BELIJE & ANOR v. UCHECHUKWU & ANOR
(2022)LCN/16012(CA)
In The Court Of Appeal
(OWERRI JUDICIAL DIVISION)
On Tuesday, July 19, 2022
CA/OW/178/2020
Before Our Lordships:
Rita Nosakhare Pemu Justice of the Court of Appeal
Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal
Ibrahim Wakili Jauro Justice of the Court of Appeal
Between
1. ENGR. MADU BELIJE 2. DR. JOHN OKOYE (Joined By The Order Of The Court Upon Application Granted Of 24/3/2022) APPELANT(S)
And
1. MADU LINDA UCHECHUKWU 2. DR. ADAORA MARGO OKONKWO RESPONDENT(S)
RATIO:
A COURT OF LAW CANNOT GRANT A RELIEF NOT SOUGHT
The law is elementary that a Court of law cannot grant a relief not sought.
A Court of law can only grant a relief sought if the party proves his case on a preponderance of evidence or balance of probability – OSUJI V. EKEOCHA (2009) LPELR, 2816 (S.C.)
The Court erred when it granted a relief not sought by the Cross-Petitioner.
It is to be noted that, the Court below erred in striking out the Petition in limine, the natural consequence of that error is that the Petition of the 1st Appellant subsists as that striking out order made on the 30th of April, 2020 ought to be, and same is hereby set aside. This issue is resolved in favour of the 1st Appellant and against the 1st Respondent. RITA NOSAKHARE PEMU, J.C.A.
THE COURT FINDINGS MUST BE BASED ON FACTS BEFORE IT
It is trite that a Court of law would confine itself to parties pleadings and relief when making its findings and ultimate orders ORIZU V. ANYAEGBUNAM (1978) 5 SC. 21. No sentiments. The Courts findings must be based on facts before it. RITA NOSAKHARE PEMU, J.C.A.
PROPERTIES SHOULD BE DIVIDED BASED ON THE CONTRIBUTION OF EACH PARTY ONCE THEIR MARRIAGE IS DISSOLVED
In a recent case decision in the Kenya Appeal Court, where in a unanimous move the Court held that joint requisition of property cannot be equaled to Joint ownership. They posited that the current position is that the properties should be divided based on the contribution of each party once their marriage is dissolved. Justices Daniel Musinga, Mohammed Warsame and Asike Makhandia ruled inter alia that marriage alone does not guarantee a wife (or even a husband) equal share of property. Instead, property should be divided based on what each spouse contributed towards the acquisition of the assets. RITA NOSAKHARE PEMU, J.C.A.
THE INTEREST OF THE CHILDREN TO THE MARRIAGE IS PARAMOUNT AND THE COURT MUST STRIVE TO DO JUSTICE NOT ONLY JUDICIALLY BUT JUDICIOUSLY
These facts were never contradicted nor shaken under cross-examination. It is no gainsaying that in divorce proceedings, the interest of the children to the marriage is paramount. OKWUEZE V. OKWUEZE (1989) LPELR 2539, (SC.)
The Court is duty bound to take into consideration (being seized of the opportunity to see the parties, and their witnesses in Court and observes their demeanour) some very vital factors in respect of their respective moral, financial, religious, occupational, professional standing, and indeed their temperamental disposition.
A Court will not grant the custody of children to the marriage to an undeserving spouse. In arriving at its conclusion, being faced with the bare facts, the Court must strive to do justice not only judicially but judiciously. RITA NOSAKHARE PEMU, J.C.A.
FINDINGS OF THE COURT WITHOUT EVIDENTIAL SUPPORT IS PERVERSE AND MUST BE SET ASIDE
The law is elementary that findings without evidential support is perverse and must be set aside. UDO V. C.R.S NEWSPAPER CO. (2001) 22 WRN, 53 (C.A.).
A decision is said to be perverse when it had been shown that the trial Court took into account matters which it ought not to have taken into account, and shuts it eyes to the obvious, or when it has occasioned miscarriage of justice. INCAR LTD V. ADEGBOYE (1955) 1NWLR (PT. 8) 453, RAMON ATOLAGBE V. SHORUN (1985) 1 NWLR (Pt. 2) 360. RITA NOSAKHARE PEMU, J.C.A.
