AYODELE VICTOR OKWUEZE & ANOR v. MRS. FUNMILAYO VICTOR OKWUEZE (2019)

AYODELE VICTOR OKWUEZE & ANOR v. MRS. FUNMILAYO VICTOR OKWUEZE

(2019)LCN/13541(CA)

In The Court of Appeal of Nigeria

On Monday, the 24th day of June, 2019

CA/EK/4/2018

RATIO

APPEAL: AN APPELLATE COURT HAS JURISDICTION TO LOOK AT THE EVIDENCE ON RECORD TO SEE WHETHER OR NOT THEY JUSTIFY THE CONSLUSION REACHED BY THE TRIAL COURT
In a situation such as at hand, it is trite and settled principle of law that, an appellate Court has jurisdiction to look at the evidence on record to see whether or not they justify the conclusion reached by the learned trial Court. See Section 15 of the Court of Appeal Law. It is elementary that, it is not the function of an appellate Court, ordinarily, to disturb the findings of fact of the trial Court, which saw the witnesses, heard them testify and believed one side and disbelieved the other save in circumstances such as the instant. See the cases of BALOGUN V. AKANJI 1988 1 NWLR 301 SC, KODILINYE V. MBANEFO ODU 1935 2 WACA 365 and FATOYINBO & ORS V. WILLIAMS ALIAS SANNI & ORS

MATRIMONIAL CAUSES: ADULTERY: HOW TO PROVE

Adultery may be proved either by direct evidence or circumstances from which the Court can infer adultery and should not be based on mere suspicion and opportunity. Part VII of the Matrimonial Causes Act is on evidence and the standard of proof required is as afore quoted under Section 82 that a matter of fact shall be taken to be proved if it is established to the reasonable satisfaction of the Court and that it will be sufficient if the Court is reasonably satisfied of the existence of that ground or fact, or as to that other matter.PER ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A

HOW TRIAL COURTS CAN EXPRESS DISCRETION
From the foregoing, the trial Court is expected to exercise discretion, judiciously and judicially, based on the facts and circumstances presented to it and from which it must draw a conclusion governed by law and nothing else. The exercise must be bonafide, honest, not influenced by any irrelevant consideration in pursuit of the applicable law otherwise, it will be set aside as it will not be permitted in law. See the cases of OKON B. EBE V. COP 2008 1 SC PT. II 222, UNILAG V. OLANIYAN 1985 1 SC 295, SAFFIEDINE V. COP 1965 1 ANLR 54 and SOLANKE V. AJIBOLA 1968 1 ANLR 46.PER ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A

JUSTICES

UZO IFEYINWA NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria

PAUL OBI ELECHI Justice of The Court of Appeal of Nigeria

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU Justice of The Court of Appeal of Nigeria

Between

1. AYODELE VICTOR OKWUEZE
2. MISS ADEOYE KIKELOMO OYEYEMI
(FORMERLY MRS KIKELOMO OYEYEMI AKINBODE) Appellant(s)

AND

MRS. FUNMILAYO VICTOR OKWUEZE Respondent(s)

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A (Delivering the Leading Judgment): This is an appeal against the decision of the Ekiti State High Court, Ado-Ekiti, delivered by Hon. Justice A. K. Fowe on June 28th 2017, wherein a decree of dissolution of marriage on the fact of adultery was entered in favour of the Respondent (the Petitioner at the Court below) against the 1st and 2nd Appellants (Respondent and Co-Respondent at the Court below).

The following orders were also made in respect of the two children of the marriage:
1. The custody of the two children namely: Chukwu Emeka Okwueze and Ifeanyi Okwueze is hereby granted to the petitioner
2. Order is hereby granted to the children to visit the Respondent during the holidays
3. Order is also granted to the respondent to visit the children any time
4. The most reasonable sum for the maintenance of the two children monthly will be ?20,000 apart from the school fees until the children attain the age of maturity.

