OKECHUKWU OBED UZOCHUKWU v. CHIBUZOR TOCHUKWU UZOCHUKWU
(2014)LCN/7583(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 3rd day of December, 2014
CA/A/66/2013
RATIO
COURT; INTERFERENCE; THE CONDITIONS IN WHICH AN APPELLATE COURT WILL INTERFERE WITH THE EXERCISE OF THE FUNCTION OF A TRIAL COURT
It has become trite and indeed hackneyed that evaluation of evidence and ascription of probative value to it is the primary function of a trial court who had the singular opportunity of seeing, observing and listening to the witnesses. An appellate court would not normally interfere in such an exercise or substitute its own view for that of the trial court except where:
(i) The trial court failed to make use of the opportunity of seeing, hearing and observing the witnesses.
(ii) Where it drew a wrong conclusion from the accepted evidence or formed an erroneous view of it; or
(iii) Where its findings are perverse. See MOGAJI V. ODOFIN (1978) 4 SC 91, ENANG V. ADU (1984) 11 SC 72 and OLODO V. JOSIAH (2010) 18 NWLR (1225) 653. per. JOSEPH E. EKANEM, J.C.A.
FAMILY LAW; PETITION FOR DISSOLUTION OF MARRIAGE; ON WHAT BASIS IS THE PETITION FOR DISSOLUTION OF MARRIAGE IS GRANTED
Again, a petition for dissolution of marriage is not granted on the basis that the respondent admitted the same in his/her answer. The petitioner must lead satisfactory evidence to prove his entitlement to the decree. See Section 44 (3) of the MCA and OMOTUNDE V. OMOTUNDE supra. per. JOSEPH E. EKANEM, J.C.A.
JUSTICES
ABUBAKAR DATTI YAHAYA Justice of The Court of Appeal of Nigeria
JOSEPH E. EKANEM Justice of The Court of Appeal of Nigeria
MOHAMMED MUSTAPHA Justice of The Court of Appeal of Nigeria
Between
OKECHUKWU OBED UZOCHUKWU – Appellant(s)
AND
CHIBUZOR TOCHUKWU UZOCHUKWU – Respondent(s)
JOSEPH E. EKANEM, J.C.A. (Delivering the Leading Judgment): The appellant and the respondent got married on the 1st day of January, 1996, under the Marriage Act 1983. The union has been blessed with two children – a male and a female. In the course of time, the relationship between the couple turned sour, resulting in the respondent filing a petition for dissolution of the marriage. The petition was filed at the High Court of the Federal Capital Territory, Abuja Division (“the Lower Court” for short). The appellant reacted by filing a cross-petition. The respondent withdrew her petition, leaving the appellant’s cross petition as the only petition for consideration by the Lower Court.
After trial and addresses, the lower court dismissed the cross petition for being devoid of merit.
Aggrieved by the decision, the appellant has appealed to this court by way of a notice of appeal containing five grounds of appeal. Out of the five grounds of appeal the appellant in his brief of argument which was deemed properly filed and served on 18th November, 2013 formulated five issues for the determination of the appeal.
The issues are as follows:
“(a) whether from the pleadings and evidence before the court in this case, the learned trial judge was right to hold that there was no evidence that the parties have lived apart for a continuous period of over 2 years preceding the presentation of the petition and cross-petition and both parties are not objecting to an order of dissolution of their marriage pursuant to Section 15 (2) (e) of the Matrimonial Causes Act. GROUND ONE.
(b) Whether the legal principle of corroboration as enunciated in IBRAHIM V. IBRAHIM (2007) 1 NWLR (1015) 383, AT 390 and applied suo motu by the learned trial court to the benefit of the Cross Respondent, does not avail the cross petitioner under the principle of fair hearing. GROUND TWO
(c) Whether the lower trial court has jurisdiction to consider and rely the Respondent’s answer to the cross petition filed on 29/04/2011 to dismiss Appellant’s cross petition in the face of its earlier ruling of 13/04/2011 dismissing the answer to cross petition on the authority of the Supreme Court decision in YOUNG SHALL GROW MOTORS LTD V. OKONKWO (2010) 15 NWLR (PT.1217) 524 AT 543. GROUND THREE
(d) Whether the contradicted and discredited evidence of the DW2 and DW3 on the authority of the Supreme Court decision in EZEMBA V. IBENEME (2010) 10 NWLR (PT 894) 617 is admissible to corroborate the Cross Respondent’s allegation of beating against the cross petitioner. GROUND FOUR
(e) Whether the judgment is not against the weight of evidence. GROUND FIVE
It must be mentioned that, inspite of the service of the appellant’s brief on the respondent, she failed or neglected to file her brief. Consequently, leave was granted, on the appellant’s application, for the appeal to be heard on the brief of argument of the appellant only. Where a respondent fails to file his/her brief, as in this case, that will not mean automatic success of the appeal as the appellant must succeed on the strength of his case. The respondent will be deemed to have admitted the truth of everything stated in the appellant’s brief provided it is borne out of the record of appeal. See UNITY BANK PLC V. BOUARI (2009) 7 NWLR (1086) 372, 403.
