MRS. YETUNDE MODUPE KAKULU v. MR. EDMUND IGWEI KAKULU (2016)

MRS. YETUNDE MODUPE KAKULU v. MR. EDMUND IGWEI KAKULU

(2016)LCN/8456(CA)

In The Court of Appeal of Nigeria

On Thursday, the 31st day of March, 2016

CA/K/244/2014

RATIO

APPEAL: DUTY OF APELLATE COURT TO ATTEND TO PRELIMINARY OBJECTION FIRST
Where a preliminary objection is raised in an appeal, the appellate Court has a duty to attend to it and must dispose it first before venturing into the appeal before it. See 559; E.A. INDUSTRIES LTD. v. NERFUND (2009) 8 NWLR (PT.1144) P. 535; UBA PLC V. ACB (NIG.) LTD. (2005) 12 NWLR (PT.939) P. 232 and Abiola v. Olawuye (2006) 13 NWLR (Pt. 996) P. 1. A preliminary objection in a brief of argument is to be attended and resolved before delving in to the appeal because it may fore-close or abort the appeal in limine. PER IBRAHIM SHATA BDLIYA, J.C.A.
PROCEDURE: PRELIMINARY OBJECTION; EFFECT OF A PRELIMINARY OBJECTION UPHELD BY THE COURT
Where a preliminary objection is upheld by the Court, the appeal is to be deemed aborted or terminated in limine without necessarily determining the rights of the parties thereto, one way or the other, on the merit. see CBN v. Beekiti const. Ltd. (2011) 5 NWLR (Pt. 1240) P. 203 @ 222: Odunze v. Nwosu (2007) 13 NWLR (Pt. 1050) P. 1; ANPP v. RE. C. Akwa lbom State (2008) 8 NWLR (Pt. 1080) P. 453. PER IBRAHIM SHATA BDLIYA, J.C.A.
APPEAL: ISSUE FOR DETERMINATION; EFFECT OF ANY ISSUE NOT DERIVED FROM A GROUND OF APPEAL
The law is trite, every issue for determination must be formulated from one or more grounds of appeal and any issue which does not arise from a ground of appeal is incompetent. such issue is irrelevant to the appeal and would therefore be discountenanced by the Court. Osinupebi v. Saidu (1982) 7 SC 104; Government of Gongola state v. Tukur (1987) 2 NWLR (Pt. 56) 308; Western steel works Ltd. v. Iron & Steel workers union (No. 2) 1987) 1 NWLR (Pt. 49) 284. See Dada v. Dasunmu supra P, 156 – 157.” PER IBRAHIM SHATA BDLIYA, J.C.A.
EVIDENCE: EVALUATION OF EVIDENCE; DUTY OF THE TRIAL COURT TO EVALUATE EVIDENCE
The law is trite, a trial Court has the duty to evaluate the evidence adduced before it and ascribe probative thereto in deciding or preferring which evidence is credible, and which evidence is unreliable, before taking a decision on any matter in dispute. On the duff of a trial Court to evaluate evidence, ESO, JSC (of blessed memory) had this to say in the case of Chief Frank Ebba v. Ogodo LC 499 @ 507 – 508:
“Indeed, it was the duty of the trial Court to assess witness, form impressions about them and evaluate their evidence in the light of the impression which the Court forms of them. That is one reason why the trial Court is named a “trial Court”. It is the trial Court and hence a Court of appeal should attach the greatest weight to the opinion of the trial judge that has the duty to see and indeed in the case, has seen the witnesses and also heard their evidence”
The proper approach to the evaluation of evidence and ascription of probative value to the evidence adduced has been enunciated in the case of Otaigbe vs. B.C.C Ltd (2014) All FWLR (Pt. 747) P. 707 thus:
“Thus the totality of the evidence led in the action by both sides are put on an imagination scale and weighed together, That is the admissible and relevant evidence of the Plaintiff and also the defence, are put on each side of the scale respectively and weighed together in order to determine whose evidence weighed are or is heavier than the other… this will not depend upon the number and quantity of witness for either side but by the QUALITY of probative value of their Piece of evidence.”
Therefore, in evaluating any piece of evidence placed before it by parties, a Court of law is duty bound to consider the totality of the evidence led by each of the parties, it shall then place it on the imaginary scale of justice to see which of the two sides weighs more creditably than the other. Thus, evaluation of evidence entails the assessment of same so as to give value or quality to it. Evaluation of evidence by a trial Court should necessarily involved a reasoned belief of the evidence of one of the contending parties and disbelief of the other or a reasoned preference of one version to the other. See Lagga v. sarhuma (2008) 16 NWLR (Pt. 1114) P. 427 @ 460. PER IBRAHIM SHATA BDLIYA, J.C.A.

Justices

IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria

HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria

AMINA AUDI WAMBAI Justice of The Court of Appeal of Nigeria

Between

MRS. YETUNDE MODUPE KAKULU Appellant(s)

AND

MR. EDMUND IGWEI KAKULU Respondent(s)

IBRAHIM SHATA BDLIYA, J.C.A. (Delivering the Leading Judgment): Mrs. Yetunde Modupe Kakulu, the appellant, who was the petitioner at the High Court of Justice, Kaduna State (the lower Court) filed a divorce petition against Mr. Edmund Igwei Kakulu, (the respondent) in suit No. KDH/KAD/837/2011, seeking for the dissolution of her marriage, and for an order granting her the custody of the four (4) children of the marriage.
The respondent filed an answer to the petition and cross-petitioned whereby he sought for an order to be reimbursed by the appellant the sum of Two Million Two Hundred Thousand Naira (N2,200,000.00) as his contribution to the procurement of their matrimonial home, No.2 Algeria crescent, Barnawa, Kaduna.

After the close of pleadings, the matter proceeded to trial culminating in the delivery of a judgment on the 21st of August, 2013, wherein the reliefs sought by the appellant were granted and the respondent’s claim for the reimbursement of his contribution to the procurement of the matrimonial home was also granted. Peeved and piqued by the order of the Court to reimburse the respondent with the sum of

N2,200,000.00, being his contribution to the acquisition of the said House No. 2 Algeria crescent, Kaduna, the appellant appealed to this Court by filing a Notice and grounds of appeal on the 26th of August 2013.

The appellant filed her brief of argument on the 12th of August, 2015, containing 2 issues distilled from the 4 grounds of appeal. The respondent filed his brief of argument on the 28th of August, 2015. The respondent gave a notice of preliminary objection to the competency of issue 2 raised in the appellant’s brief of argument and argued same in his brief of argument. He urged that the preliminary objection be sustained, and issue 2 be struck out or discountenance in the hearing of the appeal. In the event of not sustaining the preliminary objection, the two issues contained in the appellant’s brief of argument were adopted by the respondent for determination in the appeal. Where a preliminary objection is raised in an appeal, the appellate Court has a duty to attend to it and must dispose it first before venturing into the appeal before it. See 559; E.A. INDUSTRIES LTD. v. NERFUND (2009) 8 NWLR (PT.1144) P. 535; UBA PLC V. ACB (NIG.) LTD.

(2005) 12 NWLR (PT.939) P. 232 and Abiola v. Olawuye (2006) 13 NWLR (Pt. 996) P. 1. A preliminary objection in a brief of argument is to be attended and resolved before delving in to the appeal because it may fore-close or abort the appeal in limine.

Where a preliminary objection is upheld by the Court, the appeal is to be deemed aborted or terminated in limine without necessarily determining the rights of the parties thereto, one way or the other, on the merit. see CBN v. Beekiti const. Ltd. (2011) 5 NWLR (Pt. 1240) P. 203 @ 222: Odunze v. Nwosu (2007) 13 NWLR (Pt. 1050) P. 1; ANPP v. RE. C. Akwa lbom State (2008) 8 NWLR (Pt. 1080) P. 453.

The respondent’s Notice of preliminary objection was filed on the 28th of September 2015; it is thus:
NOTICE OF PRELIMINARY OBJECTION PURSUANT TO ORDER 10 RULE 1, COURT OF APPEAL RULES, 2011
TAKE NOTICE that the respondent/objector will at the threshold of or the hearing of this appeal, raise by way of preliminary objection praying for an order that the appellant appeal issue number two be struck out “in limine lite on the premise that same is incompetent, the said issue not

having arisen out of any of appellants ground of appeal in this appeal.
GROUNDS OF OBJECTION
1. The issue raised under the appellant issue two in her brief of argument of 12th August 2015, does not arise from or relate to any of the appellant’s four grounds of appeal expressed in her notice of appeal at page 339 – 341 of the record of appeal.
2. The issue encompassed in the appellants said No. 2, is totally a new issue and not one canvassed at the trial Court, neither was the case at the trial Court, fought on that score.
3. The issue No. 2 of the appellant is a complete somersault of the issues canvassed at the trial Court which this Court should discountenance.
4. No leave of this Court was either sought for or obtained to raise the same as a new issue before this Ho Court.

