MRS. ROSE NDIBULUM ENWEZOR v. MR. CHRISTOPHER IFEANYI ENWEZOR & ANOR In The Court of Appeal of Nigeria
(2012)LCN/5780(CA)
On Wednesday, the 22nd day of February, 2012
CA/A/128/2005
RATIO
WORDS AND PHRASES: DEFINITION OF MARRIAGE
Section 69 of the Matrimonial Causes Act defines marriage as envisaged under the Matrimonial Causes Act. It states thus:
“In this part of this Act ‘marriage’ includes a purported marriage that is void, but does not include one entered into according to Muslim rites or other customary law”
The marriage envisaged under the Matrimonial Causes Act for the purposes of maintenance, custody and settlements does not include one conducted under customary law as rightly held by the lower court. PER HUSSEIN MUKHTAR, J.C.A.
FAMILY LAW: PRINCIPLES GUIDING AWARD OF COSTS IN DIVORCE PROCEEDINGS
Award of costs in divorce proceedings does not depend on who the successful party is. Rather the more important consideration is whose conduct ignites the litigation or the breakdown of the marriage.
An erring party should not be encouraged to benefit from his/her self-manufactured fault.
Moreover it is only when an appellant appeals solely on costs that he may require leave. Appeal on costs and other issues, not requiring leave, will not require the appealing party to seek for leave. In Anyaso Vs Anyaso (supra) Salami JCA (as he then was) observed thus:
“When a party appeals to the Court of Appeal against the decision of a High Court solely as to costs there is no right of appeal except with the leave of the High Court or the Court of Appeal by virtue of section 220 (2) (c) of the 1979 Constitution. However, the appeal on costs would be as of right if, in addition to appeal as to cost, there is appeal on other issue or issues. In the instant case ground 7 of the grounds of appeal is competent in view of the six other grounds of appeal raising other issues other than issue of costs.” PER HUSSEIN MUKHTAR, J.C.A.
EVIDENCE: BURDEN OF PROOF IN AN ASSERTION
He who asserts must prove. Further assertion or re-assertion does not prove initial assertions. It therefore behooved the appellant to prove that she jointly owned and built the said property with the respondent in order to succeed in claim in paragraph 13 (h) of the Amended Answer and Cross Petition. The burden on her becomes more glaring from the stout denial of the assertion by the respondent. In any case, the trite principle of law and common sense is that, what is alleged without proof can be denied without proof. PER EJEMBI EKO, J.C.A.
EQUITY: PRINCIPLES OF EQUITY
Equity acts in personam. And it does not aid a party with dirty hands. He, who comes to equity, it is said, must come with clean hands. PER EJEMBI EKO, J.C.A.
JUSTICES
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria
EJEMBI EKO Justice of The Court of Appeal of Nigeria
Between
MRS. ROSE NDIBULUM ENWEZOR Appellant(s)
AND
MR. CHRISTOPHER IFEANYI ENWEZOR
MRS. CHINEZE ENWEZOR (NEE EGBUNA) Respondent(s)
HUSSEIN MUKHTAR, J.C.A. (Delivering the Leading Judgment): This appeal emanates from the judgment of the High Court of the Federal Capital Territory Abuja delivered on the 1st March, 2005 by Bello, J wherein the marriage contracted between the petitioner/respondent and the respondent/appellant under the Marriage Act on 19th December, 1987 was dissolved on the ground of irretrievable breakdown thereof. The cross petition filed by the appellant seeking, inter alia, for dissolution of the marriage on ground of adultery and desertion was not properly countenanced and determined.
The appellant being dissatisfied with that decision filed a notice of appeal on the 4th April, 2005 that was predicated on seven grounds as reproduced hereunder without their particulars:
Ground One
The learned trial judge erred in law when he held that “the type of marriage that would have gotten into conflict with a subsisting marriage under the Matrimonial Causes Act should be a marriage subsequently contracted under the Act during the pendency of the earlier one equally contracted under the Act. It is obvious from the evidence before the court that the petitioner was said to have contracted a traditional marriage; this is not recognized by the Act and cannot be offensive against the Act.”
Ground Two
The learned trial judge erred in law when he dissolved the marriage, and made an order absolute contrary to the provisions of the Matrimonial Causes Act.
Ground Three
The learned trial judge erred in law when he failed to properly resolve the issues in controversy between the parties.
Ground Four
The learned trial judge erred in law when he failed to pronounce on crucial issues before him rather decided to leave same at the discretion of the respondent.
