseas construction Ltd vs. Creek Ent. Ltd (1985) 3 NWLR (pt 13) 407; 414 where the Supreme Court stated as follows:-
“….It is an elementary principle of the rules of pleading in our adversary system that each party is free to formulate his own case and race formulated… Bound by his pleadings and cannot be allowed… to urge a case different from that formulated in his pleadings. The courts themselves, here the trial court and the Court of Appeal are bound to decide only the case as formulated on the pleadings of the parties. It will be contrary to proper function of the court to enter upon any enquiry outside the pleadings of adjudicate on any matter not put is issue by the pleadings….” Thus all arguments on appellant’s issue 2 in her brief, relating to the admissibility of Exhibit 19 were incompetent. There is no ground of appeal upon which to predicate those arguments.
In conclusion the findings of this court can be summarized as follows:-
(a) With respect to the respondent’s preliminary objection. Ground 3 of the Notice of Appeal and issue 3 in Appellant’s brief distilled therefrom are incompetent in so far as they invoke the appellate powers of this court in respect of a decision of an Adun district court. The jurisdiction of the court of Appeal is to entertain appeals from the High Court, and not directly from courts inferior to the High Court, such as the Adun district court.
(b) As no issue was joined by the parties as to the validity and conclusiveness of the dissolution of the marriage between the parties the learned trial judge was justified in not making any findings in relation thereto and no appeal can a fortiori, arise from the non-finding.
(c) As there is no ground of appeal complaining about the admissibility of Exhibit 19, arguments in appellant’s brief of argument as to the admissibility of that document are incompetent.
(d) The learned trial judge having regard to the pleadings of the parties, their testimonies and the overwhelming documentary evidence was right in dismissing appellant’s action and pleadings. The courts themselves here the trial court and the Court of Appeal are bound to decide only the case as formulated on the pleadings of the parties. It will be contrary to the proper function of the court to enter upon any enquiry outside the pleadings or adjudicate on any matter not put in issue by the pleadings….”
Thus all arguments on Appellant’s issue 2 in her brief, relating to the admissibility of exhibit 19 are incompetent. There is no ground of appeal to predicate those arguments. It is clear that there is no ground of appeal questioning the weight attached to the specific evidence so that all arguments under issue 2 of the Appellant’s brief are incompetent.
To sum it all, having read the argument of the learned counsel for the appellant and the learned counsel for the respondent as well as the proceedings of the trial court I am of the following views:
(1) With respect to the preliminary objection I agree that Ground 3 of the Notice of Appeal issue 3 in appellant’s brief distilled therefrom are incompetent in so far as they invoke the appellant powers of this court in respect of a decision of an Adun District Court. The jurisdiction of the Court of Appeal is to entertain appeals from the High Court, and not directly from courts inferior to the High Court such as the Adun District Court.
(2) As no issue was joined by the parties as to the validity and conclusiveness of the dissolution of the marriage between the parties the learned trial Judge was justified in not making any findings in relation thereto and no appeal can a fortiori arise from the non-findings.
(3) As there is no ground of appeal complaining about the admissibility of Exhibit 19, arguments in Appellant’s brief as to the admissibility of that document are incompetent.
(4) The question of the weight to be attached to any evidence or inference to be drawn from proved facts is a question of law. The omnibus ground which is essentially one of pure facts can not be used to attack a question of law. To that extent all arguments in Appellant’s issue 2 are not supported by any ground of appeal and so incompetent.
(5) The learned trial judge having regard to the pleadings of the parties their testimonies and the overwhelming oral/ documentary evidence was right in dismissing appellant’s action and granting partially Respondent’s counter-claim.
In the final conclusion I am of the view that this appeal lacks merit. I consequently dismiss the appeal and affirm the decision of the trial court.
Parties to bear their costs.
KUMAI BAYANG AKAAHS, J.C.A. (DISSENTING JUDGMENT): Although the main issue in the appeal is concerned with whether the appellant was a joint owner with the Respondent of No. 3/3A Eyo Etta Street, Calabar, there is also the issue of maintenance of the Appellant and her five children which includes the provision of accommodation.
After the dissolution of the marriage between the husband who was the Petitioner and the wife who was the Respondent by the District Court of Adun on 18/9/2000, the Petitioner filed an action in the High Court of Cross River State in Suit No. HC/301/2000 against the Respondent seeking a DECLARATION for exclusive possession and AN ORDER evicting the Respondent from the property. She in turn together with the 5 children she had with the Petitioner instituted Suit No. HB/16/2001 which is the subject of this appeal. In the said suit the appellant was the 6th Plaintiff wherein the plaintiffs claimed as follows:
1. A DECLARATION that the 6th plaintiff and the defendant are joint owners of the property situate, lying and described as No. 3A Eyo Etta Street, Calabar, the name of the defendant alone appearing on the TITLE DOCUMENTS notwithstanding.