An affidavit in support of the Notice of preliminary objection was filed, paragraphs 4 – 14 thereof are germane and are accordingly reproduced hereunder:
“4. That I know that by the records of appeal dated 14/5/2014 at pages 339-341 thereof, the appellants notice of appeal dated 26/8/2013 and contained four (4) grounds of appeal.
5. That

the appellant also filed the appellants brief dated 12/8/2015 raising two issues for determination of this Court.
6. That I have studied and digested the said four grounds of appeal as well as the appellants said two issues for determination of this appeal.
7. That the appellants issue No. 2 in the brief of argument neither flows from nor take its root from any of the appellants ground of appeal nor does it relate in any way to the said grounds of appeal.
8. That the said issue No. 2 raises issues which were neither contested nor canvassed at the trial Court and which issues were never joined at the trial by the parties in this appeal.
9. That the said issue constitute fresh or new issues for which leave of this Court is neither sought nor obtained in this Court.
10. That the said issue constitutes a change of premise of the appellants argument at the trial Court.
11.That the issue No.2 afore said is incompetently before this Court.
12. That the objector has accordingly proffered his objections in the respondent’s brief of argument filed along herewith.
13. That is in the overall interest of justice to grant the

objects application.
14. That the objector has accordingly filed his notice of objection encompassing the above grounds, in the respondent’s brief of argument filed along with this notice.”

Learned counsel to the respondent argued the preliminary objection on pages 2 -4 of the brief of argument. The gist of his argument is that:
Learned counsel cited and relied on several decided cases to buttress his submissions supra, and concluded by urging the Court to apply the principles of law enunciated in these authorities to the objection of the respondent and sustain same, with the consequent order of striking it out. Learned counsel to the appellant responded to the preliminary objection and the argument canvassed on pages 2 – 7 of the Reply brief. counsel contended that the notice of preliminary objection of the respondent is misconceived, therefore incompetent, in that even if it is sustained, the a appeal will not be rendered incompetence for there is one issue to sustain the appeal. Counsel cited and relied on the case of NEPA v. Ango (2005) 15 NWLR (Pt. 737) P. 627 @ 645. Counsel therefore urged the Court to strike out the preliminary

objection for being incompetent.

I agree with learned counsel to the respondent that even if issue 2 is incompetent and struck out accordingly, the appeal cannot be incompetent for there is issue one (1) which can still sustain the appeal. However, I do not subscribe to the contention of learned counsel that the preliminary objection is misconceived and therefore incompetent. The learned counsel to the appellant went on to respond to the argument of counsel to the respondent on pages 3-7 of the Reply brief. The gist of his argument is that:
“(i) Issue 2 of the issues for determination arise from grounds 1 and 2 of the grounds appeal.
(ii). The facts in support of issue were variously pleaded and issues joined on them.
(iii). The appellants complain on issue two is based on the wrong inference drawn from pleaded facts and the wrong legal result of the facts on record.”

The law is trite, every issue for determination must be formulated from one or more grounds of appeal and any issue which does not arise from a ground of appeal is incompetent. such issue is irrelevant to the appeal and would therefore be discountenanced by the

Court. Osinupebi v. Saidu (1982) 7 SC 104; Government of Gongola state v. Tukur (1987) 2 NWLR (Pt. 56) 308; Western steel works Ltd. v. Iron & Steel workers union (No. 2) 1987) 1 NWLR (Pt. 49) 284. See Dada v. Dasunmu supra P, 156 – 157.”

I have considered issue 2 vis-a-vis ground 2 of the Notice and grounds of appeal. The said issue is adequately covered by ground 2 of the grounds of appeal. consequently, the preliminary objection of the respondent to the competency of issue 2 is not sustained. Same is dismissed.

There are 2 issues formulated as contained on page 2 of the appellants brief of argument. The respondent formulated a sole issue on page 6 of his brief argument. Issue 1 of the appellant and issue 2 of the respondent are not dissimilar. Therefore, the issues for determination in the appeal are these:
“whether the Respondent has established his claim that he contributed the sum of N2.2 Million or any sum at all towards the purchase of No. 2 Algeria Crescent, Barnawa, Kaduna.
Assuming but not conceding that the respondent made any Contribution to the purchase of No.2 Algeria Crescent, Barnawa, Kaduna whether he (the

respondent) is entitled to the refund of such contribution.”

RESOLUTION OF ISSUES
The 2 issues are hereunder taken and resolved seriatim.

I agree with learned counsel to the respondent that no issue have been distilled from grounds 3 and 4 of the grounds of appeal. The law is trite, where no issue has been distilled from any ground of appeal, same is to be struck out for having been abandoned. SeeEmespo v. Cordna (2000) 5 SCNJ p. 17 @ 26. Grounds 3 and 4 of the Notice and grounds of appeal are hereby stuck out.

ISSUE 1
Asogwa Esq. of learned counsel to the appellant contended that for the respondent to be entitled to the sum of N2.2 Million as awarded by the lower Court, he must adduce cogent and reliable evidence that he contributed same towards the purchase of house No. 2 Algeria Crescent, Barnawa, Kaduna. That his contribution must be mathematically calculated to sum up or add up to N2.2 Million, being a special claim in nature, which must be pleaded and proved strictly. The cases of Unipetrol Nig. Ltd v. Adireje west Africa Ltd (2004) All FWLR (Pt. 231) P. 1238 @ 1288 and Okin Biscuits Ltd & Anor v. Chief Oshe (2004) All FWLR

(Pt. 188) p. 1094 @ 1116 were cited and relied on to buttress the submission supra. It has been contended that by paragraph 14 vii, viii, and ix the claim of the respondent being his contribution to the purchase of the house, are predicated on various heads or sub-heads constituting a different relief requiring different evidence to establish same. However, it has been contended, the learned judge of the lower Court lumped all the items of the different heads of claim without evaluating the evidence adduced in respect of each in arriving at a decision. counsel pointed out that a trial Court has a duty to evaluate the evidence adduced in respect of different or separate claim in order to arrived at a decision, but, the lower Court failed to do so. The case of Oyekola v. Ajibade & Ors. (2005) All FWLR (Pt.242) P. 436 @ 454 cited in aid.

Counsel further submitted that the learned trial judge of the lower Court failed in his duty to evaluate the evidence properly by demonstrating how he preferred one set of evidence than the other, and finally arrived at a decision in favour of the respondent. The cases of Oduwole v. Aina (2001) 17 NWLR (Pt. 74) P. 1;

Onwuka v. Ediola (1989) 1 NWLR (Pt. 96) P. 182 and Akintola v. Balugun (2000 1 NWLR (Pt. 642) p. 532 cited and relied on to reinforce the submission supra. On Exhibits 5, 6 and 9, counsel contended that the lower Court did not properly evaluate their evidential value vis-a-vis the oral evidence of the parties, since documentary evidence is the hanger from which oral evidence is assessed. The case of Nigerian Merchant Bank v. Garba (2013) All FWLR (pt. 688) p. 1004 @ 1019 cited and relied on to buttress the submission supra. That having regard to Exhibits 5, 6, and 9 the learned Judge of the lower Court erred in law when he preferred the evidence of the respondent on the funding of the purchase of house No. 2 Algeria Crescent, the subject-matter of the dispute between the appellant and the respondent.

Concluding, learned counsel adumbrated that the learned trial Judge was wrong when he awarded N2.2 Million to the respondent; because:
“(i) Having due regard to the foregoing the decision of the lower Court that the respondent is entitled to the sum of N2.2 Million as his contribution to the purchase of house No. 2 Algeria Crescent, Barnawa, Kaduna, is

Perverse.
(ii) The respondent did not allege that he gave the respondent a loan or any refundable grant. The contribution he made (if any) is for the purchase of a matrimonial home, a home still being occupied by his own children.
(iii) The respondent variously described No. 2 Algeria Crescent as the parties’s matrimonial home. It is not a commercial premise and does not yield any income.
(iv) That even if No. 2 Algeria Crescent was solely owned by the respondent he is not entitled to any refund since he has a duty to provide a home for his children.
(v) That the decision of the Hon. Trial Judge that the respondent be refunded the sum of N2.2 as the contribution he made towards the purchase of No. 2 Algeria Crescent, the parties matrimonial home has no basis in law and facts.”

Counsel, urged the Court to resolved issue 1 in favour of the appellant, and allow the appeal.

For the respondent, Akpovwa Esq., in his argument canvassed on pages 6 to 25 of the brief of argument contended that the learned trial judge of the lower Court was right in his decision when he awarded the sum of N2.2 Million to the respondent being what he

contributed towards the purchase or acquisition of house, No. 2 Algeria crescent, Baranawa, Kaduna,. That in arriving at his decision, the learned trial Judge adequately and properly evaluated the evidence adduced by the parties, and ascribed probative value thereto, as required by law, before preferring the evidence of the respondent which warranted the granting of the reliefs sought by the respondent in his cross-petition. The gist of the argument canvassed by learned counsel is that:
“(i) There was the direct evidence of the respondent of the sums he contributed, how much he contributed, the circumstances of such contribution at a time when the urge to lie or mislead the trial Court was not there.
(ii) There was also the evidence of DW2, negating the evidence of the appellants sole ownership of the NAFDAC property to the effect that the said property was jointly owned by the parties in this appeal.
(iii) The trial Court properly analyzed the evidence of the respondent regarding the said contributions of the respondent and came up with appropriate findings of facts.
(iv) The evidence of the respondent’s contributions were duly believed

by the trial Court who was privileged to see, hear and observe the witnesses at the trial.
(v) The evidence of the respondent regarding the said contributions were never controverted other than bare denial by the appellant and giving the lower Court no option but to believe them.”