Ground Five
The learned trial judge erred in law when he failed to pronounce on the claims of the Appellant in the cross petition.
Ground Six
The learned trial judge erred in law when he awarded cost of proceedings against the appellant.
Ground Seven
The judgment is against the weight of evidence.
From the above seven grounds the appellant distilled the following five issues for determination:
Issue One
Whether the learned trial judge was in error when he pronounced that it was only subsequent marriage under the Act that can be offensive to a subsisting marriage under the Act and not a traditional one.
(Ground 1).
Issue Two
Whether the learned trial judge can make an order for dissolution of marriage absolute in his Judgment.
(Ground 2).
Issue Three
Whether the failure of the learned trial judge to evaluate the case of the appellant and pronounce specifically on same has occasioned a miscarriage of justice, (Grounds 3 and 5).
Issue Four
Whether the learned trial judge was right in abdicating his role as a judge to the respondent with respect to “settlement of properties” (Ground 4).
Issue Five
Whether in the light of the evidence and the circumstances of this matter, the learned trial judge rightly exercised his discretion to award cost of proceedings against the appellant, (Ground 6)
Grounds 7 and 8 from which no issue was raised for determination have been effectively abandoned and are accordingly discountenanced.
The respondent however raised three issues which in scope subsumed the appellant’s issues 1 to 5. However, the appellant’s issues 1 to 5, which are more apt, will be adopted for the determination of this appeal.
Issue 1
Whether the learned trial judge was in error when he pronounced that it was only subsequent marriage under the Act that can be offensive to a subsisting marriage under the Act and not a traditional marriage, (Ground one).
The learned counsel for the appellant relied on sections 3 (1) (a) and 35 of the Matrimonial Causes Act to submit that any subsequent marriage, whether customary or otherwise, contracted by respondent during the subsistence of the marriage between the appellant and the respondent was void. The appellant gave evidence on the existence of the respondent’s second marriage contracted between the respondent and the party-cited Mrs Chineze Enwezor (Nee Egbuna) on 12th April, 1999 with product of a baby boy. She relied on a document tagged “Bulletin” exhibit “D1″ which evidenced the traditional or customary engagement between the respondent and the party cited in a public ceremony of thanksgiving and dedication held at Catholic Church Cathedral Area 3, Garki, Abuja. (See page 46 of the record).”
The learned counsel for the appellant argued that the subsequent marriage entered into by the respondent with the party-cited Mrs Chineze Enwezor (Nee Egbuna) during the subsistence of her marriage with the respondent was void and offensive to the Marriage Act. The appellant urged the court to so hold.
It was however, argued that the issue whether traditional marriage was offensive to the Matrimonial Causes Act was never raised or argued by the parties at the lower court.
It was submitted for the respondent that there was no finding by the lower court that the respondent had contracted the alleged marriage with the party-cited under customary law, and that exhibit D1 did not prove the alleged marriage under customary law. It was further contended for the respondent that the pronouncement of the trial court was a matter of judicial opinion made obiter and not arising from findings or issues in dispute. Reliance was placed on the cases of Fawehinmi vs. Abacha (2000) 6 NWLR (Pt.660) 228 at 297 para E; Okeahialam vs. Nwamara (2003) 12 NWLR (Pt.835) 595. The respondent’s counsel argued that issue one is based on obiter which is not appealable and should be struck out.
In the reply brief the appellant’s counsel contended that the evidence adduced by the appellant has established that the respondent entered into another bigamous marriage with the party-cited on 12th April, 1999 under native law and custom, which tantamount to illegality.
The court was urged to discountenance the respondent’s arguments.
It is pertinent that the issue of the respondents second marriage with the party-cited was raised by the appellant in her cross petition dated and filed 14th March, 2002 in which she joined the party-cited as the co-adulterer alleging that the respondent married the party-cited when her marriage with the respondent was still subsisting, and that the party-cited already had a baby boy for the respondent. The appellant also claimed part ownership of the property situate at plot 7, block 3, phase L, Onitsha Isiafor Layout, a six-flat two storey building and also some of her personal belongings left in the matrimonial home.
The respondent testified as DWF1 and stated, inter alia, thus:
“Sometimes in the year 1997 specifically in the month of April, the petitioner brought in the party-cited into our matrimonial home. He callously beat me and threw me out of the house. He said to me that the party-cited is his wife and that if I did not want to stay, I could leave and so he beat me up. The party-cited had a child for the petitioner. According to petitioner, the marriage between them was contracted under the customary law. I have a bulleting from Catholic Church Area 3 showing that the petitioner went for thanksgiving and dedication. I can identify same through the name of the Church thereon. This is the document.”