The facts that culminated into this appeal as garnered from the printed Record before this Court are as follows:
The Respondent, a nurse at

Ise-Ekiti General Hospital petitioned the Court below for dissolution of her marriage to the 1st Appellant that it had broken down irretrievably on the ground of intolerable behavior and adultery. There are two children of the marriage, Olasunkanmi Emeka Victor- Okwueze, born September 15th 2005 and Tiwalola Ifeanyi Victor-Okwueze, born April 8th 2007. She prayed for the custody of their two children. The 1st Appellant, an Engineer, apart from filing an Answer in response also cross-petitioned for the dissolution of marriage on the ground of adultery and desertion and equally prayed for the custody of the children that they had been in his care since they were six (6) months old. There was a party cited, the 2nd Appellant, the Co-Respondent.

The Court in its wisdom dissolved the marriage on the fact of adultery and gave custody of the two (2) children of the marriage to the Respondent. See pages 223 to 240 of the printed Record before this Court.

Being dissatisfied with the decision of the Court, the Appellants on July 7th, 2017 filed their Notice of Appeal of even date, with four (4) grounds of appeal.

RELIEFS BEING SOUGHT:
a. To allow the appeal
b. Set aside the judgment of the lower Court delivered on 28th June, 2017.
c. An order granting the Reliefs of the 1st Appellant herein contained in his Cross-Petition.

In compliance with the Rules of this Court, the parties filed their briefs of argument. The Appellants? brief dated April 16th, 2018, filed April 17th, 2018, which was deemed on November 19th, 2018 and settled by Mr. Toyin A. Oyolola Esq. The Respondent?s was dated, April 16th, 2018, filed April 17th, 2018, deemed properly filed and served on May 13th, 2019 and settled by Miss Helen Olanipekun.

ISSUES SUBMITTED BY THE PARTIES FOR DETERMINATION
The Appellants submitted the following three (3) issues:
1. Whether the Learned trial judge was right to have dissolved the Marriage celebrated between the 1st Appellant and the Respondent on the ground of Adultery.
2. Whether in the circumstances of this case, the learned trial judge was right to have awarded the custody of the two (2) children to the Respondent.
3. Whether the failure of the learned trial (sic) to make a formal pronouncement on the cross petition occasioned

miscarriage of justice.

It is necessary to note that the Appellants failed to tie each issue to the applicable ground of appeal. However, after a careful perusal of the issues and the grounds, one is satisfied that all the issues came from the grounds of appeal filed.

The Respondent adopted the three (3) issues submitted by the Appellants. Having carefully read through the foregoing three issues, they are adopted for the determination of this appeal.

THE PARTIES SUBMISSIONS
SUBMISSION ON BEHALF OF THE APPELLANTS
Mr. Toyin Oyolola Esq., learned Appellants? Counsel submitted that the Respondent failed to prove the established five (5) different ways recognized by the Courts by which adultery is proved and that the evidence of the 2nd Appellant was never controverted at trial. He cited in support the cases of ERHAHON V. ERHAHON 1997 6 NWLR PT. 510 667, ALABI V. ALABI 2008 ALL FWLR PT. 418 245, ORERE V. ORERE 2017 LPELR 42160 CA and UGBOTOR V. UGBOTOR 2006 LPELR 7612 CA. He argued that, the Respondent relied only on mere suspicion and conjectures and the fact that the 1st and 2nd Appellants share the same office is not

enough to establish adultery. Therefore, the Court below was in error to have so found, he added.

He argued that going by the guiding principle for the award of custody, the facts and circumstances of the case between the parties and the affection between the 1st Appellant and the two (2) children of the marriage, custody should have been given to the 1st Appellant and not the Respondent. In support, he cited the cases of OKAOME V. OKAOME 2017 ALL FWLR PT. 900 P. 456, ELUWA V. ELUWA 2013 LPELR 22120, ODUSOTE V. ODUSOTE 2012 3 NWLR PT. 1288 478 and NANNA V. NANNA 2006 3 NWLR PT. 966 1. That, giving custody to the Respondent was not in the best interest of the children and is contrary to the clear provision of Section 71(1) of the Matrimonial Causes Act. He submitted that, it is clear that, the Court below failed to evaluate the evidence placed before it judicially and judiciously and cited in support the cases of S.P.D.C. LTD. V. NWABUEZE 2014 ALL FWLR PT. 724 P. 117 and EKONG V. OTOP 2015 ALL FWLR PT. 764 P. 156. Therefore, the decision of the Court below is lame and patently defective and should be set aside he added.