I shall first consider Ground three of the grounds of appeal in the notice of appeal. It is as follows:
“The lower trial judge failed and refused to be bound by the doctrine of judicial precedent and thus occasioned a miscarriage of Justice.
PARTICULARS OF ERROR
(a) The learned trial Judge failed to consider and evaluate the Supreme Court decisions referred to by the Appellant and apply or distinguish them in the case of the Appellant.
(b) By failing to apply the cited case law decisions to the case of the Appellant, the Learned trial Judge denied Appellant his constitutionally guaranteed right to fair hearing and rendered the entire judgment a nullity.”
I am at sea as to what exactly the complaint of the appellant is about in this ground. It is not specific as to which Supreme Court decision the Lower Court failed to follow or distinguish and in what aspect of the judgment it failed to do so. A ground of appeal is a complaint about an error or misdirection in the judgment of the court and must put the other side and the court on notice of what the error or misdirection is precisely. Order 6 Rule 3 (2) of the Court of Appeal Rules provide that:
“Any ground which is vague or general in terms or which discloses no reasonable ground of appeal shall not be permitted, save the general ground that the judgment is against the weight of the evidence, and ground of appeal or any part thereof which is not permitted under this Rule may be struck out by the court of its own motion or on application by the Respondent”
Vagueness of a ground may arise where:
(i) It is couched in a manner which does not provide any explicit standard for its being understood;
(ii) When the complaint therein is not defined in relation to the subject;
(iii) It is not particularized or
(vi) The particulars are clearly irrelevant.
See ADDAX PETROLEUM DEVELOPMENT (NIG) LTD V. DUKE (2010) 8 NWLR (1196) 278, 294 and EJEKAM V. DEVON INDUSTRIES LIMITED (1998) 1 NWLR (534) 417, 434 and MOMOH INTERNATIONAL LIMITED V. ROMAINE and SONS LIMITED (1993) 8 NWLR (314) 746,754.
Ground three of the grounds of appeal has the viruses set out in (i) and (ii) supra. I accordingly strike it out along with Issue Three formulated from it.
Apart from the above, Issue three and the argument thereon disclose an attack on the interlocutory ruling of the lower court delivered on 23rd June, 2011, granting the respondent extension of time within which to file and serve her answer to the cross – petition, and deeming the answer already filed and served as properly so done. Being an interlocutory decision, the appellant had a period of 14days from the 23rd of June, 2011 (the date of the ruling) to file an appeal against. See Section 24 (2) (a) of the Court of Appeal Act, 2004. Alternatively, the appellant as it was done could incorporate his ground of appeal against the interlocutory decision in his notice of appeal against the final judgment of the Lower Court but leave of the appellate court must be applied for and obtained to file the interlocutory appeal outside the time limit prescribed. See ONWE V. OKE (2001) 3 NWLR (700) 406, 417 and FIRST ALSTATE SECURITIES LTD. V. ADESOYE HOLDINGS LIMITED (2013) 16 NWLR (1381) 470, 490.
The appellant failed to appeal against the ruling within time and did not also obtain leave to appeal against the ruling in the final appeal.
After considering the grounds of appeal and the remaining issues, it is my view that issues (a) and (e) in the appellant’s brief distilled from grounds one and five of the grounds of appeal question the lower court’s evaluation of evidence and ascription of probative value to them. They can be rephrased and combined together. Issues (b) and (d) touch on the evidence of DW2 and DW3 corroborating the evidence of the respondent. They can be rephrased and combined together. Thus the issues that arise for determination in this appeal are:
1. Whether the lower court rightly evaluated the evidence before it and came to a right conclusion.
2. Whether the evidence of DW2 and DW3 was admissible and corroborated the respondent’s allegation of assault against the appellant.