Concluding, learned counsel urged the Court to resolve issue 1 against the appellant.

The basis of the respondent’s claim to the sum of N2.2 Million as his contribution to the purchase of the matrimonial house No. 2 Algeria Crescent, Kaduna are the averments contained in paragraph 14 (vii), (viii) and (ix) of the Answer to the petition and cross-petition, which are reproduced hereunder:
“(vii) The respondent then raised the sum of N2.2M from the sale of their former property, plus N300,000.00 from the sale of his Mercedes Benz Faker, and other sums from the sale of his shares with the petitioner, not valued less than N200,000.00 and which was paid into an account with UBA, as a counterpart funding of N8M, and UBA then undertook the finance of the purchase of the property on the following condition:- (i) The property would be purchased in the name of their

staff, the Petitioner. (ii) the property would be deposited with the bank as a security for full repayment until the loan is amortized to the bank all of which conditions the parties mutually agreed to.
(viii) The aforementioned loan, has since been retired in the following manner, by monthly deductions from her salary, while on the respondent part he contributed the monthly sum of N50,000.00 through the petitioner for not less than 10 months amounting to N500,000.00 towards liquidating the loan from UBA for their new home, while the rest were settled by the petitioner, The title documents have since been released to the petitioner.
(ix) On the whole, the respondent, expended the total sum of Two Million, Two Hundred Thousand Naira only (N2,200,000.00) calculated from the above contributions as his input and contribution towards the purchase of their home.
The above pleadings are the contributions allegedly made by the respondent towards the purchase of No. 2 Algeria Crescent.”

The appellant, in her paragraph 12(a-i) of the Answer to the cross petition denied the claim of the respondent; and averred as follows:
“(a) That No. 2 Algerian

Crescent, Barnawa Kaduna is the petitioner’s property and same is not owned in conjunction with the respondent or any other person as the petitioner single handedly financed its purchase.
(b)That the petitioner single handedly provided the money with which the property situate at NAFDAC area, Narayi Kaduna was purchased and that the respondent did not make any contribution to the purchase.
(c) That the petitioner on her own and without the respondent’s participation or input sold the property situate at NAFDAC area to one Akpereva Patrick in the sum of N2M and not the sum of N2.2 as alleged by the respondent.
The cheque issued by the said Akpereva Patrick to the petitioner is hereby pleaded.
(d) That the respondent did not put any money realized from the sale of his Mercedes Benz Faker vehicle or any money at all on No. 2 Algerian Crescent.
(e) The Petitioner says that the respondent sold the said vehicle without the petitioners knowledge notwithstanding the fact that it was the petitioner who transferred the sum of N2,200,000.00 into the account of the respondent to enable the respondent buy off the vehicle from his employers.<br< p=””>

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(f) The petitioner says that contrary to the respondent’s allegation in paragraph 14 ii of the cross petition No. 2 Algeria Crescent was purchased for the sum of NIBM and not over N19 as alleged by the respondent.
The petitioner shall at the trial rely on the following documents.
(j) An offer for the sales of No. 2 Algeria Crescent Barnawa by Adeoye O. A. to the petitioner.
(iv) A deed of Assignment between Mr. O. A. Adeoye and the Petitioner as evidence that the petitioner paid the purchase price to the said O. A. Adeoye.
(v) A UBA draft for N18M in favour Mr. Adeoye Oluwole Ayerinde dated the 25th day of May 2007.
(g) That the petitioner sourced the sum of N18M she used in paying for No, 2 Algeria Crescent as follows:
(i) A loan of N13.5M from UBA Plc
(ii) A loan of N3M from Intercontinental Bank Plc
(iii) The sum of N1.5M from the petitioner’s personal savings.
The petitioner hereby pleads the following documents:-
(i) A letter of offer for mortgage facility from UBA Plc dated May 23 2007,
(ii) A letter of Offer of Intercontinental Bank happy life personal loan dated May, 7 2007.
(h)That no shares

belonging to the respondent has been in the petitioner’s possession nor did the petitioner sell any such shares nor was any proceeds paid to the petitioner’s account
as alleged by the respondent.
(i)That the respondent contributed nothing towards the offsetting of the loan obtained from both banks and also contributed nothing towards the purchase of No, 2 Algeria Crescent Barnawa, Kaduna. ”

I am in full agreement with learned counsel to the appellant that the claim of N 2.2 Million by the respondent is of a special nature which must be pleaded and proved strictly. See Unipetrol (Nig) Plc v. Adireje West Africa Ltd (2004) ALL FWLR (pt.231) page 1238 @ 1288 and Okin Biscuits Ltd V Chief E. Oshe (2004) All FWLR (Pt. 188) P. 1094 @ 1116. Learned counsel further contended that the learned trial judge of the lower Court lumped all the items of claim without analyzing or evaluating the evidence in support of each item of claim which made up the total sum of N2.2 Million being the claim of the respondent. The question as to what is strict proof has been settled in a litany of decisions of the superior Courts, i.e the Supreme Court and this Court. For

instance inWest African Shipping Agency Ltd vs. Alhaji Kalla (1978) 3 S.C P. 21, ESO, J.S.C held that:
strict proof in the context of special damages can mean no more than such proof as would readily tend itself to quantification or assessment
In Okulaja v. Haddad (1973) 11 S.C. 357 @ 362, the Supreme Court held that if a witness who has peculiar knowledge of facts of special damages gives or proffers evidence and the evidence is not controverted, such evidence amount to strict proof. See also Ediko (Nig) Ltd v. UBA Plc (2000) FWLR (Pt. 21) P. 829 @ 830 and Osayemwenre Amayu v. O.E. Gbovo (2006) 5 SCNJ P.1.

In order to arrive at a decision whether the learned trial judge of the lower Court evaluated the evidence adduced by the appellant and the respondent and why he ascribed probative to that of the respondent rather than the appellant, it is pertinent to refer to their testimonies in their depositions on oath and oral testimony. It is also necessary to see if the learned trial judge arrived at a just decision after evaluating the evidence and the ascription of probation value thereto.

The depositions on oath of the appellant

are on pages 63 to 66 of the record of appeal. Her oral testimony has been recorded on pages 201 to 208. The gist of her depositions on oath and the oral testimony is that:
“i. No.2 Algeria Crescent Barnawa, Kaduna is her property, not owned in conjunction with the respondent.
ii. She singly handedly raised the money for the house in NAFDAC Area C (Narayi) and the money realised from the disposal of it, was used in purchasing the house subject of the dispute in the petition at the lower Court, now on appeal to this Court
iii, She sourced the money which was used to purchase the house No.2 Algeria Crescent, Kaduna, by taking loans from UBA Plc, Intercontinental Bank Plc and the sum of #1.5 Million personal savings.
iv. She relied on documents to support her claim, which are, letter of offer for mortgage facility of UBA Plc of 23/5/2007; letter of offer from the Intercontinental Bank of 7/15/2007.
v. That she did not possess the shares belonging to the respondent nor was any money paid into her account by the respondent from the sell of shares.
vi. The respondent did not contribute to the off- setting of the loans from the Banks.<br< p=””>

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The respondent’s depositions on oath is on pages 49 to 58 of the record of appeal. His oral testimony is on pages 223 to 243 of the record of appeal. The gist of the depositions on oath and the oral testimony of the respondent is that:
“a. The respondent pleaded and gave evidence of the joint ownership of the NAFDAC property. See respondent rejoinder witness deposition paragraph 2 and 3 of the pages 129 of the record of proceedings.
b. The undisputed evidence of DW2 – Mr. Makadas at pages 258 265 of the records to the effect that the parties in this appeal i.e. Mr. and Mrs Edmond Kakulu are the joint owners of the property at NAFDAC Area, Kaduna.
c. The appellant was given notice to produce the sale agreement for the property, in her possession which she failed to do, and thus entitling the respondent to proffer secondary evidence of the contents of the said agreement of sale.
d. The evidence of joint ownership of the parties was not controverted by the appellant, all through the trial.
e. Lastly, the above piece of evidence of the respondent and DW2, were believed by the trial Court.”

DW 2, Jacob Makadas, of the Ministry

of Land and Survey gave evidence in respect of the property in NAFDAC Area, which was sold and utilised to acquire House No. 2 Algeria Crescent, Barnawa, Kaduna, the witness testified that:
“The property was owned by one Alh. Musa Ibrahim.
He has a Certificate No. KD11870. He called my attention to sub-divide the property which I did.
And one of those who applied to buy a portion of it is Mr & Mrs Edmond Kakulu.
Did you eventually sell the property to them?
Yes.
After the sale, what happened?
After the sale, the paper of Agreement was given to him and one was with the owner of the land as I was acting as an Agent to the owner of the land, Alhaji Musa (The Vendor).
The Agreement you talked about do you have a copy of it?
I looked for the copy I had, but I have not been about to trace it since Edmond spoke to me about the case in Court.
So, in summary, Mr. & Mrs. Edmond were the ones that bought the Property from You?
Yes.”

Learned Counsel to the appellant contended that the learned judge of the lower Court did not evaluate the evidence adduced by the appellant and the respondent, nor did she

ascribed probative value thereto, before preferring the evidence of the respondent than that of the appellant in arriving at her decision granting the relief sought by the respondent, that is, making the order that he be refunded N 2.2 Million which he contributed towards the purchase of No. 2 Algeria Crescent, Barnawa, Kaduna.