The learned Appellants

Counsel submitted that, it was strange for the Court below not to have considered or made any pronouncement on the Cross-petition which is similar to a Counter-claim and that the Appellants in that wise were denied their Constitutional right to fair hearing. He cited in support, Section 36 (5) of the 1999 Constitution of Nigeria, ORANEZI V. NGIGE 2014 ALL FWLR PT. 760 P. 1350, UZOKWE V. UZOKWE 2016 LPELR 40945 CA, EFFANGA BASSEY EFFIOM V. BASSEY EFIOM EDET 2016 LPELR 42047 CA and ENO BASSEY EKANEM V. ENGR. EKANEM BASSEY EKANEM & ANOR. CA/C/157/2010. He argued that, based on Section 15 of the Court of Appeal Act, this Court can hear the Cross-petition without sending it back to the Court below for rehearing since it meets the conditions as guidelines for the invocation of the Section and cited in support the case of VERNER V. FEDERAL UNIVERSITY OF TECHNOLOGY, YOLA 2017 LPELR 43001 CA P. 30.

In conclusion, he urged in the light of the foregoing that the appeal be allowed and the judgment of the Court below be set aside.

On behalf of the Respondent, learned Counsel, Mr. Rotimi Adabembe Esq., submitted that, the Respondent was able to establish

the valid ground, Section 15 (2) (b) of the Matrimonial Causes Act and cited the cases of HARRIMAN V. HARRIMAN 1989 5 NWLR PT. 119 6 and EKREBE V. EKREBE 1990 3 NWLR PT. 596 514. That, she alleged with proof that the 1st Appellant committed adultery with the 2nd Appellant and satisfied the Court therein according to Section 15 (2) of the said Act and Exhibit P2 and P12 which were admitted at the Court below. He submitted further that, as adultery is rarely proved by direct evidence but circumstantial, the Respondent through both oral and said documentary evidence, established the adulterous relationship between the 1st and 2nd Appellants and in support cited the cases of BENJAMIN ALABI V. EUNICE ALABI 2007 9 NWLR PT. 1039 297, AKINYEMI V. AKINYEMI 1963 2 SCNLR 303, IKPI V. IKPI 1957 WRNL 59 2 and SOWANDE V. SOWANDE 1960 LLR 58 3. That, as the 1st Appellant in Exhibit P2 stated clearly that the 2nd Appellant is his wife, there could be no argument or retraction by the 1st Appellant in that regard as he swore to the said affidavit and cited in support the cases of ERHAHON V. ERHAHON 1997 6 NWLR PT. 510 667, ONIYEDIMA V. TORABUTU 2002 FWLR PT. 131 1869,

ABIA STATE TRANSPORT CORPORATION & ORS V. QUORUM CONSORTIUM LTD. 2003 FWLR PT. 14 1975 and Section 109 of the Evidence Act 2011. He argued that, by Section 82 (1) of the Matrimonial Causes Act, once the party was able to prove adultery to the reasonable satisfaction of the trial Court as the Respondent was found to have done, dissolution on that ground was proper and urged that it be affirmed. In support, he cited the case of OMOTUNDE V. OMOTUNDE 2001 NWLR PT. 718 252 and ERHAHON V. ERHAHON supra.

Regarding the custody of the two children of the marriage, he submitted that, the evidence available in respect of the 1st Appellant is that he is not of stable residence as he travelled a lot, no feasible means of livelihood and that the two children were living apart and would seem none of them is living with him. Therefore, the Court was right to have awarded custody to the Respondent, who is their mother and ready to give motherly care and attention, he added. He submitted that, the Respondent with a stable job and financial capacity is more able to give the children sound and qualitative education and urged this Court to affirm the position of the Court

below in that regard. He cited in support the case of THERESA TEMITAYO WILLIAMS V. RASHEED AHMED WILLIAMS 1987 2 NWLR PT. 54 66. He urged that this Court should discountenance the document and receipts tendered by the 1st Appellant at the trial since some of them were obtained purposely for the proceedings at the Court below.