The court admitted, without objection, the bulleting as exhibit D1.
The appellant further testified in chief as follows:
“Between the petitioner and myself, there is a house which was jointly built by us. It is located at plot 7, block 3, phase 1, Onitsha Isiafor Layout, a six-flat two storey building. Apart from that, there are other items personally belonging to me. These include one big trunk box of clothes, and other two boxes containing house-hold items and things including a refrigerator, yam pounder, sewing machine, gas cooker, assorted plates, a box of trinkets, share certificates of UBA, Nigeria Breweries, Nigeria Flour Mills, IBWA, and AP.”
The appellant also stated, under cross examination, that she did not commit adultery and that her ten year old marriage with the respondent was not blessed with any issue. However, she went further to state thus:
“I did not get married to one Okoli but I got a child on the 18th December, 2001 at Premier Hospital Jabi Abuja, and I am not divorced by my husband but he is the father of the child. I was never caught committing adultery with anybody.”
The question is who was the “he” referred to as the father of the appellant’s child in her testimony under cross examination on the 18th December, 2001? From the appellant’s testimony the respondent and one Mr. Okoli were mentioned regarding the fatherhood of the child. The appellant has, however, clearly excluded the respondent since she said there has been no issue of her marriage with the respondent. By that elimination the fatherhood unequivocally fell on Mr. Okoli to whom the appellant was not married. This further exposed the self-contradictory nature of the appellant’s own testimony. One wonders how the appellant was able to breed a child for Mr. Okoli or anyone else other than the respondent, without committing adultery. The exclusive fatherless glory of Jesus Christ could not have possibly been assimilated into. Since the appellant has eliminated her husband from being the father of her child, it becomes obvious that the appellant could not have possibly got her child by any biological means other than adultery, the fact that she was never caught, notwithstanding. This created a compelling circumstance for the respondent to either resort to extra marital promiscuity or take another wife under customary law, since he was still married under the Act to the appellant. The subsequent marriage under customary law, apart from being apparently necessitated by the appellant’s own conduct, has not been shown to be offensive to any provision of the Matrimonial Causes Act. One cannot therefore see anything pervasive in the decision of the lower court that the customary marriage entered into between the respondent and the appellant was not offensive. In fact, it was the only holy resort for the respondent in those circumstances.
Section 69 of the Matrimonial Causes Act defines marriage as envisaged under the Matrimonial Causes Act. It states thus:
“In this part of this Act ‘marriage’ includes a purported marriage that is void, but does not include one entered into according to Muslim rites or other customary law”
The marriage envisaged under the Matrimonial Causes Act for the purposes of maintenance, custody and settlements does not include one conducted under customary law as rightly held by the lower court.
Issue one is therefore answered in the negative and against the appellant. The corresponding ground one, therefore, fails.
Issue Two
Whether the learned trial judge can make an order for dissolution of marriage absolute in his Judgment. In other words this poser seeks to find out whether the order for dissolution of the marriage made by the lower court was absolute ab initio and if so, whether the court could properly make an order absolute for dissolution of the marriage.
The learned counsel for the appellant contended that the order made by the learned trial judge was absolute, and that the law only provides for making of an order nisi for dissolution of marriage, which becomes absolute by time lapse. He cited the provisions of sections 55 and 56 of the Matrimonial Causes Act and submitted that the order absolute made by the lower court was erroneous and ought to be set aside. He further relied on Joyce Ononuju Vs Anthony Ononuju (1991) 5 NWLR (Pt. 192) 479; Mrs (Dr) Abimbola Dejonwo & 1 Or Vs Miss Bidemi Dejonwo & Ors (1993) 7 NWLR (Pt.306) 438 at 502
The learned counsel for the respondent agreed with the above submission. It was further submitted for the respondent that the combined effect of sections 55, 56, 57 and 58 of the Matrimonial Causes Act is that a trial judge in divorce proceedings must at first instance, make an order nisi for dissolution of marriage, where sufficient grounds for dissolution of the marriage have been established. The decree nisi automatically matures to become absolute after 3 months or 28 days, from the date of the order nisi, as the case may be.
The learned counsel for the respondent submitted that the appellant’s contention that the learned trial judge made a decree absolute in his judgment was misconceived. The order for dissolution of the marriage made by the court was nisi not absolute ab initio. Section 56 of the Matrimonial Causes Act provide thus:
“A decree of dissolution of marriage … shall, in the first instance, be a decree nisi.”