The law is trite, a trial Court has the duty to evaluate the evidence adduced before it and ascribe probative thereto in deciding or preferring which evidence is credible, and which evidence is unreliable, before taking a decision on any matter in dispute. On the duff of a trial Court to evaluate evidence, ESO, JSC (of blessed memory) had this to say in the case of Chief Frank Ebba v. Ogodo LC 499 @ 507 – 508:
“Indeed, it was the duty of the trial Court to assess witness, form impressions about them and evaluate their evidence in the light of the impression which the Court forms of them. That is one reason why the trial Court is named a “trial Court”. It is the trial Court and hence a Court of appeal should attach the greatest weight to the opinion of the trial judge that has the duty to see and indeed in the case, has seen

the witnesses and also heard their evidence”
The proper approach to the evaluation of evidence and ascription of probative value to the evidence adduced has been enunciated in the case of Otaigbe vs. B.C.C Ltd (2014) All FWLR (Pt. 747) P. 707 thus:
“Thus the totality of the evidence led in the action by both sides are put on an imagination scale and weighed together, That is the admissible and relevant evidence of the Plaintiff and also the defence, are put on each side of the scale respectively and weighed together in order to determine whose evidence weighed are or is heavier than the other… this will not depend upon the number and quantity of witness for either side but by the QUALITY of probative value of their Piece of evidence.”
Therefore, in evaluating any piece of evidence placed before it by parties, a Court of law is duty bound to consider the totality of the evidence led by each of the parties, it shall then place it on the imaginary scale of justice to see which of the two sides weighs more creditably than the other. Thus, evaluation of evidence entails the assessment of same so as to give value or quality to it. Evaluation of

evidence by a trial Court should necessarily involved a reasoned belief of the evidence of one of the contending parties and disbelief of the other or a reasoned preference of one version to the other. See Lagga v. sarhuma (2008) 16 NWLR (Pt. 1114) P. 427 @ 460.

On page 276 to 289 of the printed record of appeal, the learned trial judge reviewed the evidence adduced by the appellant and the respondent. He then evaluated same and after ascribing probative value thereto, he thereafter preferred the evidence of the respondent than that of the appellant and arrived at his decision on page 290 of the record thus:
“I have taken the time to so analyze his claim for N2, 200, 000.00 because it is my considered view that he deserves to be reimbursed the money he put into the purchase of their matrimonial home.
Paragraph 20(x) of the Respondent’s Deposition dated 26th September, 2011 give a clear picture of his Predicament. It states:-
“That in a sudden twist of marital events, the Respondent now has no home of his own and is in dire need of one having been caused by the Petitioner to unceremoniously leave his matrimonial home.”
It is

only fair therefore that the Respondent should be reimbursed the amount he put into the purchase of their matrimonial home, which claim the Petitioner could not rebut.
I accordingly find and hold therefore, that the Respondent did contribute to the purchase of the Property at No.2 Algeria Crescent Barnawa, Kaduna. His claim for the sum of N2, 200, 000.00 accordingly succeeds and I grant him same against the Petitioner.”

Where a trial Court has evaluated the evidence, ascribed probative value thereto and arrived at findings of facts on which a decision had been taken properly, an appellate Court has no business to interfere with such findings and decision. See Badi v. Asyo (2002) 3 NWLR (Pt. 846) p. 305 @ 335, where the Court held that an appellate Court is always reluctant to disturb or interfere with the evaluation of evidence and findings of the trial except in the following instances:
a. Where there is a failure on the part of trial Court to make proper use of its opportunity or advantage and thereby arrived at a perverse decision especially where the said decision was not based on the credibility of the witnesses; or
b. where

the trial Court fails to make finding of fact on a material or important issue or issues canvassed before it by the parties in its evaluation of evidence; or
c.Where the trial Court gives an unfair treatment on the evidence of the parties before it. flee NEPA v. Archida (2000) 7 NWLR (Pt 979) P, 245 @ 272.

An appellate Court will not interfere with a trial Court’s findings of fact where the findings are borne out of the evidence before the trial Court. An appellate Court will interfere with the findings of a trial Court only when such findings have been made on legally inadmissible evidence or they are perverse or are not based on any evidence before the Court. Iyaro v. state (1988) 1 NWLR (Pt. 69) 256; Nwachukwu v. Egbuchu (1990) 3 NWLR (pt.136) 435. Where the trial Court failed to make a satisfactory evaluation of evidence before it, other than on the question of credibility of witnesses, it is the duty of the appellate Court to re-evaluate such evidence and make proper findings of fact. Umesie v. Onuaguluchi (1995) 9 NWLR (Pt. 421) 515; Bunge v. Gov. Rivers State (2006) 12 NWLR (Pt. 995) 573.

The findings of facts, evaluation of evidence and

ascription of probative to the evidence adduced, and the decision arrived at by the trial Court can only be interfered with or disturb by an appellate Court, when same is perverse. In Buhari v. INEC (2009) All FWLR (Pt. 459) (2009) 7 WRN L @ 174), the Supreme Court held that:
A perverse judgment is a wrong, unreasonable or unacceptable finding, having regard to the evidence before the Court.
A perverse finding is one not supported by evidence before the Court. It is a finding raised on wrong assessment of the evidence before the Court.
A finding of fact based on exaggerated or bloated evidence on the part of the trial Court, could be perverse. So too, finding of facts borne out of addition or subtraction from the evidence before the Court.

The evidence of the respondent in his deposition on oath as well as the oral testimony, coupled with the evidence of DW2 which can be found on P. 258 -9 of the record are credible and reliable as found by the learned trial Judge of the lower Court. The appellant failed to controvert the evidence adduced by the respondent on his contribution to the acquisition of No. 2 Algeria Crescent,

Barnawa Kaduna. The learned trial Judge rightly relied on same in arriving at his decision whereby the relief sought by the respondent was granted, and accordingly, the appellant was ordered to reimburse him the sum of N2.2M being his contribution to the acquisition or procurement of the house, aforementioned. Consequently, I resolve issue 1 against the appellant, that is, the lower Court was right in law when it ordered the appellant to reimburse the respondent the sum of N2.2M, being his contribution to the acquisition of House No. 2 Algeria Crescent, Barnawa, Kaduna.

ISSUE 2
Is the respondent not entitled to be reimbursed the sum of N2.2Million, since issue 1 has been resolved in his favour? Asogwa Esq., contended that the appellant and the children of the marriage are living in the house. That the respondent has a duty to take care of the children, especially their accommodation, maintenance, education and well-being.
That in view of the foregoing the respondent cannot be entitled the N2.2M which he contributed towards the acquisition at House No. 2 Algeria Crescent Barnawa, Kaduna. For the respondent, Akpovwa Esq. submitted that provision

of accommodation, education, and the overall welfare of the children of the marriage are different issues from the claim of N2.2M claimed by the respondent. Counsel argued that, having contributed to the acquisition of the house, he is entitled to that sum of money, in view of the judgment of the lower Court, the effect of which is that the respondent no longer has any right over same.

After evaluating the evidence adduced by the appellant and the respondent, the learned trial Judge held as follows on page 290 of the record of appeal:
I have taken the time to so analyze his claim for N2,200,000.00 because it is my considered view that he deserves to be reimbursed the money he put into the purchase of their matrimonial home. Paragraph 20(x) of the respondent’s Deposition dated 26th September, 2011 gives a clear picture of his Predicament. It states:
“That in a sudden twist of marital events, the respondent now has not home of his own and is in dire need of one having been caused by the petitioner to unceremoniously leave his matrimonial home”.
It is only fair therefore that the respondent should be reimbursed the amount he put into

the purchase of their matrimonial home, which claim the petitioner could not rebut.
I accordingly find and hold therefore, that the respondent did contribute to the purchase of the property at No.2, Algeria Crescent Barnawa, Kaduna. His claim for the sum of N2,200,000.00 accordingly succeeds and I grant him same against the Petitioner.”

The award of the sum of N2.2M is consequent to awarding the house No. 2 Algeria Crescent to the appellant as her property. The respondent in his cross-petition made it as his claim having contributed to the acquisition of the house. The lower Court was therefore right in granting the respondents claim of N2.2M. Issue 2 is resolved against the appellant. In the result the appeal fails. Same is dismissed. The judgment of the lower Court in suit No. KDH/KAD/837/2011 delivered on the 21st Day of August, 2013, is hereby affirmed.

AMINA AUDI WAMBAI, J.C.A.: I was obliged before now, the draft copy of the Judgment just delivered by my learned brother, IBRAHIM SHATA BDLIYA, JCA.
He has resolved all the silent issues in this appeal. I endorse his reasoning and conclusion as mine.

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I only wish to emphasize and reiterate the very prestigious role and duty of a trial Court with respect to evaluation of evidence. It is now a settled and appreciable principle of our Law that evaluation of evidence and findings of facts thereon are within the province and exclusive domain of the trial Court. It is the exclusive preserve of the trial Court to evaluate evidence presented before it and ascribe probative value to the evidence. The trial Judge does this by receiving all the evidence presented before it and then assesses the received evidence to ascribe value to it. Explaining this duty of the trial Court, Oputa JSC in OLUFOSOYE V. OLUFEMI (1959) 1 SC (Pt. 1) 29 said:-
“There is a duty on a trial Court to receive all available evidence on an issue. This is perception of evidence. After that, there is another duty to weigh that evidence in the context of the surrounding circumstances of the case. This is evaluation of evidence”.