On the Cross-petition by the 1st Appellant, the learned Counsel contended that, the Appellants gave evidence and relied upon their pleadings during trial at the Court below, calling a witness in support of their case and therefore, cannot turn round to allege denial of fair hearing. That, the trial Court based its judgment on the said available evidence before it as it was apparent that both sides were desirous of dissolution of their marriage. Further that, the Court ascribed probative value to the admissible evidence, both oral and documentary before it by both sides, as no side was shut out. He cited in support, the cases of IGBEKE V. EMORDI 2010 11 NWLR PT. 1204 1, RAUF ADESOJI AREGBESOLA V. OLAGUNSOYE OYINLOLA 2011 9 NWLR PT. 1253 458, IORKPEN BEGHA V. MKPEN TIZA 2000 4 NWLR PT. 652 193 and EGBO V. AGBARA 1997 PT. 481 P. 293.

In conclusion, he urged that the Appellants? appeal be dismissed with substantial costs.

THE POSITION OF THE COURT
Having very carefully considered the submissions on behalf of both sides together with the processes filed herein, particularly the printed Record, I proceed to consider the issues already adopted as submitted by the Appellants, one after the other. For ease of reference they will be reproduced hereunder.

ISSUE 1
1. Whether the Learned trial judge was right to have dissolved the Marriage celebrated between the 1st Appellant and the Respondent on the ground of Adultery.

Firstly, I shall reproduce the relevant and applicable provisions of the law in the determination of this appeal.
Section 15 (1) of the Matrimonial Causes Act Cap 220 Laws of the Federation provides thus:
A petition under this Act by a party to a marriage for a decree of dissolution of the marriage may be presented to the Court by either party to the marriage upon the ground that the marriage has broken down irretrievably.
(2) The Court hearing a petition for a decree of dissolution of a 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-
(a) …
(b) that since the marriage the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;
(c) that since the marriage the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent.
It is necessary at this juncture to note that, both the Respondent and the 1st Appellant, (Petitioner and Cross-petitioner respectively at the Court below), petitioned for a decree of dissolution of their marriage on the fact of adultery amongst others. One of the Appellants? complaint is that the Court was wrong to have dissolved the marriage on the fact of adultery.
?It is trite and the settled law in Matrimonial Causes that,

the petitioner satisfies the Court which requirement runs through the whole gamut of the law. The duty of the Court in Matrimonial Causes is specifically stated in Section 55 thereof thus:
Section 55
Save where other provisions in that behalf is made by this Act, the Court, upon being satisfied of the existence of any ground in respect of which relief is sought, shall make the appropriate decree
Section 82 (1) For the purposes of this Act, a matter of fact shall be taken to be proved if it is established to the reasonable satisfaction of the Court.
(2) Where a provision of this Act requires the Court to be satisfied of the existence of any ground or fact or as to any other matter, it shall be sufficient if the Court is reasonably satisfied of the existence of that ground or fact, or as to that other matter.
It would seem clear in my humble view from the foregoing that, the trial Court is expected to exercise discretion in reaching its decisions one way or the other, which no doubt is a lot of judicial responsibility and must be done judiciously and judicially.
?From a careful perusal of the judgment on

pages 223-240 of the Record, one finds and respectfully that, the learned trial Court in its own style, did not show or provide the way it analyzed and evaluated the evidence before it. In other words, the substance, meat or the content of its analysis and reasoning before reaching its conclusion are absent from the body of the judgment. One is further of the respectful view that, this style leaves much to be desired as it does not assist the appellate Court as well as the parties in the comprehension and appreciation of the decision of the Court below. I shall say no more in that regard. Be that as it may, it is however clear from its decision from page 238 of the Record, after reproducing the proceedings at trial and the requirements for proof of adultery that, the marriage between the Respondent and the 1st Appellant was dissolved and as stated on the ground of adultery when it held thus:
The marriage celebrated between the petitioner and the Respondent on the 30th of May, 2005 in the Ido/Osi Local Government Registry, Ido-Ekiti, is hereby dissolved on the ground of adultery and that the marriage has broken down