ADULTERY CAN RARELY BE PROVED BY DIRECT EVIDENCE BUT A MATTER OF INFERENCE AND CIRCUMSTANCE
There is nothing to show that there was any incidence of adultery on the part of the 1st appellant, as facts relied on by the 1st Respondent were based on mere suspicion and conjecture. Adultery is an act which can rarely be proved by direct evidence. It is a matter of inference and circumstance. Adultery can be inferred when there is sexual intercourse with the other person other than the spouse. General cohabitation, confession and admission of adultery, frequent visits to hotels. None of these has been established by the 1st respondent against the 1st appellant. ERHAHON V. ERHAHON (1997) 6 NWLR, Part 510 at 667. I wonder on what claim the Court below founded its observation of adultery. RITA NOSAKHARE PEMU, J.C.A.
THE APPRAISAL OF ORAL EVIDENCE AND THE ASCRIPTION OF PROBATIVE VALUE TO AN EVIDENCE IS THE PRIMARY DUTY OF THR TRIAL COURT
In light of the foregoing, it is apparent that lower Court rightly evaluated the evidence of the parties before it and came to the right conclusion in entering judgment in favour of the 1st Respondent, I hold. I thus see no reason to tamper or interfere with its decision. It is settled law that appraisal of oral evidence and the ascription of probative value to such evidence is the primary duty of the trial Court and a Court of Appeal will only interfere with the performance of that exercise if the trial Court wrongly assessed tie said evidence and arrived at a wrong conclusion. See Statoil (Nig.) Ltd. v Inducon (Nig.) Ltd. (2021) 7 NWLR Part 1774 Page 1 at 55-56 Para H-A per M.D. Muhammad JSC, Okechukwu v Obiano (2020) 8 NWLR Part 1726 Page 276 at 302 Para G-H per Galinje JSC, Ukeje v. Ukeje (2014) 11 NWLR Part 1418 Page 384 at 405 Para H Rhodes-Vivour JSC.
It has not been shown that the lower Court wrongly assessed the evidence before it.
The appellate Court is loath to interfere with this duty of the trial Court except for strong reasons or where the judgment is perverse. See Ismail v Federal Republic of Nigeria (2020) 2 NWLR Part 1707 Page 85 at 127 Para B par Peter-Odili JSC; All Grand Alliance (APGA) v. Al-Makura (2016) 5 NWLR Part 1505 Page 316 at 348 para E-F per Nweze JSC. RITA NOSAKHARE PEMU, J.C.A.
RITA NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the High Court of Justice; Abia State sitting in Arochukwu Judicial Division, delivered on the 30th day of April, 2020 in Petition No: HAR/ID/2016.
SYNOPSIS OF FACTS
The 1st Appellant in this appeal was the Petitioner at the lower Court vide Notice of Petition filed on the 16th of June, 2016.
In the Petition, the 1st Appellant sought the following viz:
(a) “A DECREE OF DISSOLUTION OF MARRIAGE between the Petitioner and the Respondent on grounds of irreconcilable differences and that since the marriage, the Respondent has behaved in such a way that the Petitioner could not reasonably be expected to live with the Respondent.
(b) AN ORDER of this Honourable Court granting custody to the Petitioner.
(c) AN ORDER of this Honourable Court granting the Respondent access to the children.
(d) AND ANY OTHER ORDERS(S) as this Honourable Court may make in the circumstances of this case.”
The Petition was supported by four paragraphs verifying affidavit deposed to by the 1st Appellant himself.
Upon being served with the Petition, the 1st Respondent filed an ANSWER and Cross-Petition for dissolution of marriage in reaction to the Notice of Petition filed by the 1st Appellant.
In Response to the answer and cross-petition for dissolution of marriage, the 1st Appellant (Petitioner at the lower Court) filed a 22 paragraphs reply to the Answer and Cross-Petition for dissolution of marriage. The 1st Appellant also deposed to a verifying affidavit of four (4) paragraphs on the 2nd of September, 2016.
The 1st Respondent, upon being served with the 1st Appellant’s 22 paragraphs Reply to the Answer and Cross-Petition for dissolution of Marriage, he filed an eleven paragraphs Respondent/Cross Petitioner’s Rejoinder to Petitioner/Respondent’s reply.