By the foregoing provision, the decree made by the lower court dissolving the marriage between the appellant and the respondent was a decree nisi irrespective of the language used by the court in the judgment. It is immaterial that the court did not specifically mention that word ” nisi’ in the dissolution order. A decree for dissolution of marriage is always made nisi and only develops into an absolute one by time lapse. In other words, a decree absolute is never pronounced by a court but develops from decree nisi through maturity metamorphosis.
The decree of dissolution of marriage made by the court below was therefore a decree nisi not absolute. A decree absolute is not and can never be pronounced by a court. It is a process maturity rather than pronouncement.The second issue is also resolved against the appellant and this renders the corresponding ground two unmeritorious and unsuccessful.
Issues 3 and 4
Issues 3 and 4 are interwoven and will be taken together. The learned counsel for the appellant submitted that the learned trial judge failed in his duty to properly evaluate and specifically pronounce on the following:
(a) Joint ownership of plot 7 block 3 phase 1 Isiato Layout Onitsha
(b) Maintenance allowance
(c) Damages against the petitioner and party-cited
(d) Solicitor fees and general damages
Reliance was placed on the cases of Asani Sogunro & Ors Vs Aremu Yeku & Ors (2003) 12 NWLR (Pt.835) 644 at 666; Stephen Dan-Jumbo & Ors Vs Bernard Dan-Jumbo (1989) 5 NWLR (Pt.119) 33 at 37; Chief Kalulrolo & Ors Vs Ebe Ebe Uka & Ors (2002) 14 NWLR (Pt.786) 195 at 225; Bennett Karibo & Ors Vs Amos Greno & Ors (1992) 3 NWLR (Pt.232) 426 at 439-440.
It was submitted for the appellant that the lower court had failed to decide the important issue regarding the properties, still in the possession of the respondent, belonging to the appellant notwithstanding the itemisation of same. (See page 41 lines 40-41 and page 46 lines 9-13 of the record.) Rather the issue of claim for the appellant’s properties was left to the vagaries of the respondent’s whims and caprices.
It was further submitted for the appellant that the failure of the learned trial judge to pronounce on settlement of properties amounted to abdication of his constitutional and judicial responsibility and bestowing such duty on the petitioner/respondent to be a judge in his own case.
In his response to issues 3 and 4, the learned counsel for the respondent submitted that the learned trial judge did not need to make any specific order on settlement of property since he dismissed the cross petition in-to-to as being frivolous and face-saving endeavour.
The process of adjudication does not permit a court to simply grant or dismiss any claim without giving reasons for so doing. It is not enough to merely say a claim is frivolous without saying what makes it so.
It is pertinent that the appellant did not only claim for settlement of property but also painstakingly listed the properties in respect of which settlement was sought for thus:
(a) The petitioner and respondent jointly owned and built a house in Onitsha known as plot 7, block 3, phase 1, Isiafor Layout, Onitsha.
(b) The respondent’s big trunk with her personal effects, is in the custody of the petitioner.
(c) The respondent’s two big trunk boxes locked up with valuables in the custody of the petitioner.
(d) The respondent’s box of trinkets in the custody of the petitioner.
(e) The respondent’s household utensils given to her during her Ibu-nmaya and Idu-uno ceremony in the custody of the petitioner thus:
i. 1 Big Fridge
ii. One Gas Cooker
iii. Two Sewing Machines
iv. One Yam Pounder
v. Plates etc.
(f) The respondent’s share certificates that have been accruing in the petitioner’s post office box.
Apart from the claim for settlement of properties, the appellant also claimed for maintenance allowance of N15, 000.00 (Fifteen Thousand Naira) monthly. The appellant further claimed damages of N10, 000,000.00 (Ten Million Naira) against the petitioner/respondent and the party-cited and also general damages of N5, 000,000.00 (Five Million Naira) against the party-cited.
It is pertinent that the appellant’s claim for dissolution of marriage in her cross petition at the lower court was clearly subsumed by the respondent’s petition and that justified the lower court’s refusal to consider the same claim between the same parties on the same issue twice. In fact, it tantamount to an abuse of court process and that part of the claim seeking for dissolution of the marriage by merely repeating the respondent’s claim in the petition was rightly dismissed.