The appellant proffered the following arguments in respect of the issues:
Issue One-
Whether the Lower Court rightly evaluated the evidence before it and came to a right conclusion.
Counsel urged the court to examine the compliance or otherwise by the lower court with Section 15(2) (c) of the Matrimonial Causes Act (MCA) in the light of admission by the appellant and respondent that they did not object to a decree of dissolution of the marriage between them. He submitted that the requirement of the Section is proved once the petitioner and the opposing party admit that they do not object to a decree of dissolution of the marriage. It was his view that the Section does not require corroboration nor does it admit the common law concept that a trial court may not grant a decree of dissolution of marriage even when both parties desire it. Thus, he argued, the Lower Court erred by failing to issue a decree of dissolution of the marriage in the absence of objection by the respondent.
Counsel referred to Section 15 (3) of the MCA and submitted that the pleadings of the parties and evidence on record showed that the parties had lived apart for over 2 years before the petition was filed and that the respondent admitted that their marriage had broken down irretrievably, and did not object to its dissolution. He submitted that what is admitted requires no further proof. Counsel added, as a footnote, that on account of order vii Rule 13 (3) (a) of the Matrimonial causes Rules (MCR) the withdrawal of the respondent’s petition did not affect the reply and answer thereto.
Counsel submitted that when the admissible evidence adduced by the appellant is weighed against that adduced by the respondent, the judgment of the lower court is against the whole gamut of evidence adduced at the trial court.
Issue Two-
Whether the evidence of DW2 and DW3 was admissible and corroborated the respondent’s allegation against the appellant.
Counsel stated that the lower court suo motu raised the principle of corroboration and applied it to the benefit of the respondent in deciding the allegation of beating on the authority of IBRAHIM V. IBRAHIM (2007) 11 NWLR (1015) 383 without allowing the appellant to address on it and failed to extend the same principle to the benefit of the petitioner in proof of adultery. He noted that the respondent admitted travelling from Owerri to Port-Harcourt where she spent two days in the company of the co-respondent without telling the petitioner. This, he submitted, shifted the burden of proof to the respondent to prove where and with whom she spent the two days and to satisfy the court that she did not commit adultery with the co-respondent.
It was his view that the respondent did not discharge the burden by not calling the co-respondent and the persons she claimed to stay with in Port-Harcourt to corroborate her evidence. She was thus liable for adultery, he concluded.
Counsel went on to submit that DW2 and DW3 were not witnesses of truth as demonstrated in their cross-examination. He stated that the evidence of DW2 was hear-say while that of the DW3 defied reason and common sense. Their evidence, he argued, should have been rejected by the lower court on the authority of EZEMBA v. IBENEME (2004) 14 NWLR (894) 654.
I shall proceed to deal with the two issues serially.
1. Whether the lower court rightly evaluated the evidence before it and came to a right conclusion.
The lower court after evaluating the evidence before it came to the conclusion that the “cross -petitioner has not proved any of the grounds upon which the petition was based” and so he dismissed the petition. It has become trite and indeed hackneyed that evaluation of evidence and ascription of probative value to it is the primary function of a trial court who had the singular opportunity of seeing, observing and listening to the witnesses. An appellate court would not normally interfere in such an exercise or substitute its own view for that of the trial court except where:
(i) The trial court failed to make use of the opportunity of seeing, hearing and observing the witnesses.
(ii) Where it drew a wrong conclusion from the accepted evidence or formed an erroneous view of it; or
(iii) Where its findings are perverse. See MOGAJI V. ODOFIN (1978) 4 SC 91, ENANG V. ADU (1984) 11 SC 72 and OLODO V. JOSIAH (2010) 18 NWLR (1225) 653.
A court hearing a petition for the dissolution of a marriage shall grant the relief if the marriage has broken down irretrievably. See Section 15 (1) of the MCA. Sub-section (2) of Section 15 sets out facts upon which the court could hold that a marriage has broken down irretrievably. Sub-section 2 (e) forms the crux of the argument of the appellant. It states:
“The court hearing a petition for a decree of dissolution of marriage shall hold the marriage to have broken down irretrievably if, but only if, the petitioner satisfies the court of one or more of the following facts –
(e) That parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition and the respondent does not object to a decree being granted.”