2. AN ORDER for the joint sale and sharing of the proceeds of sale of the property situate at No. 3A Eyo Etta Street, Calabar, between the 6th plaintiff and the defendant and 50% basis if the defendant insists on the sale.
ALTERNATIVELY
3. An Order for the partitioning of the property between the 6th Plaintiff and the Defendant on 50% basis.
4. AN ORDER OF PERPETUAL INJUNCTION restraining the defendant, his agents and privies from disturbing the peaceful enjoyment of the property situate at No. 3A Eyo Etta Street, Calabar.
In the course of the proceedings the defendant filed an application seeking to strike out the names of 1st – 5th Plaintiffs as unnecessary parties. The court granted the application and the names of 1st – 5th plaintiffs were struck out on 4/12/2003″ (see pages 150 of the records). After testifying in person and calling one other witness the plaintiff filed an amended Statement of Claim on 31/7/2006 but dated 18/6/2006 asking for maintenance for herself and the children. The amendment is contained in paragraphs 18A – 18D and 28 of the Amended Statement of Claim where it was averred as follows:
“18A. If the Defendant is allowed to sell the property at No.3 Eyo Etta Street without giving the Plaintiff her share and without making adequate arrangement for the accommodation of the children (sic) the plaintiff and her plaintiffs income cannot rent accommodation as well as maintain all of them at the same time.
18B. The plaintiff’s children who are also children of the defendant are yet to become independent and are entitled to maintenance by the defendant.
18C. The marriage between the plaintiff and the defendant was contracted under the native law and custom of Adun in Obubra Local Government Area of Cross River State. Under the said Adun native law and custom, it is the husband’s responsibility to provide accommodation for his wife.
18D. Both the Adun native law and custom and custom of Itigidi in Abi Local Government Area in Cross River State where the Defendant hails from, place responsibility on a father to provide for the children’s feeding and education until they are able to fend for themselves.
28. WHEREOF THE PLAINTIFF CLAIM (sic) AS FOLLOWS:
a) A DECLARATION that the plaintiff and defendant are joint owners of the property situate, lying and described as No. 3 Eyo Etta Street, Calabar, the name of the defendant alone appearing on the TITLE DOCUMENT notwithstanding.
b) AN ORDER for the partitioning of the said property between the Plaintiff and the defendant on the basis of 50 to 50.
OR IN THE ALTERNATIVE:
b) AN ORDER restraining the defendant from evicting the plaintiff from the property known as No. 3A Eyo Etta Street, Calabar”. (See pages 109 – 114 of the Records).
In the Amended Statement of Defence containing a counter claim dated 21/9/2006 and filed on 22/9/2006, the defendant denied the plaintiff’s claim and pleaded in paragraph 9B of the Amended Statement of Defence and paragraph 4 of the Counter-claim the following facts:
“9B. Defendant denies paragraphs 18B, 18C and 18D of the Amended Statement of Claim and in reply thereto states as follows:
(a) Plaintiff is not entitled to any share of the said property as the said property at No. 3A Eyo Etta Street, Calabar is the exclusive property of the defendant to the exclusion of the plaintiff.
b) The question of the “adequate arrangement for the accommodation and maintenance of the children…” And the allegation that…” Plaintiff’s income cannot rent accommodation as well as maintain all of them at the same time….” is misconceived and alien to the resolution of the question of the true owner of No. 3A Eyo Etta Street, Calabar.
c) There is no such custom of Adun in Obubra Local Government Area under which custom a husband is to provide for his wife. Defendant avers that in any event the plaintiff has since ceased to be his wife by valid judicial pronouncements. Plaintiff’s attempt to resist the said valid judicial pronouncements has been dismissed since 10/7/2002 in Suit No. MB/2A/2000.
d) There is no native law and custom of Itigidi in Abi Local Government Area of Cross River State in which the father must provide for “the children” no matter how old those children are defendant says it is not his responsibility to provide for children who had exceeded their minorities and attained majorities. Defendant further avers that the said custom if at all it exists is irrelevant to the resolution of the real issue in controversy in this suit.
e) Defendant shall contend as a matter of law that plaintiff’s alternative claim in paragraph 28(c) is misconceived and grossly incompetent.
f) Accordingly defendant shall apply that paragraphs 18B -18D and 28(c) of the Amended Statement of Claim be struck out as they disclose no cause of action or otherwise that they are embarrassing, or scandalous or vexatious or an abuse of the process of this court.