The 1st Respondent, in the present appeal, filed eleven paragraphs reply to answer of the party cited on the 2nd of June, 2017. The Court below in delivering its judgment on the 30th of April, 2020, held inter alia that the marriage between the 1st Appellant and 1st Respondent had broken down irretrievably and then dissolved the marriage.
The 1st Appellant, Engineer Madu Belije was married to the 1st Respondent Mrs. Linda Belije nee Offiaeli, on the 11th day of December, 2000 at St. Michael’s Catholic Church Asata, Enugu, Enugu State.
They are blessed with four children namely Raphael Madu, Ifunnanya Madu, Chidubem Madu and Chukwunonso Madu. As at the date of the filing of the Petition, Raphael Madu was sixteen years of age, Ifunanya Madu was thirteen years of age, Chidubem Madu was eleven years old and Chukwunonso Madu was nine years old.
In the pleadings, the 1st Appellant stated that he did not enjoy the marriage with the 1st Respondent from its inception; as in the course of the marriage, the 1st Respondent had always put up negative attitude. She had allegedly consistently behaved in an intolerable manner. She is violent, abuse, aggressive, uncaring and quarrelsome. That she is temperamental, had no regard for tradition and her disposition towards the family was bad. That the 1st Respondent, could not sustain any white-collar job because of her attitude. Even she failed as a seamstress.
The 1st Appellant had further averred that the 1st Respondent never played the role of a mother in the lives of the children to the marriage. She maltreated her biological children so badly.
Both parties agree that the marriage has failed to be consummated for a very long period of time.
That all efforts to quell the domestic crises as the sole bread winner has failed, and indeed proved abortive; as the 1st Respondent would not yield to wise counsel from the family, elders and religious leaders.
The 1st Appellant and the 1st Respondent sought the custody of the four biological children of the union. Albeit with different reasons.
The Court below having listened to the submission of counsel representing the respective parties, struck out the petition for an order dissolving the marriage and howbeit made other orders.
The 1st Appellant had filed two separate notices of appeal, but he relies on the one filed on the 16th of June, 2020 for the purpose of this appeal – pages 498 – 507 of the Record of Appeal, encapsulating nine (9) grounds of Appeal.
The Appellants had two separate Appellants’ briefs of argument.
I shall comment on this later on in this judgment.
The 1st Respondent filed his brief of argument on the 22nd of June, 2022. It is settled by Jay Ezeuko SAN.
The 2nd Respondent’s brief was filed on the 19th of April 2022. It is settled by S.O. Onyiakhena.
The appellants’ reply brief was filed on the 6th of May 2022.
On the 24th day of June, 2022, counsel to the respective parties adopted their briefs of argument.
On the date of the hearing of this appeal which was the 24th of June, 2022, this Honourable Court observed that the 1st and 2nd Appellants on record had two separate counsel. M.K. Osadare, Esq., of counsel for the 2nd Appellant tells Court that the two Appellants on record have joint interests in this matter.
This Court, thereupon, by virtue of the provisions of Order 19 Rule 6 of the Court of Appeal Rules, 2021, ordered that the 1st and 2nd Appellants whose interests are identical file joint brief. At this stage, M.K. Osadare Esq., tells Court that he shall adopt the brief of Mohammed Ndarani Mohammd SAN, learned counsel to the 1st Appellant, which he did accordingly in the course of the hearing of this appeal.
For the purpose of this appeal, the brief of Mohammed Ndarani Mohammade SAN is adopted by M.K. Osadare Esq., and same is deemed the Appellants’ brief. It would be correct to say that the Appellants’ brief is settled by Mohammed Ndarani Mohammed SAN.
The Appellant distilled eight (8) issues for determination from the Grounds of Appeal.
ISSUES FOR DETERMINATION ARE AS FOLLOWS;
1. “WHETHER the learned trial Judge erred in Law by striking out the divorce petition of the petitioner (now 1st Appellant) on the ground that same is not in compliance with the provision of Section 15 (1) of the Matrimonial Causes Act but proceeded to grant some of the Reliefs sought by the 1st Respondent (who was a cross petitioner) in her Cross Petition?
2. WHETHER the learned trial Judge rightly granted a relief not sought by the 1st Respondent when he erroneously arrived at a perverse decision that the 1st Respondent and the Children should reside continuously at plot 706 life Camp, Dape District Abuja.