I agree with counsel for the appellant that the use of the word “shall” in the con of the Sub-section imports a mandatory meaning – a command – on the authority of OMOTUNDE V. OMOTUNDE (2001) 9 NWLR (718) 252, 284, OGIDI V. STATE (2005) 5 NWLR (918) 286, 327 and AMOKEODO V. INSPECTOR – GENERAL OF POLICE (1999) 69 LRCN 1084, 1104 and 1113. I do however part company with him in his submission that since the respondent pleaded and admitted that the marriage has broken down irretrievably and that she did not object to its dissolution, the lower court was without discretion not to grant an order of dissolution.
The reason is that Section 15 (2) (e) of the MCA is divided into two cumulative parts;
(i) The petitioner must satisfy the court that the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition, and
(ii) The respondent does not object to a decree of dissolution of the marriage being granted.
The two conditions must be present to warrant the court granting a decree of dissolution of the marriage under Section 15 (2) (e) of the MCA. See ODILI V. ODILI (1973) 3 ECSLR 62, 63.
Again, a petition for dissolution of marriage is not granted on the basis that the respondent admitted the same in his/her answer. The petitioner must lead satisfactory evidence to prove his entitlement to the decree. See Section 44 (3) of the MCA and OMOTUNDE V. OMOTUNDE supra.
There is no doubt that the respondent in both the pleading – answer to the petition and evidence, made it clear that she did not object to a decree of the dissolution of the marriage being granted. See paragraph 76 (a) of the answer and her written deposition as well as her evidence in cross-examination at page 526 of Vol. 11 of the record. Thus the second arm of the requirement in section 15 (2) (e) of the MCA was satisfied.
What of the first arm? The appellant pleaded and led evidence to the effect that the respondent “deserted” the matrimonial home on 29/3/2007. He also led evidence to that effect in his written deposition. See paragraph 13 thereof at page 85 of the reward. The respondent admitted leaving the matrimonial home even though she did not state the date. She testified to this in her written deposition paragraphs 7 and 8. It is clear that the respondent left her matrimonial home on 29/3/2007. They never got back together again. This is clear from the evidence of the parties at page 486 of Vol. 11 of the record and page 319 of Vol. 1 of the record. The cross-petition of the appellant was filed on 11/3/2010. The parties thus lived apart for a continuous period of at least two years immediately preceding the presentation of the petition. The lower court therefore erred in holding that there was no evidence that the living apart was for a continuous period of at least two years preceding presentation of the petition.
I must add that it is immaterial who has between the parties caused them to live apart as it seems to me that Section 15 (2) (e) of the MCA does not permit the court to go into a fault-finding expedition. See OMOTUNDE V. OMOTUNDE supra in which the Court of Appeal expressed a similar view on Section 15 (2) (f) of the MCA which view is applicable to Section 15 (2) (e) of the MCA. See also IBEAWUCHI V. IBEAWUCHI (1974) UILR (103) 67 and ORUGOH V. ORUGOH (1974) 4 UILR (1) 120.
The lower court erred therefore in holding that the appellant could not benefit from the living apart that he caused.
It is my view that there is enough reason for this court to interfere in the evaluation of evidence by the Lower Court. I therefore answer issue one in the negative and thus resolve it in appellant’s favour.
Issue Two-
Whether the evidence of DW2 and DW3 was admissible and corroborated the respondent’s allegation of assaulting the appellant.
Appellant’s counsel complained that the lower court suo motu raised the principle of corroboration to the benefit of the respondent in respect of assault but did not apply it to his benefit in regard to adultery.
A court is entitled to suo motu apply any rule of law that is relevant to a proven or admitted fact. This is because the principle that the court ought not to raise an issue suo motu and decide upon it without hearing from the parties applies mainly to issues of fact. See EFFIOM V. CROSS RIVER STATE INDEPENDENT ELECTORAL COMMISSION (2010) 14 NWLR (1213) 106; 133.
I have examined the record of appeal and I do not see any reason to disturb the finding of the lower court that the appellant did not prove adultery. Adultery is to be proved strictly and clearly. See BLYTH V. BLYTH (1966) 1 ALL ER 525. On the state of the pleadings and the evidence led by the petitioner (which was based on suspicion and emotion – induced speculation) the burden of proof was not shifted to the respondent to prove that she did not commit adultery. Thus the question of corroboration of the evidence did not arise.
The lower court at page 604 of Vol. 11 of the record of appeal believed the evidence of the respondent as to the appellant assaulting her, finding corroboration of it in the testimony of DW3. It held that the evidence of the respondent was more probable on this point.