COUNTER CLAIM
4. By virtue of the several matters aforementioned defendant has suffered damages and claims against the plaintiff as follows:
(i) A declaration that the defendant is the sole owner to the exclusion of the plaintiff of all that property known as No. 3/3A Eyo Etta Street, Calabar.
(ii) An Order directing the plaintiff to deliver and give up possession to the defendant of the property at No. 3/3a Eyo Etta Street, Calabar.
(iii) An Order directing the plaintiff to render a comprehensive account of all monies collected by plaintiff as rents from tenants of No. 3/3A Eyo Etta Street, Calabar, since 1998 and a further order directing plaintiff to pay over to the defendant any such monies as the defendant may be lawfully entitled to.”
It is based on the Amended pleadings that the suit was heard and judgment delivered on 31/3/2008 and in the said judgment the learned trial judge dismissed the plaintiff’s claims. He proceeded to find that the defendant established sole ownership of No. 3/3A Eyo Etta Street, Calabar and entered judgment in his favour on the counter-claim but dismissed the claim on the plaintiff to render account of the rents collected as contained in paragraph 4(iii) of the counter-claim. It is against this judgment that the plaintiff now appellant appealed n the Notice of Appeal dated 4/6/2008 constraining 4 grounds from which learned counsel for the appellant distilled 3 issues for determination namely:
1. Whether the trial Judge erred when he held that the appellant’s claim of joint ownership of No. 3 Eyo Etta Street, Calabar, with the Respondent has failed completely.
2. Whether the Respondent has established ownership of No 3 Eyo Etta Street, Calabar.
3. Whether the trial Judge erred when he failed to consider the evidence of Adun Native Law and Custom.
The evidence on the counter-claim shows that the Defendant counter-claimant obtained a government loan of N23,100.00 which he used to purchase the abandoned property but there is no evidence as to where he got the resources to develop the property into 6 flats. I do not think the counter-claim was proved. In any event even if the Respondent established he was the legal owner of No. 3/3A Eyo Etta Street, Calabar, the Appellant could not be thrown out of the property simply because she could not prove that she contributed to the development of the property. She is entitled to maintenance which was not considered by the court.
I find that the appeal has merit and I allow it. The judgment of the trial court on 31/3/08 is hereby set aside and a retrial is ordered before another Judge of the Cross River State.
NWALI SYLVESTER NGWUTA: I read in draft the lead judgment of my Learned Brother Mika’ilu, JCA and I agree with the reasoning and conclusion therein.
Appellant’s evidence in proof of her claim of joint ownership of the property situate at No. 3 Eyo Eta Street Calabar, Cross River State is most unsatisfactory.
In paragraph 5 of the Amended Statement of Claim filed on 31/7/06 the Appellant as Plaintiff claim:
“The Plaintiff and Defendant as husband and wife jointly purchased an abandoned property at No 3 Eyo Eta Street, Calabar at the cost of N23,000.00 (twenty three thousand Naira) in the name of the Defendant in 1979.”
See page 109 – 110 of the records.
However in her testimony under cross-examination, she swore that:
“I contributed N6,000.000 (Six million Naira) towards the purchase of the land in 1979.”
See page 156 of the records.
The evidence is at variance with the pleading and the trial court rightly dismissed the claim for joint ownership of the property.
In my humble view the learned trial Judge was right not to have considered the issue of maintenance raised by the appellant. Maintenance of wife by her husband is an incident of an existing and subsisting marriage.
Neither the Custom of Adun in Obubra Local Government Area nor that of Itigidi in Abi Local Government Area both in Cross River State imposes a duty on an ex-husband to provide maintenance for his ex-wife. A learned author summarized the position as follows:
“A husband’s duty to maintain his wife is limited under customary law to the period during which they co-habit. Should they live apart following a dispute, then as a general rule, this duty is suspended for the duration of the separation. It is immaterial whose fault was responsible for the separation; the innocent party has no right to be maintained in these circumstances.”
See Modern Family Law in Southern Nigeria by SNC Obi, published in 1966.
At the time of the proceedings in the High Court the Customary Law Marriage between the appellant and the respondent had been dissolved by a Court of competent jurisdiction. Appellant was no longer a wife of respondent and so she cannot claim maintenance under the customary law as a wife of the respondent. The Adun Native Law and Custom invoked by the appellant do not apply in retrospect.
For the above and the fuller reasons in the lead judgment, I also dismiss the appeal and affirm the judgment of the court below. I also order that parties bear their costs.
Appearances
F.N. Nachamada EsqFor Appellant
AND
Dafe Diegbe EsqFor Respondent