3. WHETHER the learned trial Judge rightly and properly evaluated the evidence placed before the Lower Court when he erroneously arrived at a conclusion in respect to the sale, alienation or transfer of title of a property situate at Plot 706, life Camp, Dape District, Abuja without any shred of supporting evidence being led in relation to the sale of said property?
4. WHETHER in the light of the uncontradicted testimony of the 1st Appellant at trial, the custody of the four biological children of the marriage ought to be awarded to the 1st Respondent?
5. WHETHER the failure of the learned trial judge to consider the 1st Appellant REPLY TO THE ANSWER AND CROSS PETITION FOR DISSOLUTION OF MARRIAGE did not occasion a gross miscarriage of justice?
6. WHETHER the learned trial judge did arrive at a right conclusion when he placed reliance on inadmissible and unsubstantiated evidence led by the 1st Respondent before arriving at the misconceived reasoning that the marriage be dissolved on the ground of adultery, domestic violence and cruelty.
7. WHETHER the learned trial judge was not perverse in his findings when he made pronouncement on the revocation of a property which has no bearing or semblance with the subject matter of divorce petition the cause of action before the Court?
8. WHETHER in the absence of credible evidence, it was right and just for the learned trial judge to come to the conclusion that the sum of N250,000.00 (Two Hundred and Fifty Thousand Naira) only be paid to the 1st Respondent on a monthly basis pending when she remarries?”
The 1st Respondent distilled five (5) issues for determination from the Grounds of Appeal. They are:
1. “WHETHER the trial Court was right in striking out the 1st Appellant’s Petition for being incompetent and not being in compliance with the Section 15 (1) of the Matrimonial Causes Act.
2. WHETHER the learned trial judge in determining the custody and welfare of the children on the marriage and the 1st respondent rightly made ancillary orders granting the 1st Respondent and the children of the marriage occupation of the matrimonial house until she remarries and setting aside any sale of the matrimonial home.
3. WHETHER the learned trial judge in the light of the evidence led and in the overall interest and the welfare of the children of the marriage rightly granted custody of the children of the marriage to the 1st respondent.
4. WHETHER the lower Court duly considered the case of the parties, properly admitted and evaluated all material evidence led, made unimpeachable findings and the orders as contained in his judgment.
5. ON WHETHER the trial Court rightly made an order that the Petitioner shall pay to the 1st Respondent the sum of N250,000.00 as monthly allowance in view of the evidence led.”
The 2nd Respondent distilled no issue for determination. In paragraph 2:0 of his brief of argument filed on the 19th of April, 2022, he stated that there is no relief claimed against her. And more so from all the issues formulated by the 2nd Appellant nothing touches on her. That she has nothing to urge on this Honourable Court.
I have taken pains to peruse the respective issues for determination proffered by the 1st Appellant and the 1st Respondent and it seems to me that the Appellant’s issues presented for determination covers the whole field and is apt to determining the appeal. I shall therefore consider this appeal based on the Appellants’ issues proffered for determination.
Issue No 1:
The Appellant submits that the pronouncement of the Court below in the judgment delivered on the 30th of April, 2020 viz:
“In the final analysis, the divorce petition of the Petitioner herein filed 16th day of June, 2016, having not been in compliance with Section 15 (1) of the Matrimonial Causes Act is structurally defective and hereby struck out. For want of jurisdiction to entertain it.” – page 470 of the Record of Appeal.
He submits that this is grossly misconceived while reproducing the Provisions of Section 15 (1) and 20 of the Matrimonial Causes Act, he submits that the 1st Respondent concedes to the fact that the marriage has broken down irretrievably. Indeed, that this is reproduced in the cross Petition – page 19 of the Record of Appeal.
He submits that the 1st Respondent has willfully and persistently refused to consummate the marriage. That in paragraph O of the 1st Appellants’ divorce petition filed at the Court below he specifically states that both parties have not consummated their marriage since February, 2016.
He submits that the provisions of Section 1(1) and Section 15 (2) of the Matrimonial Causes Act carry the mandatory word “shall” – citing BUHARI V. INDEPENDENT NATIONAL ELECTORAL COMMISSION (2009) 7 NWLR 1 AT 44.