Evaluation of evidence entails and demands that the evidence adduced by both parties be assessed and weighed so as to give probative value or quality to it, and there must be on record how the Court arrived at

its choice of preference of one piece of evidence to the other. ALAKE V. STATE (1992) 9 NWLR (PT. 265) 260 SC, ATTAH V. STATE (2009) 15 NWLR (Pt. 1164) 284 (CA). Evaluation involves reviewing and criticizing as well as estimating the evidence BASIL V. FAJEBE (2001) 1 NWLR (Pt. 725) 592, MOGAJI V. ODOFIN ( 1978) 4 SC 91, and it is by this process of assessment of evidence and ascription of value to same that the Court can arrive at the proper decision of who to believe and who to disbelieve or a reasoned preference of one piece or version of evidence to the other.

It is also settled law that where as in this appeal the trial Court has unquestionably performed its function and has satisfactorily evaluated the evidence before it, it is not for the appellate Court to evaluate the same evidence and come to its own decision except where the findings or conclusions arrived at are perverse or wrong inferences were drawn or made on accepted facts or wrong principles have been applied to the facts. OSUJI V. EKEOCHA (2009) 16 NWLR (Pt. 1166) 81 8C, THOMPSON V. AROWOLO (2003) 7 NWLR (Pt. 818) 163.

I therefore find no need to interfere with or disturb the

findings and conclusion reached by the learned trial Judge. Resultantly, the appeal is starved of any merit and deserves to be and is accordingly dismissed by me.

The Judgment of the lower Court and the Orders therein contained are hereby affirmed.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (DISSENTING): I have had the privilege of reading before now the lead judgment delivered by my learned brother, Ibrahim Shata Bdliya, JCA. I must say, with all deference, that I am unable to agree with the reasoning and conclusions reached in the lead judgment. I am compelled to write dissenting views.

This appeal is against the judgment of the High Court of Kaduna State in Suit No KDH/KAD/837/2011 delivered by Honorable Justice Rahila Hadea Cudjoe on the 21st of August, 2013. The appeal arose out of a matrimonial proceeding and it was commenced by the Appellant, the wife, against the Respondent, the husband. The Appellant prayed for the dissolution of the marriage contracted between her and the Respondent and for custody of the four children of the marriage. The Respondent filed an answer and cross-petition wherein he claimed, in

part, that the Appellant should reimburse him the sum of N2.2 Million being his financial contribution to the purchase of the matrimonial home at No 2, , Algeria Crescent, Barnawa, Kaduna, wherein the Appellant and the four children of the marriage resided.

The matter proceeded to trial and at the conclusion of which the lower Court entered judgment dissolving the marriage, granting custody of the four children of the marriage to the Appellant and directing the Appellant to reimburse to the Respondent the sum of N2.2 Million as his financial contribution to the purchase of the matrimonial home. The Appellant was dissatisfied with the part of the judgment directing her to pay the sum of N2.2 Million to the Respondent as reimbursement and she caused a notice of appeal dated the 26th of August 2013 to be filed against it and the notice of appeal contained four grounds of appeal.

In ventilating the grievances of the Appellant against the judgment of the lower Court, her Counsel filed a brief of arguments dated the 12th of August, 2015. In response thereto, Counsel to the Respondent filed a brief of arguments dated the 22nd of September 2015 on the 28th

of September 2015 and the brief of arguments was deemed properly filed on the 23rd of November 2015. Counsel to the Appellant filed a reply brief of arguments dated the 2nd of December, 2015. At the hearing of the appeal, Counsel to the parties relied on and adopted the arguments contained in their respective briefs of arguments as their oral submissions in the appeal. I wish to note that the Respondent filed a notice of preliminary objection on the 28th of September, 2015 and in support of which he proffered arguments in the Respondent’s brief of arguments. The Appellant responded to those arguments in the reply brief. The notice of preliminary objection was resolved in the lead judgment and I agree with the resolution and do not see the need to reconsider the preliminary objection herein.

Counsel to the Appellant formulated two issues for determination in this appeal and these were:
i. Whether the Respondent established his claim that he contributed the sum of N2.2 Million or any sum at all towards the purchase of No. 2, Algeria Crescent, Barnawa, Kaduna.
ii. Assuming but not conceding that the Respondent made any such contribution to the

purchase of No. 2, Algeria Crescent, Barnawa, Kaduna, whether he was entitled to the refund of such contribution.

On his part, Counsel to the Respondent formulated one issue for determination in the appeal and it was:
Whether on the totality of the evidence adduced and believed by the trial Court and its findings thereon, the Respondent has not proven his contribution of the sum of N2.2 Million or any sum at all to the purchase of the family property at No. 2, Algeria Crescent, Barnawa, Kaduna.

The arguments of both the Counsel to the Appellant and of the Counsel to the Respondent on the issues for determination they formulated have been adequately summarized in the lead judgment and need no repetition in this judgment. Suffice to say that the complaints of the Appellant touched on the evaluation carried out by the lower Court of the evidence led by the parties on the case made out by the parties in their respective pleadings on the claim of the Respondent for the refund of N2.2 Million.

It is settled that a trial Court has two duties in respect of the evidence led by parties in a trial. The first is to receive into its records all the

relevant evidence, and this is called perception. The second is to thereafter weigh the evidence in the context of the surrounding circumstances, and this is evaluation. A finding of fact by a trial Court involves both perception and evaluation – Guardian Newspapers Ltd Vs Ajeh (2011) 10 NWLR (Pt 1256) 574, Nacenn Nigeria Ltd Vs Bewac Automotive Producers Ltd (2011) 11 NWLR Pt.1257) 1.93,Ubierho Vs Owunwanne (2011) 14 NWLR (Pt.1266) 1.

It is the primary responsibility of a trial Court to evaluate the evidence presented by parties before it, ascribe probative value to the evidence and then come up with a decision. Evaluation of evidence entails the assessment of evidence so as to give value and quality to it. It involves a reasoned belief of the evidence of one of the contending parties and disbelief of the other or a reasoned preference of one version to the other. There must be on record how the Court arrived at its conclusion of preferring one piece of evidence to the other -Idakwo Vs Nigerian Army (2004) 2 NWLR (Pt 857) 249,Oyekola Vs Ajibade (2004) 17 NWLR (Pt 902) 356, Imoh Vs Onanuga (2013) 15 NWLR @t 1376) 1.39 and Al-Mustapha Vs State (2013) 17

NWLR (Pt 1383) 350.

In dealing with the claim of the Respondent for refund of the sum of N2.2 Million, the lower Court stated in the judgment thus:
“… the Respondent has deposed in his Deposition that he contributed to the purchase of their matrimonial home at No. 2, Algeria Crescent, Barnawa, Kaduna. I refer to paragraph 20 of his Deposition dated 25th September, 2011 which was adopted as his testimony in Court. In paragraph 20 (iii), vii and viii) he gave a computation of the amounts of money he contributed. The amounts are as follows:
a. N2,200,000.00 from the sale of their former joint property.
b. N300,000.00 from the sale of his Mercedes Benz faker.
c. N200,000.00 from the sale of his shares with the Petitioner
d. N500,000.00 from his N50,000.00 monthly contributions for ten months.
After this computation, which should come to a total of N3,200,000.00, he stated in paragraph 20 (ix) that he expended the sum of N2,200,000.00 as his input and contribution towards the purchase of their matrimonial home.
The Petitioner in her Deposition in support of her Reply to the Respondent’s Answer/Cross Petition dated 11th

November, 2011, denied that he contributed to the purchase of the matrimonial home and gave her own explanation as to how the property was purchased as indicated in paragraph 10 of that deposition. In a nutshell the sum total of paragraph 10 is that she single handedly purchased the house at No 2, Algeria Crescent, Barnawa, Kaduna.
However a careful analysis of his Deposition vis-a-vis her Deposition, together with their oral testimony in Court lend more credence to the testimony of the Respondent than that of the Petitioner. He clearly stated while testifying orally before the Court, in addition to his Deposition, that the property situated at NAFDAC area belonged to them both and that he supervised the building up to lintel level before it was sold to raise part of the money for No 2, Algeria Crescent, Barnawa, Kaduna. Furthermore, DW2, the agent of the vendor testified before the Court that he acted as the agent of that property when it was sold to Mr. & Mrs. Edmund Kakulu, that is, the Petitioner and the Respondent.
… The Respondent also buttressed his deposition on the property at NAFDAC area through his oral testimony in Court when he

told the Court that the property was not purchased as a built up property but as bare land, the construction of which, he personally supervised.
It was also the testimony of the Respondent that the purchase of No 2, Algeria Crescent, Barnawa, Kaduna was concluded by him and the Petitioner as purchasers and Mr. and Mrs. Adeoye as vendors. The Respondent in his oral testimony denied knowing about Exhibit 9 – the Deed of Assignment tendered by the Petitioner. He told the Court that she went away with the documents they signed with the vendors, Mr. & Mrs. Adeoye, in Abuja. He had earlier on testified that she kept all their important family documents which she did not controvert. His oral testimony was after the written Deposition. She did not thereafter controvert his oral testimony in Court.” (see pages 285 to 288 of the records)