The appellant’s claim to joint ownership of property consisting of the two storey building of six flats situate at plot 7, block 3, phase 1, Isiafor Layout, Onitsha has been substantially and vehemently denied by the respondent. Testifying as P.W 1 under cross examination, the respondent stated that the he bought the land in question in 1990 and started building the said property in 1998 more than a year after the appellant had deserted the matrimonial home. The appellant, on the other hand did not substantiate her claim with date of acquisition as the respondent did. The preponderance of probabilities in the circumstances favour the respondent’s testimony which was substantiated with the date he singularly bought and built the property to which the appellant claims joint ownership. The standard of proof in civil cases is on the preponderance of probabilities, which in this case favours the respondent’s claim. The appellant’s claim to the property consisting of the two storey building of six flats situate at plot 7, block 3, phase 1, Isiafor Layout, Onitsha therefore rightly failed.
The appellant is however entitled to recover her personal belongings from the matrimonial home, which she has proved by preponderance of evidence as follows:
(1) The respondent’s big trunk with her personal belongings in the custody of the petitioner.
(2) The respondent’s 3 boxes in the custody of the petitioner.
(3) The respondent’s household utensils consisting of:
(i) 1 Big Fridge
(ii) One Gas Cooker
(iii) Two Sewing Machines
(iv) One Yam Pounder,
(v) Plates etc.
(4) The respondent’s share certificates that have been accruing in the petitioner’s post office box.
However, the appellant’s conduct of breeding a child out of wedlock during the subsistence of her marriage with the respondent makes her undeserving of damages. He who comes to equity must have his hands clean. The hands of the appellant in this case are terribly dirty. The law will not assist her to benefit from her own wrong doing.
In divorce proceedings, the party claiming damages must justify his or her claim and also that his or her conduct was not responsible for the damages suffered. In the instant case the appellant’s breed of a child which she claimed does not belong to the respondent, was apparently the reason that triggered the long separation and subsequent marriage under customary law between the respondent and the partly-cited. The appellant does not therefore qualify for damages caused by her own conduct. In fact she was lucky the respondent did not claim for damages against her. The sleeping dog should be let to lie.
Moreover, the appellant’s claim to maintenance is unsustainable as her status or standing in life is parallel to that of the respondent.
Section 70 (1) of the Matrimonial Causes Act aptly provides thus:
“Subject to this section, the court may, in proceedings with respect to the maintenance of a party to a 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 this case the appellant was, at that time, an Assistant Chief Administrative Officer on GL.13 which was exactly equivalent mutatis mutandis to that of the respondent who was an Assistant Chief Account on the same salary grade level. The parties, therefore, have the same capacity and means. This court in Anyaso Vs Anyaso (1998) 9 NWLR (Pt.564) 150 at 176 paras A-C held per Salami JCA (as he, then was) thus:
“By virtue of the provision of section 70 (1) of the Matrimonial Causes Act, cap 220, Laws of the Federation of Nigeria, 1990, the court may in proceedings with respect to the maintenance of a party to a marriage 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 instant case the trial court having carefully weighed the earning capacity of the parties before coming to a conclusion, its decision is flawless and not reproachful. See also Neghenebor Vs Negbenebor (1971) 1 ALL NLR 210 pg. 176 paras A-C.
From the surrounding circumstance including the earning capacity of the parties one hardly sees anything perverse in the lower court’s refusal to grant the appellant’s claim for maintenance and settlement of property, Issues 3 and 4 are resolved against of the appellant except for her personal belongings as listed above.
Issue 5
The final issue No. 5 questions the award of costs against the appellant, which the learned counsel for the appellant contended was arbitrary because the court below did not enquire into the appellant’s ability to pay costs. It was also argued that in this case there was neither victor nor vanquish and therefore the event in the case did not support award of cost.
The learned counsel for the respondent submitted that the award of costs was predicated on the failure of the appellant’s cross petition and her status as an Assistant Chief Administrative Officer on GL.13 at the time the cost was awarded.
Moreover, the respondent further argued, an appeal against order for costs requires leave and since no leave was obtained, the claim of costs could not succeed. Reliance was placed on section 241(2) (c) of the Constitution and the case of Governor Vs Onyelu (1965) 1 ALL NLR 191 at 192.
Award of costs in divorce proceedings does not depend on who the successful party is. Rather the more important consideration is whose conduct ignites the litigation or the breakdown of the marriage.
An erring party should not be encouraged to benefit from his/her self-manufactured fault.