irretrievably.
Before going further, it is necessary to note and with respect to the Court below that, the only ground for dissolution of a marriage is that it has broken down irretrievably as contained in Section 15, Subsection (1), which ground could be on a finding of any of the facts stated in Subsection (2) (a) to (h).
The pertinent question which arises herein is whether or not the Court was right to have dissolved the marriage on the fact of adultery.
?In a situation such as at hand, it is trite and settled principle of law that, an appellate Court has jurisdiction to look at the evidence on record to see whether or not they justify the conclusion reached by the learned trial Court. See Section 15 of the Court of Appeal Law. It is elementary that, it is not the function of an appellate Court, ordinarily, to disturb the findings of fact of the trial Court, which saw the witnesses, heard them testify and believed one side and disbelieved the other save in circumstances such as the instant. See the cases of BALOGUN V. AKANJI 1988 1 NWLR 301 SC, KODILINYE V. MBANEFO ODU 1935 2 WACA 365 and FATOYINBO & ORS V. WILLIAMS ALIAS SANNI & ORS

1956 1 FSC 87. In this regard therefore, I shall proceed to consider the evidence on record in the interest of justice and for economy of time and resources in the interest of the parties as well as the Court.
On page 152 of the Record, Exhibit P2 1-20 was admitted. It is made up of, an application filed on 15/6/2012, brought pursuant to the Fundamental Rights Enforcement Procedure Rules 2009 by the 1st Appellant, as the Applicant, wherein he sought the following:
A declaration that the arrest and detention of the Applicant?s wife, Mrs. Kikelomo Adeoye O. (the 2nd Appellant, addition mine) on the 8th day of March, 2012 by the 3rd, 4th and 5th Respondents without any formal criminal allegation against her is illegal and unconstitutional.
In the accompanying Statement and the supporting affidavit, paragraphs 30, 31 and 34 thereof, the 1st Appellant very clearly referred to the 2nd Appellant as his wife. Paragraphs 30, 31 and 34 are hereunder reproduced for appreciation of the points being made thus:
Paragraph 30
That on the 8th day of March, 2012 the 1st and 2nd Respondents caused

the 3rd, 4th and 5th Respondents to harass, embarrass my wife Mrs. Kikelomo Adeoye O. by effecting her arrest on the ground that, she should refund the said money as they do not know my whereabout.
Paragraph 31
That my wife was consequently arrested and detained at the Eleyele Police Station by the 3rd, 4th and 5th Respondents on the instruction of the 1st and 2nd Respondents.
Paragraph 34 (b)
That the arrest and detention of my wife by the 3rd, 4th and 5th Respondents is illegal and unconstitutional as same violates her fundamental right as enshrined in the 1999 Constitution of Nigeria.
(d) That myself and my wife are entitled to compensation jointly and severally from the Respondents by virtue of Section 35 (6) of the 1999 Constitution (as amended).
?During the cross-examination of the 1st Appellant, he did not deny that he referred to the 2nd Appellant as his wife in a law suit during the subsistence of his statutory marriage to the Respondent. See page 162 of the Record.
Adultery may be proved either by direct evidence or circumstances from which the Court can infer adultery and should not be based on mere suspicion and

opportunity. Part VII of the Matrimonial Causes Act is on evidence and the standard of proof required is as afore quoted under Section 82 that a matter of fact shall be taken to be proved if it is established to the reasonable satisfaction of the Court and that it will be sufficient if the Court is reasonably satisfied of the existence of that ground or fact, or as to that other matter.
From the foregoing, the trial Court is expected to exercise discretion, judiciously and judicially, based on the facts and circumstances presented to it and from which it must draw a conclusion governed by law and nothing else. The exercise must be bonafide, honest, not influenced by any irrelevant consideration in pursuit of the applicable law otherwise, it will be set aside as it will not be permitted in law. See the cases of OKON B. EBE V. COP 2008 1 SC PT. II 222, UNILAG V. OLANIYAN 1985 1 SC 295, SAFFIEDINE V. COP 1965 1 ANLR 54 and SOLANKE V. AJIBOLA 1968 1 ANLR 46.
?From the Record, pages 223-240, particularly page 239, it would appear that, the matter of fact of adultery was established to the reasonable satisfaction of the Court therefore, it dissolved the

marriage on that ground. One is able to agree with the conclusion of the Court in that regard, particularly with the testimony of the 1st Appellant during cross-examination where he did not deny his affidavit in Exhibit P2, which he swore to during the subsistence of his marriage to the Respondent. He stated as follows:
Exhibit P2 was caused to be instituted by me. .I was the applicant in Exhibit P2. I signed that affidavit in Exhibit P2. In paragraph 30 (sic) the affidavit. I referred to Kikelomo as my wife.
This Exhibit P2 came into it during the existence of my marriage with my wife.
See pages 162 of the Record. In that light, Issue 1 is resolved against the Appellants.