Submits that there is nothing structurally defective in the petition filed by the 1st Appellant, as he complied with all the conditions precedent to commence the suit at the Court below. That the issues in the suit, the subject matter of this appeal have to do with a matrimonial dispute, which should come by way of a petition in line with the Provisions in the Matrimonial Causes Act.
At the trial, the 1st Appellant who testified as PW2 led evidence to the fact that the 1st Respondent behaved in so much of an intolerable manner, and that there were so many irreconcilable differences between the two of them, that, he cannot be expected to live with her. That from the first year of marriage, 1st Respondent refused to cook his lunch, but told him to be eating his lunch in the office, in order to minimize her workload, and he accepted. That the 1st Respondent was always depicting acts of violence, even to her house help. She accused him of keeping girlfriends, and she would not attend social functions with him. She was incapable of running any business, which both of them tried to do.
That this situation persisted throughout the years of marriage. Her mother did not help matters, as she always supported her daughter’s intransigence.
The 1st Appellant got her brother-in-law one Engineer George Okoye to offer the 1st Respondent a job as an Accounting assistant in PART ENGINEERING LTD, Port-Harcourt. While the 1st Respondent was there, she quarrelled with everyone in the accounts’ department. His brother-in-law transferred her to his own office as the Managing Director where she again exhibited her gross habits. That all efforts by himself, his mother, his siblings and various clergymen to involve her in the upkeep of the children to the marriage proved abortive as she consistently said that the children are his and not hers. Because of the 1st Respondents’ behaviour, one of their sons Chukwunonso could not take his CKC exams. That the 1st Appellant has established in ways more than one that the marriage has broken down irretrievably.
He queries why, in the face of there facts, the Court below raised the question of jurisdiction and then struck out the Petition? Indeed, having struck out the Petition, it went on to grant some of the reliefs sought by the 1st Respondent in her cross-petition.
He submits that without a Petition there would have been no cross-petition.
While conceding to the fact that a cross-action is an independent action on its own, a petition struck out of grounds of jurisdiction would put an end to the suit. That the scenario would be different if the learned trial judge dismissed the reliefs sought by the 1st Appellant in his Petition and not the main Petition itself.
That in this instant appeal, the 1st Respondent did not prove or establish upon preponderance of evidence, the pleaded facts and her cross-petition. That failure to do this renders the cross-petition unproved and as such the 1st Respondent is not entitled to the reliefs stated in her Cross-Petition.
The 1st Appellant submits that the Court below misdirected itself on the issue of jurisdiction, as the suit by the 1st Appellant was commenced properly according to law – (by way of a Petition). Secondly, that the trial Court had jurisdiction to entertain the Petition. Thirdly, the initiating application was properly signed by counsel.
Submits that the subject matter of the 1st Appellant’s Suit is within the jurisdictional competence of the trial Court.
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ISSUE TWO:
Submits that the 1st Respondent in her Cross-Petition had sought six reliefs. That however, the Court below granted the following reliefs in favour of the 1st Respondent. Thus:
“The marriage contracted between the Petitioner Engr. Madu Belije and the Respondent/Cross Petitioner Mrs Madu Linda Uchechukwu contracted on the 11th day of November 2000 is hereby dissolved on the ground that it has broken down irretrievably by reason of adultery, domestic violence and cruelty subject however to this order being made absolute in accordance with the Matrimonial Causes Act.”
The Court went on to make further orders, including giving the custody of all the children to the 1st Respondent, and the payment of some sums of money to the 1st Respondent.
That the 1st Respondent/Cross-Petitioner did not seek relief 6 granted her by the Court i.e.
“Respondent/Cross-Petitioner and the children are to continue to reside at Plot 706 Life Cap. Dape District Abuja and in respect of the Respondent/Cross-Petitioner until she remarries.”
He submits that the Court below therefore grant a relief not sought by the 1st Respondent citing EDILCON (NIGERIAN) LTD. V. UNITED BANK FOR AFRICA (2017) 18 NWLR Pt. 1596 Pg. 74 at 79.
ISSUE NO. 3:
Submits that the Court below in its judgment referred to the sale alienation or transfer of a property situate, lying at Plot 706 Life Camp. Dape District Abuja.
Submits that the 1st Appellant and the 1st Respondent did not in their respective pleadings, plead facts in relation to the sale, alienation or transfer of a property situate, lying and being at Plot 706, Life Camp Dape District, Abuja.