The lower Court continued thus:
“I have studied the countenance of both parties as they testified in Court and it is my considered view that the Respondent is more a witness of truth than the Petitioner. It is also worthy of mention that the Respondent is not even asking to be given half the purchase price of the

property as No. 2, Algeria Crescent, Barnawa, Kaduna, which even the Petitioner put at N18,000,000.00 … but only N2,200,000.00 which he told the Court was his contribution towards the purchase of the property. Paragraph 20 (ix) of his Deposition refers. There is also evidence before the Court that the Petitioner even offered to pay rent for the Respondent after he moved out of their matrimonial home. Exhibit D2 refers. I wonder why she is offering to pay rent for him, if he is not a co owner of their matrimonial home. A computation of his contribution to that matrimonial home which he put at N2,200,000.00 in paragraph 20 (ix) and not N3,200,000.00 as analysed earlier on in this judgment, clearly shows that he did not even ask that all the N2,200,000.00 raised from the sale of the jointly owned property near NAFDAC should be taken as part of his own contribution. I say so because if that were his claim, then he would have claimed N3,200,000.00 … Still on the veracity of the parties, the Petitioner even contradicted her own testimony in chief about the Respondent not supporting the family when she said under cross examination that when he could not support

the family he used to beat her up and at times threatened to kill her. This certainly indicated that he did support the family at some point which was not her evidence in chief as per her Depositions.” (see pages 288 to 289 of the records)

The lower Court concluded her deliberations thus:
“I have taken the time to so analyze his claim for N2,200,000.00 because it is my considered view that he deserves to be reimbursed the money he put into the purchase of their matrimonial home. Paragraph 20 (x) of the Respondent’s Deposition dated 26th September, 2011 gives a clear picture of his predicament. It states:
‘That in a sudden twist of marital events, the Respondent now has no home of his own and is in dire need of one having being caused by the Petitioner to unceremoniously leave his matrimonial home.
It is only fair therefore that the Respondent should be reimbursed the amount he put into the purchase of their matrimonial home, which claim the Petitioner could not rebut.
I according find and hold therefore, that the Respondent did contribute to the purchase of the property at No 2, Algeria Crescent, Barnawa, Kaduna. His claim for

the sum of N2,200,000.00 accordingly succeeds and I grant him same against the Petitioner.” (see page 290 of the records)

Evaluation of evidence adduced before the Court is the exclusive preserve of the trial Court and where the records of proceedings show that a trial Court assessed the evidence produced before it and accorded probative value to them and placed them side by side on an imaginary weighing scale before coming to a conclusion and making a finding of fact on side of the evidence that tilts the scale, such a finding must be accorded due weight so long as it is not unreasonable and not perverse. In other words, an appellate Court will not interfere with the evaluation of evidence carried out by a trial Court and will not substitute its own views for that of the trial Court unless the conclusion reached from the facts is perverse – Ajibulu Vs Ajayi (2014) 2 NWLR (Pt 1392) 483, Ikumonihan Vs State (2014) 2 NWLR (Pt 1392) 564.

A decision of a Court is said to be perverse (a) when it runs counter to the evidence and pleadings; or (b) where it has been shown that the trial Court took account of matters which it ought not to have taken into

account or shut its eyes to the obvious; or (c) when such a decision has occasioned a miscarriage of justice; or (d) when the circumstance of the finding of facts in the decision are most unreasonable -Onu Vs Idu (2006) 12 NWLR (Pt 995) 657, Momoh Vs Umoru (2011) 15 NWLR (Pt1270) 217.

The question is whether the decision of the lower Court reproduced in the above excerpts of the judgment was perverse. The case of the Appellant in this appeal is that the decision of the lower Court was at variance with the evidence and pleadings and that the lower Court did not subject the claim for reimbursement to the required standard of proof for such a claim. It is also the complaint of the Appellant that the lower Court took account of matters which it ought not to have taken into account and it shut its eyes to the obvious and that the circumstance of the finding of facts in the decision was most unreasonable.

Now, it is settled law that a claim for refund of money or contribution made towards a project in a specific amount is a claim in the nature of special damages. This point was made by the Supreme Court in Obasuyi Ys Business Ventures Ltd (2000) 5 NWLR (Pt

658) 668 where Iguh, JSC, stated that where the precise amount of a particular item of claim is known or has become manifest before trial, either because it has already occurred and has thus become crystallized or because it is measurable with complete and total accuracy, this exact loss must be pleaded as special damage and strictly proved. This point is further buttressed by the statement of law that where a partly claims joint or part ownership of matrimonial property, he must plead and prove the specific nature of the contribution made or amount expended in the acquisition of the property in question in order to succeed- see the case of Rimmer Vs Rimmer (1952) 2 AD, ER 863, which was quoted with approval by the Supreme Court in Amadi Vs Nwosu (1992) 6 SCNJ 59, Coker Vs Coker (1964) LLR 188, Egunjobi Vs Egunjobi (1974) 4 ECSLR 552, and Oghoyone Vs Oghoyone (2010) LPELR-CA/L/26/2003.
It is axiomatic in our jurisprudence that a claim in the nature of special damages must be specifically pleaded with particulars and strictly proved – Agi Vs Access Bank Plc (2014) 9 NWLR (Pt 1411) 121, Union Bank of Nigeria Plc Vs Chimaeze (2014) 9 NWLR (Pt 1411) 166,

British Airways Vs Atoyebi (2014) 13 NWLR (Pt 1424) 253.
It is trite that when the law requires that particulars must be supplied in a claim in the nature of special damages, it depends on the nature and facts of each case. A clear inference of what is required can be drawn from the dictum of Cotton, LJ, in the English case of Phillips Vs Phillips (1878-79) 4 QBD 127 where he put the essence of the rule regarding particulars thus: ” … in my opinion it is absolutely essential that the pleading, not to be embarrassing to the defendants, should state those facts which will put the defendants on their guard and tell them what they will have to meet when the case comes to trial. The requirement to plead particulars of special damage is usually predicated on the question of fairness to the defendant.
These principles were re-echoed by the Supreme Court in Attorney General of Oyo State Vs Fairlakes Hotels Ltd (1989) 5 NWLR (Pt 121) 255 where Agbaje, JSC stated that the requirement to plead particulars of special damages is to “obviate any surprise to the opposite party who may not be aware of the details and circumstances from which the special

damages have arisen or the basis upon which they have been calculated or arrived at by the plaintiff who claims them based on his own precise calculation.” Thus, the starting point for a trial Court entertaining a claim in the nature of special damages is to examine the pleadings of the claimant to see if there be sufficient facts available to the defendant that would enable him meet the claim which the claimant is making against him – Royal Exchange Assurance (Nig) Plc Vs Anumnu (2003) 6 NWLR (Pt 815) 52.

The first question for consideration in this appeal, therefore, is whether the Respondent pleaded with particulars the contribution he alleged that he made to the purchase of the property at No 2, Algeria Crescent, Barnawa, Kaduna amounting to N2.2 Million. It was in paragraph 20 of the Answer and Cross Petition that the Respondent pleaded the claim for N2.2 Million. The paragraph had subparagraphs (i) to (x) and they read, in part, thus:
“(i) The property situate at No. 2, Algeria Crescent, Barnawa Kaduna, is not only the matrimonial home of the parties, but the same is jointly owned by the parties to this suit.
(ii) Hitherto, before their

moving to the present matrimonial home, the petitioner and the Respondent jointly purchased a parcel of land, which they equally jointly built up to lintel level, in the NAFDAC Area of Narayi, Kaduna until they got the offer for the sale of their present home at No 2, Algeria Crescent, Barnawa, Kaduna, for over N19M.
(iii) That in consequence of the aforesaid offer, they then sold off the property jointly owned by them in the NAFDAC area for N2.2M with a view to raising funds for the purchase of their new home at the cost of over N19M.
(iv) That in order to raise more money for the purchase, the Respondent had to sell his Mercedes Benz Faker Vehicle for N300,000.00 as well as sell his shares through the Petitioner, all of which sums were added to the sale value of the NAFDAC area property, while the Respondent agreed with the Petitioner to seek a loan from Intercontinental Bank Plc to make up to pay for the property at a cost of N19M.
(v) That by the above arrangement, the Petitioner’s employers then Messers UBA Bank would undertake counterpart funding of the purchase of the property, while the Petitioner would as principal obligor, purchase

the property in her name and secure the loan with the property, all of which the Petitioner agreed with the Respondent, to ensure that they succeeded in purchasing the property. …
(vii) That the Respondent then raised the sum of N2.2M from the sale of their former property, plus N300,000.00 from the sale of his Mercedes Benz Faker, and other sums from sale of his shares with the Petitioner, not valued less than N200,000.00 and which was paid into an account with UBA as counterpart funding of N8M, an UBA undertook the finance of the purchase of the property . . .
(viii) That the aforementioned loan has since been retired in the following manner, by monthly deductions from her salary, while on the Respondent part he contributed the monthly sum of N50,000.00 through the Petitioner for not less than 10 months, amounting to N500,000.00 towards liquidating the loan from UBA for their new home, while the rest were settled by the Petitioner.
The title documents have since been released to the Petitioner.
(ix) That on the whole, the Respondent expended the total sum of (N2,200,000.00) calculated from the above contributions as his input and

contribution towards the purchase of their current home. …”

The specific sums that the Respondent pleaded in the above paragraphs as his direct contribution to the purchase of the property at No 2, Algerian Crescent, Barnawa, Kaduna were the sums of N300,000.00 which he said he got from the sale of his Mercedes Benz Car, the sum of N200,000.00 which he said was the estimate value of his shares that he sold through the Petitioner and the sum of N500,000.00 which he said he contributed for not less than ten months towards the liquidation of the loan obtained by the Petitioner from UBA Plc. The Respondent pleaded that the sum of N2.2 Million was sourced from the sale of the property jointly owned in the NAFDAC Area by himself and the Petitioner, but he did not plead what portion of that sum belonged to him and neither did he plead the amount the property at NAFDAC Area was purchased for and the amount he contributed to the purchase price and/or his financial contribution to the structure which he said was erected on the property up to lintel level. Thus, the particulars of contribution to the purchase of the property at No 2, Algerian Crescent, Barnawa,

Kaduna that was specifically pleaded by the Respondent was N1 Million, and not N2.2 Million.