ISSUE 2
Whether in the circumstances of this case, the learned trial judge was right to have awarded the custody of the two (2) children to the Respondent.

The Court after the dissolution of the marriage stated as follows on page 239 of the Record:
The other issues are the custody and the maintenance of the children.
?In its wisdom, the Court awarded custody to the Respondent having

correctly stated that the two children of the marriage belong to the Respondent and the 1st Appellant jointly and that the Court has wide discretion to make orders in respect of custody, guardianship welfare and education of the children of a marriage.
The following Sections of the Matrimonial Causes Act are applicable herein and state as follows:
Section 70 (1)
Subject to this section, the Court may, in proceedings with respect to the maintenance of a party to a marriage, or of children of the marriage, other than proceedings for an order for maintenance pending the disposal of proceedings, make such order as it thinks proper, having regard to the means, earning capacity and conduct of the parties to the marriage and all other relevant circumstances.
Section 71 (1)
In proceedings with respect to the custody, guardianship, welfare, advancement or education of children of a marriage, the Court shall regard the interests of those children as the paramount consideration; and subject thereto, the Court may make such order in respect of those matters as it thinks proper.
Again, as earlier stated, this Court has the jurisdiction to

consider the evidence before the Court below and determine whether it exercised its discretion judicially and judiciously.
From the above provisions, the Court is expected in determining a prayer or an application for an ancillary relief of maintenance such as that of the Respondent?s to consider
i. the means,
ii. earning capacity and
iii. conduct of all the parties to the marriage
iv. and all other relevant circumstances.
Again, the judicious and judicial exercise of the Court?s discretion is necessary in determining whether or not to grant an ancillary relief. See Section 73 of the Matrimonial Causes Act with the various orders therein the Court may make, such as, lump sum, weekly, monthly, yearly or other periodic and secured sum as well as maintenance and any order. The interests of the children of the marriage must be paramount consideration. Were there relevant and material facts before the Court in support of the decision it reached, the question needs be answered.
?There are a host of authorities on the judicial interpretation and elucidation of the foregoing factors wherein the Courts have exercised

their discretion. This Court in the case of IBEABUCHI V. IBEABUCHI unreported Appeal NO. FCA/E/5/82 OF 22//9/82 held that, before an order for a lump sum under Section 73 (1) (a) of the Matrimonial Causes Act is made, consideration must be given to the parties? income, earning capacity, property and financial resources, financial needs and responsibilities, standard of life before the dissolution of the marriage, their respective ages and the length of time they were together as husband and wife as the factors cannot be assumed or presumed or taken for granted. That, there must be evidence which will enable the Court to arrive at a just decision and where it found that there was no such evidence before the Court, it set the judgment aside. In the case of NEGBENEBOR V. NEGBENEBOR 1971 1 ALL NLR 210, the apex Court held that, the husband?s income was his salary and distinct from his assets. It held the same position in the case of OLU-IBUKUN V. OLU-IBUKUN 1974 1 ALL NLR PT. 1 513. Earning capacity has been judged not based on what the spouse earns currently but the potential earning capacity. See the learned author, E. I. NWOGUGU P. 242. The Court