The law is that corroboration of the evidence of the parties by an independent witness in matrimonial cases is highly desirable unless there is an acceptable explanation for the absence of corroborative evidence. See IBRAHIM V. IBRAHIM (2007) 1 NWLR (1015) 383.
Evidence is said to corroborate another if it is an independent evidence that confirms in some material particular the truth of the other evidence in respect of an issue of fact. See NWAMBE V. STATE (1995) 3 NWLR (384) 385. A piece of evidence, to be corroborative of another must itself be admissible and credible. See UGHENEYOVWE V. STATE (2004)-12 NWLR (888) 626, 648.
I have read the evidence of the DW3 and I do not see any irreconcilable contradiction and conflict in it. The mere fact that he did not remember the size of the appellant’s shoe only shows a normal imperfection in human memory. Contrary to the assertion of counsel, the DW3 testified that he bought the shoes in Lagos and not Abuja because it was cheaper there. I observe that the witness’ evidence on assault by the appellant on the respondent was not shaken under cross-examination. The fact that he did not report the assault to the police does not detract from the potency and credibility of his evidence for, I take judicial notice of the fact that many crimes especially domestic violence, go unreported.
The evidence of the DW2 who was not at the scene of the assault could not serve to support the respondent’s testimony on this point. This however is of no moment as it is not every error in the judgment of a lower court that will lead to a reversal of its judgment. It is only where the error results in a miscarriage of justice that the judgment will be reversed. See AKAYEPE V. AKAYEPE (2009) 11 NWLR (1152) 217, 237.
Since there was corroboration in the evidence of DW3, I do not see any reason to disturb the findings of the Lower Court. I resolve this issue against the appellant.
Having resolved issue one in favour of the appellant, I hold that the appeal has merit. It therefore succeeds and it is allowed. The judgment of the Lower Court is hereby reversed and in its place a decree nisi is hereby issued dissolving the marriage between the appellant (Okechukwu Obed Uzochukwu) and the respondent (Chibuzor Uzochukwu) which was celebrated at the Chapel of Redemption, University of Nigeria, Enugu Campus on the 1st day of January, 1996. The decree shall be made absolute three months from today if there be no further development.
As regards the custody of the two children of the marriage, I note that the first child, Victory Nwachukwu Uzochukwu a male, was born on 31/5/2000 and is therefore 14 years old. The second child, a female, was born on 12/9/2003 and is therefore 11 years old. The paramount consideration in award of custody is the interest of the children. See section 71 (1) of the MCA. Both parents appear to be equal to the task of maintaining the children and are ready to give affection and proper guidance to the children. It is my view that the interest of the male child who is 14 years old will best be served by granting custody to the father who will naturally be able to provide strong guidance for the teenage boy.
Regarding the female child, I shall refer to the dictum of KARIBI-WHYTE, JSC IN WILLIAM V. WILLIAM (1987) 4 SC 32, 85 as follows:-
“In a case like this one where both parents are eminently qualified, able and anxious to give affection and proper guidance to their child for whom they are responsible; they are likely to co-operate and swallow their vanity in the interest of the welfare of the child because of the affection they have for the child. There can be no real objection in this circumstance for an order for joint custody.”
Consequent upon the above and coupled with the fact that the female child is only eleven years old, I hereby order for the joint custody of the girl, Faithful Akuabata Uzochukwu, with care and control to the respondent. The appellant shall be responsible for the cost of education of not only Faithful but also victory. The appellant shall also be responsible for the maintenance of the girl. The respondent shall have a right of access to Victory at all reasonable times and the two children shall spend half of every holiday together with the respondent.
The parties shall bear their costs.
ABUBAKAR DATTI YAHAYA, J.C.A.: I have read before now, the lead Judgment of my learned brother Ekanem JCA and I agree with the reasoning and the conclusion reached therein. A joint custody of Faithful Akuabata Uzochukwu by both parents is a very thoughtful order as it will serve the interest of the female child in a most positive way. I therefore allow the appeal and set aside the judgment of the lower court.
No order as to costs.
MOHAMMED MUSTAPHA, J.C.A.: I read before now the judgment just delivered by my learned brother Joseph E. Ekanem, JCA.
I am in full agreement with the reasoning and conclusions reached and equally abide by the orders made in the lead judgment.
Parties should bear their cost.
Appearances
Onyechi Egwuonwu, EsqFor Appellant
AND
Respondent unrepresented.For Respondent