On prove of a claim in the nature of special damages, the law is that the party claiming must establish his entitlement to the claim by credible evidence of such character that would suggest he is entitled to it – Agi Vs Access Bank Plc supra, Union Bank of Nigeria Plc Vs Chimaeze supra. In Neka BBB Manufacturing Co Ltd Vs African Continental Bank Ltd (2004) 2 NWLR @t 858) 521 at 540-541, the Supreme Court explained this statement thus:
“It is trite law that where the claimant specifically alleges that he suffered special damages he must per force prove it. The method of such proof is to lay before the Court concrete evidence demonstrating in no uncertain terms easily cognizable the loss or damage he has suffered so that the opposing party and the Court as umpire would readily see and appreciate the nature of the special damages suffered and being claimed. If damage is special in the sense that it is easily discernible and quantified, it should not cast on a possible conception or notion which would give rise to speculation, approximation or estimate or such

fractions.
What will pass as concrete and credible evidence depends on the facts of each case. Where the case of the claimant is not contested on the pleadings, then minimal evidence will amount to credible and concrete evidence. Where, however, the other parry contests the case of the claimant, the claimant must, to succeed, lead credible evidence that preponderates over that of the other party on the facts in controversy.

In the present case, the Appellant contested the claim of the Respondent in her Reply to the Answer/Cross Petition. The case of the Appellant on the pleadings read thus:
“(a) That No 2, Algerian Crescent, Barnawa Kaduna is the Petitioner’s property and same is not owned in conjunction with the Respondent or any other person as the Petitioner single handedly financed its purchase.
(b) That the Petitioner single handedly provided the money with which the property situate at NAFDAC area, Narayi Kaduna was purchased and that the Respondent did not make any contribution to the purchase.
(c) That the Petitioner on her own and without the Respondent’s participation or input sold the property situate at NAFDAC area

to one Akpereva Patrick in the sum of N2M and not the sum of N2.2M as alleged by the Respondent. . . .
(d) That the Respondent did not put any money realized from the sale of his
Mercedes Benz Faker vehicle or any money at all on No 2, Algerian Crescent.
(e) The Petitioner says that the Respondent sold the said vehicle without the Petitioner’s knowledge notwithstanding the fact that it was the Petitioner who transferred the sum of N1,200,000.00 into the account of the Respondent to enable the Respondent buy off the vehicle from his employers. …
(f) The Petitioner says that contrary to the Respondent’s allegation … of t}e cross petition No 2, Algeria Crescent was purchased for the sum of N 18M and not over N 19M as alleged by the Respondent. . . .
(g) That the Petitioner sourced the sum of N 18M she used in paying for No 2, Algerian Crescent as follows:
(i) A loan of N13.5M from UBA Plc
(ii) A loan of N3M from Intercontinental Bank plc
(iii) The sum of N1.5M from the Petitioner’s personal savings. …
(h) That no shares belonging to the Respondent has been in the Petitioner’s possession nor did the Petitioner

sell any such shares nor was any proceeds paid to the Petitioner’s account as alleged by the Respondent.
(i) That the Respondent contributed nothing towards the offsetting of the loan obtained from both banks and also contributed nothing towards the purchase of No 2, Algeria Crescent, Barnawa, Kaduna.
(ii)) Though the Respondent did not make any contribution at all the Respondent has been receiving over N41,000.00 allowance monthly from the Petitioner’s employers which money has always been paid into the Respondent’s account No 6007462777 with Keystone Bank.
(k) That the Petitioner has provided for the Respondent so much that even the vehicle the Respondent uses now was purchased by the Petitioner.”

It must be noted that the Respondent filed a rejoinder to the Reply of the Appellant and he did not deny or contest in the rejoinder that it was the Appellant that gave him the sum of N1.2 Million with which he purchased the Mercedes Benz Faker car from his employers. The net effect of this is that the Appellant is deemed to have admitted this fact – Atanda vs Iliasu (2013) 6 NWLR (Pt 1351) 529, Nigeria Bottling Company Plc Vs Ubani (2014) 4 NWLR

(pt 1398) 421.

In proof of his averments, the Respondent led evidence in the exact terms of his case on the pleadings in his written depositions dated the 26th of September, 2011 and 10th of February, 2012, both of which he adopted as his evidence in chief at the trial. The Respondent did not tender any document in support of the averments. Reading through the evidence of the Respondent, apart from stating that the property in the NAFDAC area was the joint property of himself and the Respondent and that it was sold for N2.2 Million, nowhere therein did he state what his final contribution was to the acquisition or development of the said property. The Respondent, and by extension the lower Court, obviously forgot that his claim was not for a declaration of joint ownership of the property in the NAFDAC area. It was for a specific sum of money as his financial contribution to the purchase of the property at No 2, Algeria Crescent, Barnawa, Kaduna, and which contribution he said was made up of his portion of money in the property in NAFDAC area jointly owned by himself and the Respondent. It was thus incumbent on him to prove the exact sum that was his

portion in the property in NAFDAC area. It was not a matter for speculation or guess work.

With regards to the N300,000.00 which he said he contributed from the sale of the Mercedes Benz car it is obvious that the sale and purchase of a vehicle cannot be equated with sale or purchase of fruits by a roadside. It is a transaction that must be documented either by way of a sale agreement, document of change of ownership or purchase receipt. None of these documents was tendered by the Respondent to show that he indeed got the sum of N300,000.00 or more from the sale of the vehicle. Moreover, having admitted that it was the Appellant that gave him the sum of N1.2 Million to purchase the vehicle, the sum of N300,000.00, even if it was indeed given to the Appellant, can, and will at best only be a refund of the Appellant’s money and not contribution to the purchase of the property at No 2, Algerian Crescent Barnawa, Kaduna.

On the averment of contribution of the sum of N200,000.00, the testimony of the Respondent in his written deposition read “other sums from the sale of his shares with the Petitioner, not valued less than N200,000.00″. The Respondent did

not plead the companies in which he held the shares and neither did he state them in his evidence in chief. Under cross-examination, he testified that he bought the shares in Union Bank and UBA and that it was the Petitioner that bought the shares for him and that she sold the shares and did not tell him how much she sold the shares for. Now, if it was the Appellant that bought the shares for him and sold them on his behalf and she did not tell him how much she sold the shares for, where did the Respondent come about the sum of N200,000.00 that he claimed as the value of the shares? No evidence was glven of this fact and the figure was thus at best a conjecture or speculation.

On the averment that he contributed to the repayment of the loan obtained by the Appellant from the United Bank of Africa Plc for the purchase of the property at No 2, Algeria Crescent, Barnawa, Kaduna in the total sum of N500,000.00, the evidence of the Respondent as contained in his written deposition read thus:” . . . on the Respondent part he contributed the monthly sum of N50,000.00 through the Petitioner for not less than 10 months amounting to N500,000.00 towards

liquidating the loan from UBA for their new home.” The Respondent did not tender any document in proof of the fact and neither did he explain how he got the money and how he gave the money to the Appellant to pay; was it in cash or through bank transfers. He did not tender his statement of account to show the movement of the monthly contributions from him to the Petitioner. The evidence in chief as contained in the written deposition lacked the required assuredness of credible evidence as it did not state the specific months he made the monthly repayments and the words that he made it for “not less than 10 months” showed that he was not sure of the number of months for which he made the alleged repayments. This made the final figure of N500,000.00 claimed by the Respondent speculative and a guess work.

I must say that I am amazed as to how the lower Court could have preferred the evidence of the Respondent on the source of the money for the purchase of the property at No 2, Algeria Crescent, Barnawa, Kaduna to the evidence of the Appellant on the subject. The Appellant not only gave evidence in line with her case on the pleadings and she, in addition,

tendered documents – the offer of sale of the property, the deed of assignment executed by the vendor of the property in her favour, the UBA draft for N18 Million issued by the Bank in favour of the vendor of the property, the letter of offer of mortgage facility of N13.5 Million from UBA Plc to the Appellant, the letter of offer of Intercontinental Bank Personal Loan of N3 Million to the Appellant as well the cheque for N2 Million issued by the purchaser of the property in the NAFDAC Area in her personal name. The documents were variously admitted as Exhibits 2 to 6 and 9 at the trial.