That indeed the parties led no evidence regarding these. That parties are bound by their pleadings and evidence.
ISSUE NO. 4:
He submits that in a divorce proceeding, the interest of the children in the marriage is of paramount interest. That the Court will take into consideration, some salient-factors in respect to the moral, financial, religious, occupational, or professional standing of the party in a divorce proceeding that will take custody of the children in the wedlock. That custody of the children would be given to the person who in the eye of the law has the moral, financial, religious standing and strength to nurture and cater for the daily needs and responsible upbringing of the children.
Submits that the 1st Appellant had in his evidence in chief and under cross-examination shown his financial ability and moral standing in the upbringing of the four biological children of the marriage from their childbirth up to the time of the filing of the divorce petition.
Submits that the evidence of 1st Appellant remain unchallenged with regard to the maintenance of his family and the custody of the children. That there is nothing that portrays the 1st Appellant as an irresponsible father and husband incapable of meeting the basic needs of his immediate and extended family.
Submits that the 1st Appellant furnished Court with facts as to his earning capacity, religious, and fatherly role played in the lives of his four biological children.
Submits that the custody of the four biological children is paramount. That the 1st Appellant led unshaken and reliable evidence at trial to justify the fact that he is capable and responsible enough to have the custody of the children – ODUSOTE V. ODUSOTE (2021) 3 NWLR Pt. 1288 Page 478 at 487 to 488.
That the 1st Respondent has no means of livelihood, as she admitted in her evidence that, she does nothing for a living. But the 1st Appellant is an Oil and Gas Engineer. He worked for Shell B.P before he resigned in the year 2012. His average earning was N600,000 per month which evidence was uncontroverted.
That the 1st Respondent lacked the financial strength and moral standing to have custody of the four biological children to the marriage.
According to evidence, before the Court below, all financial burden in the home was borne by the 1st Appellant.
That the 1st Appellant is in a position to fend for the four biological children of the marriage. He gets along well with them.
ISSUE NO. 5:
The 1st Appellant submits that it is apparent that the Court below did not consider the 1st Appellants’ reply to the Cross-Petition for dissolution of marriage. That this occasioned grave miscarriage of justice.
ISSUE NO. 6:
Submits that the 1st Respondent tendered numerous documents at the trial starting from the 20th day of February, 2018 to 12th of October, 2018, Exhibits R1, R2, R3, R4, R5, R6. R7, R77, R72, R73, R8 and R8 (1). Submits that the photographs tendered in evidence at the trial were not produced by the 1st Respondent. She did mention that the 1st Appellant returned home from the United States of America with those pictures. That the 1st Respondent in her evidence in chief did not state that she utilized her phone or any other mechanical or electronic device to capture and print the photograph tendered. But in its judgment, the Court did observe thus:
“The document sought to be tendered are photographs taken by the witness with her device according to the certificate.” – pages 642 of volume 2 of the Record of Appeal.
Submits that a party cannot read into its record of proceedings that which parties did not say or tender at the trial – GARUBA V. OMOKHODION (2011) 15 NWLR (Pt. 1269) 145 S.C.
Submits that Exhibits R5 and R5D Exhibit R7, R71 and R73 did not satisfy the statutory requirements of Section 84 of the Evidence Act 2011. That the certificate of compliance filed by the 1st Respondent at trial did not state that or address the authenticity of the photographs tendered in evidence at the trial. That rather the certificate of compliance only contains facts about a video production.
That the letter that emanated from the Law Office of G.E. Ezeuko (SAN) and Co sought the permission of the Court to play a video using laptop in the open Court – pages 250 to 252 of Volume 1 of the Record of Appeal.
Submits that the Provisions of Section 84 of the Evidence Act 2011 was not complied with KUBOR V. DICKSON (2013) 26 WRN 15 at 27 – 28.
That the marriage between the 1st Appellant and the 1st Respondent be dissolved on the ground of adultery; as she alleged adultery against him. But the 1st Respondent could not establish adultery. That the mere fact that the 1st Appellant and the party cited (now 2nd Respondent) on appeal took a snap shot as ex-students of Federal College Enugu. Class 88, is not tantamount to adultery. That all other classmates in the same school who are alumni took snap shot with him. That the Court below erred when he arrived at a misconceived decision that the marriage be dissolved on grounds of adultery, cruelty and domestic violence.