Moreover it is only when an appellant appeals solely on costs that he may require leave. Appeal on costs and other issues, not requiring leave, will not require the appealing party to seek for leave. In Anyaso Vs Anyaso (supra) Salami JCA (as he then was) observed thus:
“When a party appeals to the Court of Appeal against the decision of a High Court solely as to costs there is no right of appeal except with the leave of the High Court or the Court of Appeal by virtue of section 220 (2) (c) of the 1979 Constitution. However, the appeal on costs would be as of right if, in addition to appeal as to cost, there is appeal on other issue or issues. In the instant case ground 7 of the grounds of appeal is competent in view of the six other grounds of appeal raising other issues other than issue of costs.”
I find no reason for tempering with the order on costs made by the lower court. Issue 5 is therefore resolved against the appellant and the corresponding ground 6 accordingly fails.
The appeal therefore fails on all the issues except for the appellant’s claim to personal chattels as listed above on the basis of which the appeal scores partial success. The appeal succeeds partly in respect of the appellant’s claim to her specific personal belongings.
Accordingly it is ordered that the appellants personal belongings left in the matrimonial home as listed above be returned to her forthwith:
The judgment of the court below is otherwise affirmed in every other respect.
The cost of N15,000.00 awarded in the court below in favour of the respondent is affirmed. There shall be costs in this court assessed at N30, 000.00 in favour of the appellant.
JIMI OLUKAYODE BADA, J.C.A.: I had a preview of the Lead Judgment my Lord, HUSSEIN MUKHTAR, JCA just delivered and I agree entirely with the reasons given therein and the conclusion reached.
On the issue of damages, I agree with the view of my Lord that the appellant is not entitled to damages and maintenance allowance.
This is because a person will not be allowed to benefit from his own wrong. The appellant’s conduct of breeding a child out of wedlock during the subsistence of her marriage with the Respondent is unacceptable in a decent society.
He who comes to equity must come with clean hands. The adulterous relationship of the Appellant led to the separation between her and the respondent.
It is my view that the appeal succeeded only in respect of the recovery of the Appellant’s personal belongings from the matrimonial home.
I abide by the consequential orders made in the lead Judgment.
EJEMBI EKO, J.C.A.: The facts of this case have been adroitly summarized in the judgment of my learned brother, Hussein Mukhtar, JCA, just delivered. I completely align myself with the analyses and conclusions made in the said judgment on the issues canvassed in the appeal.
The learned trial Judge can not be faulted in his judgment which dissolved the marriage between the parties herein. The marriage, from the facts, circumstances and all indications had broken down irretrievably.
The appellant had pleaded in paragraph 9(a) of the amended Answer and Cross Petition that she, jointly with the respondent herein, own and built a house known as plot 7, Block 3 Phase 1, Isiafor Layout, Onitsha. And had sought that an order be made that the house be given to her “in single occupation on the principle of Deserted Wife Equity.” The burden of proving this joint ownership and development of this property by her and the respondent was on her to discharge in virtue of sections 135 – 137 of the extant Evidence Act. I do not think she discharged that burden by her mere assertion at page 46 that between herself and the respondent, “there is a house jointly built by us.” Is that how to prove joint ownership of a landed property? That is not.
He who asserts must prove. Further assertion or re-assertion does not prove initial assertions. It therefore behooved the appellant to prove that she jointly owned and built the said property with the respondent in order to succeed in claim in paragraph 13 (h) of the Amended Answer and Cross Petition. The burden on her becomes more glaring from the stout denial of the assertion by the respondent. In any case, the trite principle of law and common sense is that, what is alleged without proof can be denied without proof.
The evidence on the printed record does not show that the appellant was a deserted wife in occupation of any matrimonial house. She, like the respondent, lived in Abuja at all times material to the petition and cross-petition. The appellant did not refute the categorical evidence of the respondent that he bought that property in his own right and commenced development of it alone “in 1998, more than one year after the (appellant) deserted the matrimonial home.” The appellant testified thereafter and remained mute. She offered nothing in proof of her assertions, or in rebuttal of the evidence of the respondent herein.
I can not see how the equity of the deserted wife in occupation can assist the appellant; a woman, from the over whelming evidence, that was unfaithful and adulterous. I do not see what principle of equity can come to the aid of this adulteress.
Equity acts in personam. And it does not aid a party with dirty hands. He, who comes to equity, it is said, must come with clean hands.
Having said all these; I hereby adopt the judgment of my learned brother HUSSEIN MUKHTAR, JCA, including all the orders therein, as mine.
Appearances
I.F. ChudeFor Appellant
AND
Respondent – Not represented but duly served with hearing notice.For Respondent