also gives consideration to the condition for award referred to as ?all other relevant circumstances. It allows the Court to give consideration to peculiar culture and way of life. See MATRIMONIAL CAUSES IN NIGERIA ? LAW AND PRACTICE by the learned Author, Nosiru Tijani.
Going through the Record and evidence before the Court, one finds as follows:
The testimony of the Respondent was not discredited during cross-examination in respect of her earning capability and capacity, her stable job and place of abode, that she cohabited with the 1st Appellant, lived and cared as a mother for the children of the marriage, pages 156-170 of the Record. There is evidence to the effect that, the two children live apart whilst they are supposedly living with the 1st Appellant. It is curious that one is unable to find evidence in support of the said business of the 1st Appellant in iron rods and block. It would seem in my view and humbly that, the Respondent is more stable in her job, being employed by the Ekiti State Hospital Management Board, see page 158 of the Record and the testimony of the 1st Appellant on page 162 of same is as

follows: She is gainfully employed by the government of Ekiti State.
Having very carefully gone through the gamut of the evidence at the Court below, pages 145-167, the testimonies of the parties and their witnesses, that is, the Respondent and her father, as her witness, the 1st Appellant, the 2nd Appellant and the 1st Appellant?s mother, one is of the considered view and humbly that, the position of the Court with regard to the ancillary orders should not be disturbed as it appears to be in the best interest of the two children. They can live and grow together with their parent, mother and not kept with a relation. I am unable to find any injustice or harm to the 1st Appellant thereby. As aforesaid, with respect, the whole judgment is bereft of the necessary content which would have assisted anyone reading it to know easily the reasoning of the Court. Given the foregoing findings from the Record, Issue 2 is resolved in favour of the Respondent.

ISSUE 3
Whether the failure of the learned trial (sic) to make a formal pronouncement on the cross petition occasioned miscarriage of justice.
?

The decision of the Court below spans from pages 223-240 of the Record. Throughout the said pages, one is unable to find wherein the Cross-petition could be said to have been considered and determined, the style of judgment writing of the Court cannot explain such omission. Mention however was made of the Cross-petition as a process before the Court, particularly on pages 223 and 224 of the Record. On page 239 of the Record, the Court dissolved the marriage of the parties on the ground of adultery as afore said based on the Respondent?s petition and moved to the issue of the custody and maintenance of the two children of the marriage, see pages 239-240 of the Record. On page 240 of the Record, the Court gave orders on custody and maintenance of the children without any mention whatsoever of the Cross-petition.
It is trite that, where a Cross- petition is filed by a Respondent, it is as good as a petition and the Respondent cannot in law be prevented from giving evidence on it. See the case of TABANSI v. TABANSI 2008 LPELR-4365 CA. Section 54(4) of the Matrimonial Causes Act, Cap 220 Laws of the Federation of Nigeria, 1990 provides

thus:
The Court shall, so far as is practicable, hear and determine at the same time all proceedings instituted by the one petition.
This Court had occasion to decide on the provision of Section 54 (4) of the Matrimonial Causes Act, with regard to where an Appellant?s Cross-petition was not pronounced upon in the cases of ANIDIOBI V. ANIDIOBI 2007 2 NWLR PT. 1017 P. 1 and EKANEM v. EKANEM & ANOR 2012 LPELR-14275 CA. In the latter case, per Uzo Ifeyinwa Ndukwe?Anyanwu JCA. P. 11 PARAS A-D, it stated as follows:
In matrimonial causes, it is wrong for the trial Court to refuse to decide the petition of the cross petitioner one way or the other. If a Court fails to hear and determine a Cross Petition it is fatal to the proceedings.
A Cross-petition is stated as part of the processes in a matrimonial cause under Section 114(1) of the Matrimonial Causes Act. See the case of ANIDIOBI v. ANIDIOBI supra. Therefore, the failure of the Court below to consider and pronounce upon the 1st Appellant?s Cross-petition is fatal, a defect that cannot be ignored or waived aside.

The foregoing is the clear position of the law. The question that follows in the circumstance of this appeal is, what then is the appropriate order or step having so found.
It is my considered view and humbly that, this is a proper case again, where the provision of Section 15 of the Court of Appeal Act should be invoked for the purposes of doing substantial justice to both parties and for the economy of time and resources for all stake holders herein, that is, the parties and the Court. It would not bring substantial justice if the Cross-petition is sent back to the Chief Judge of Ekiti State for retrial by another Judge, given all the Record placed before this Court and the general powers of the Court donated in Section 15 of its Act. From the Record, one finds all that is necessary for the determination of the Cross-petition one way or the other, the processes, evidence where no fresh evidence is needed, both oral and documentary, testimonies on oath of parties and their witnesses during the trial. In other words, this is not a case for an order of retrial. Therefore, I shall proceed to consider the Cross-petition.