The offer of sale of the property, Exhibit 3, was addressed by the vendor of the property to the Appellant alone and not to the Respondent and Appellant jointly and the deed of assignment, Exhibit 9, was executed in favour of the Appellant alone by the vendor and not in favour of the Appellant and Respondent. Section 128 (1) of the Evidence Act states that where any contract, grant or other disposition of property has been reduced into writing, no evidence of such contract, grant or disposition of property may be given other than the document itself and contents of any

such document cannot be contradicted, altered, added to or varied by oral evidence. The oral evidence of the Respondent that he jointly purchased the property at No 2, Algeria Crescent Barnawa, Kaduna cannot thus be admissible to vary the terms of the deed of assignment of the property, Exhibit 9, which showed that the property was purchased by the Appellant only – Aderounmu Vs Aderounmu (2003) 2 NWLR (Pt 803) 1.

Also, the letter of offer of mortgage facility from UBA Plc and of the personal loan from Intercontinental Bank Plc, Exhibits 5 and,6, showed clearly how the Appellant alone raised the total sum of N16.5 Million for the purchase of the property from the vendor. The cheque of N2 Million issued in favour of the Appellant by one Akpavera Patrick, Exhibit 2, confirmed that the Appellant solely sold the property at NAFDAC area for the sum of N2 Million, and not jointly with the Respondent for the sum of N2.2 Million. One of the most firmly established principles of evaluation of evidence is that once documentary evidence supports oral evidence, such oral evidence becomes more credible and this reasoning is premised on the fact and the law that

documentary evidence serves as a hanger from which to assess oral testimony -Ukeje vs ukeje (2014) 11 NWLR et 1418) 384, Gbileve vs Addingi (2014) 16 NWLR (Pt 1433) 394. The documents tendered by the Appellant supported her case that she solely sourced the funds for the purchase of the property at No 2, Algeria Crescent, Barnawa Kaduna. They made her case more credible than the disjointed case of the Respondent.

It is obvious that the decision of the lower Court on the refund of N2.2 Million by the Appellant to the Respondent ran counter to the evidence and pleadings of the parties and that the lower Court, in reaching the decision, took account of matters which it ought not to have taken into account and it shut its eyes to the obvious. The decision is thus perverse and liable to be set aside.

Further, and more importantly, it is obvious from the pleadings that the Respondent predicated his claim for the refund of the sum of N2.2 Million on the principle of settlement of property in matrimonial proceedings. Section 72 of the Matrimonial Causes Act dealing with settlement of property states:
“1. The Court may, in proceedings under this Act, by

order require the parties to the marriage, or either of them, to make, for the benefit of all or any of the parties to, and the children of, the marriage, such a settlement of property to which the parties are, or either of them is, entitled of them is, entitled (whether in possession or reversion) as the Court considers just and equitable in the circumstances of the case.
2. The Court may, in proceedings under this Act, make such order as the Court considers just and equitable with respect to the application for the benefit of all or any of the parties to, and the children of, the marriage of the whole or part of property dealt with by ante-nuptial or post-nuptial settlements on the parties to the marriage, or either of them.”
In Doherty Vs Doherty (2010) All FWLR (Pt 519) 1165 it was stated that the purport of the above provisions is that settlement of property is based on what the Court considers just and equitable in the circumstances of a particular case. The provision gives the Court a lot of discretion on the issue.

Now, it is trite that when a Court is called upon to exercise its discretion on an issue, it must ensure that it does not act

arbitrarily but judicially and judiciously based on sound principle of law and by giving weight to relevant considerations – First Fuels Ltd Vs NNPC (2007) 2 NWLR (Pt 1018) 276. Discretion is a very fluid situation and when a Court is invited to exercise its discretion one way or the other, the Court has to take cognizance of the very facts of the case before it – Bello vs Yakubu (2008) 14 NWLR (pt 1106) 104.
The Court’s discretion must be exercised so as to do what justice and, fair play may require having regards to the facts and circumstances of each particular case. It must never depend upon sentiments, tantrum or one sided consideration of the issues – Mamman Vs Salaudeen (2005) 18 NWLR (Pt 958) 478, Aje Printing (Nig) Ltd Vs Ekiti Local Govemment Area (2009) 7 NWLR (Pt 1141) 512, Oluwadamilare Vs University of Ilorin (2009) 17 NWLR (Pt 1169) 1. A Court must always exercise its discretion only on the basis of the materials placed before it and on no extraneous considerations – CFAO (Nig) plc Vs Sanu (2008) 15 NWLR (pt 1109) 1.

Ordinarily, this Court does not make a habit of interfering with the exercise of discretion by a lower Court. It will

only do so where it is shown that the lower Court exercised its discretion wrongly; that the discretion was not exercised judicially, i.e. that the discretion was exercised in an arbitrary manner and without due regard to all relevant considerations of necessary factors or on reliance upon wrong principles – National Bank of Nigeria Ltd Vs Guthrie (Nig) Ltd (1993) 3 NWLR (pt 284) 643 and Statoil (Nig) Ltd Vs Star Deep Water Petroleum Ltd (2015) 16 NWLR (Pt 1485) 361.

One of the determinants of whether a Court exercised its discretion on an issue judicially and judiciously is whether it considered the competing rights and convenience of both parties before coming to the decision. The unchallenged facts of this case are that the marriage between the Appellant and the Respondent was blessed with four children aged 14 years, 12 years, 8 years and 7 years as at 2011 when the petition was filed. The lower Court granted custody of the four children to the Appellant and the Appellant and the four children reside in the property at No 2, Algeria Crescent, Barnawa, Kaduna. The Respondent did not make any commitment of financial contribution to the upkeep of the

children throughout the trial and the lower Court made no order directing him to provide maintenance of any sort for the children. Thus, on the facts, the Appellant is to be wholly responsible, financially and otherwise, for the upkeep of the children, including their feeding, clothing, health needs, education, etc.

In this clime, it is the responsibility of the man to provide shelter and financial upkeep for his wife and children. A man who fails in these duties is regarded as being irresponsible and a failure. These are facts of common knowledge which by Section 124 of the Evidence Act need not be proved before a Court can take account of them. Rather than own up to his responsibilities or act with dignity where he is unable to do so, the Respondent had the shameless temerity to claim for a refund of monies amounting to less than 15% of the purchase price of the house wherein his children reside, and which he alleged that he contributed, from his wife, the Appellant, who, he concedes, provided the balance sum amounting to over 85% of the purchase price. By the claim, the Respondent desired the Appellant to bear the 100% cost of the house that his four

children reside in, in addition to her being solely responsible for their upkeep. To grant the claim means to absolve the Respondent of any and all responsibilities to his four children, and to heap absolutely everything on the Appellant. This is unheard of in this environment. It is a claim that should not have been accorded any worth by the trial Court as no Court of law should be seen to tolerate, condone and/or encourage such an open and shameless display of irresponsibility by a father to his children.

A read through the above reproduced excerpts of the judgment of the lower Court on the issue of refund shows that at, no time throughout the deliberations did the lower Court consider the interest of the Appellant and/or the interests of the four children of the marriage before coming to its decision. The lower Court, in the instant case, considered only the interest of the Respondent. By the provisions of Section 1 of the Child Rights Act of 2003, in all actions where children are concerned, whether undertaken by an individual, public or private body or administrative or legislative authority, the best interest of the child should be the primary

consideration.

It is trite that an exercise of discretion which is one sided, and does not consider other relevant rights and interests, cannot be a judicial and judicious exercise of discretion – Nigerian National Petroleum Corporation Vs Famfa Oil Ltd (2009) 12 NWLR (Pt 1156) 462, Dalfam Nigeria Ltd Vs Okaku International Ltd (2010) LPELR CA/A/100/M/2009. Justice in every case is a two way street – justice for the plaintiff and justice for the defendant. Justice simply means fair treatment and the justice in every case demands that the competing rights of the parties must be taken into consideration and balanced in such a way that justice is not only done, but must be seen to be done – Obajimi Vs Adedeji (2008) 3 NWLR (Pt 1073) 1, Mabogunje Vs Odutola (2008) All FWLR (Pt 412) 1182.

In the instant case, the lower Court did not do justice on the claim for the refund of money by the Respondent from the Appellant. The decision of the lower Court on the issue occasioned a miscarriage of justice and the circumstance of the finding of facts in the decision was most unreasonable. The decision is liable to set aside.

It is for these reasons that I am unable

to agree with the lead judgment. I find merit in the appeal and I hereby allow it. I set aside the portion of the judgment of the High Court of Kaduna State in Suit No KDH/KAD/837/2011 delivered by Honorable Justice Rahila Hadea Cudjoe on the 21st of August, 2013 awarding the sum of N2.2 Million to the Respondent against the Appellant as refund of his contribution to the purchase of the property at No 2, Algeria Crescent, Barnawa, Kaduna. I award costs of this appeal in favour of the Appellant in the sum of N50,000.00. These shall be my orders in this appeal.

Appearances

B. S. Asogwa, Esq.For Appellant

AND

Godwin Akpovwa, Esq.For Respondent