The 1st Appellant, from pages

52-74, in his amended Answer and Cross-petition and written statements on oath equally prayed for dissolution of their marriage. He also stated that the marriage had broken down irretrievably and alleged adultery amongst other facts. I have painstakingly studied all the processes filed by the parties, both oral and documentary evidence of the parties and their witnesses as contained in the Record. See pages 52-90, 113-144, 145-211 and 220-222 of the Record. Having so done, one is unable to find that the marriage between the parties had broken down irretrievably on the fact of adultery as the 1st Appellant alleged and not any of the facts in Section 15 (2) (a)?(h) of the Matrimonial Causes Act. The 1st Appellant was unable to establish to the satisfaction of this Court the fact of (i) adultery, (ii) that, the Respondent had behaved in such a way that he could not reasonably be expected to live with her or (iii) that, she deserted the home. From the Respondent?s evidence which was not discredited during cross examination, the 1st Appellant packed the Respondent?s belongings out of the matrimonial home and later brought them back himself

and even that could never amount to desertion. There was no evidence of cessation of cohabitation such as would amount to desertion by the Respondent for a continuous period of at least one (1) year immediately preceding the presentation of the petition. The allegation of adultery with respect to one Dr. Opeyemi Komolafe and one Hon. Awe was not substantiated in any way, was mere suspicion. The law is that even mere proof of familiarity between the parties is not sufficient to establish adultery. The Respondent stated that she was working in the same hospital with the said Doctor. Because of the nature of the fact of adultery, it is usually inferred from surrounding circumstances as afore stated and rarely can be proved by direct evidence. See the cases of AMBE V. AMBE 1976 1 MNLR 28 and UDENZE V. UDENZE 1977 1CCHCJ 59. There was no cogent circumstantial evidence in the Record. See the case of ODUTOLA V. ODUTOLA 1977 5 CCHCJ 995. See pages 64-94 157-164 of the Record, the Respondent?s testimony on pages 113-143, 154-156 of the Record.
Flowing from the foregoing, one is unable to find in favour of the Cross-petition on any of the facts contained in

Section 15 Subsection (2) (a) to (h) of the Matrimonial Causes Act. Consequently, the Cross-petition is hereby dismissed and the marriage stands dissolved on the petition of the Respondent.

As regards the prayer for the custody of the two children of the marriage, I maintain the position already stated from the findings of this Court based on the Record, which affirms the orders of the Court below.

In the light of the foregoing, on the overall, the appeal cannot be allowed, as judgment cannot be found in favour of the Cross-petition. The following orders are hereby consequently entered:
The decision of the Court below delivered on June 28th, 2017, by Hon. Justice A.K. Fowe of the Ekiti State High Court on the Respondent?s petition is hereby affirmed.

The 1st Appellant?s Cross-petition is hereby dismissed for failure of the 1st Appellant to satisfy this Court of any one of the facts stated in Section 15 (2) (a) to (h) of the Matrimonial Causes Act. Notwithstanding, the marriage between the parties stands dissolved on the petition of the Respondent.

UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in the draft form, the Judgment just delivered by my learned brother E. O WILLIAMS-DAWODU, JCA. I agree with her reasoning and final conclusions. I abide by all the consequential orders contained in the lead judgment and adopt them as mine.

PAUL OBI ELECHI, J.C.A.: I have read in draft the judgment just delivered by my learned brother Hon. Justice Elfrieda Oluwayemisi Williams-Dawodu JCA.
?
I agree with his reasoning and conclusion that the appeal be dismissed and I hereby dismiss same also.
Appeal Dismissed.

Appearances:

R. Adabembe, Esq. with him I.E. Faloye, Esq. and H. Olanipekun, Esq.For Appellant(s)

Kehinde BayodeFor Respondent(s)

Appearances

R. Adabembe, Esq. with him I.E. Faloye, Esq. and H. Olanipekun, Esq.For Appellant

AND

Kehinde BayodeFor Respondent