ISSUE NO. 7:
The 1st Appellant submits that the totality of the judgment shows that it is perverse. That this is because the Court below did not limit itself to the pleadings and reliefs sought by the parties.
ISSUE NO. 8:
The 1st Appellant submits that the 1st Appellant and 1st Respondent did not jointly own any property during wedlock. They do not run a joint bank account (facts elicited from PW2) (the 1st Appellant).
That the 1st Respondent has no remaining interest in the life of the 1st Appellant and as such, she is not entitled to any form of maintenance from the 1st Appellant. ERHAHON V. ERHAHON (1997) 6 NWLR (Pt. 510) Page 667 at 673.
Submits that in so far as the 1st Respondent did not contribute meaningfully to the family of the 1st Appellant as well as the business activities of the 1st Appellant, she is not entitled to maintenance from the 1st Appellant. That the 1st Respondent could not substantiate the claims or relief by evidence for her claims for maintenance.
Urges this Honourable Court to resolve these issues in favour of the 1st Appellant and to set aside the judgment of the Court below delivered on the 30th of April, 2020.
RESOLUTION OF ISSUES
ISSUE NO. 1:
Let me start from the observation of the Court below as to why it struck out the 1st Appellants Petition.
“In the final analysis, the divorce Petition of the Petitioner herein filed on 16th day of June, 2016, having not in compliance with Section 15 (1) of the Matrimonial Causes Act is structurally defective and hereby struck out for want of jurisdiction to entertain it”. – page 470 of the Record of Appeal.
Pertinent to reproduce the Provisions of Section 15 (1) of the Matrimonial Causes Act 1970.
It has this to say:
15 (1) “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.”
Vide a Petition for Decree of Dissolution of marriage filed by the 1st Appellant (Petitioner in the Court below) on the 16th of June, 2016, he commenced the said Petition thus:
“The Petitioner Engr. Madu Belije whose address is Mazi Chiori’s Compound, Amangwu, Arochukwu, Abia State Petitioned the Honourable Court for a decree of dissolution of marriage against the respondent whose address is Plot 706, off J.T. Huseni Way, Barger Clinic, Life Camp, Abuja on the grounds that the marriage has broken down irretrievably.” Page 3 of the Record of Appeal.
The order sought by the 1st Appellant (as Petitioner in the lower Court) are as follows:
(a) “A DECREE OF DISSOLUTION OF MARRIAGE between the Petitioner and the Respondent on the grounds of irreconcilable differences and that since the marriage, the Respondent has behaved in such a way that the Petitioner could not reasonably be expected to live with the respondent.
(b) AN ODER of this Honourable Court granting custody to the Petitioner of the four children.
(c) AN ORDER of this Honourable Court granting the Respondent access to the children.
(d) AND ANY OTHER ORDER 9S) as this Honourable Court may make in the circumstances of this case. “
Page 7 of the Record of Appeal.
Noteworthy is that the Respondent Cross/Petitioner (the 1st Respondent in this appeal) filed an ANSWER AND CROSS-PETITION FOR DISSOLUTION OF MARRIAGE on the 19th July, 2016. – Pages 13 – 26 of the Record of Appeal.
Ex facie, it is apparent that (contrary to the observation made by the Court below) the 1st Appellant (Petitioner at the lower Court) filed a competent Petition to which the Respondent/Cross-Petitioner filed a reply.
Indeed, the 1st Appellant’s reason for the Petition; as stated by him on the face of the Record, is that the marriage has broken down irretrievably. This renders the Petition filed by the 1st Appellant at the lower Court competent and not defective, and I so hold.
The jurisdiction of Court can aptly be wielded, when the subject matter of the case is within the jurisdiction of the Court and that there is no feature in the case which prevents the Court from exercising its jurisdiction. Secondly, that the Court is properly constituted as regards members and their requisite qualifications. Thirdly, that the case comes before the Court, having been initiated by due process of law and fulfilment of any condition precedent.
The jurisdiction of a Court to adjudicate in a matter must be determined by the facts placed before it and more importantly, by the phraseology of the Plaintiff’s claim – A.G. ANAMBRA V. A.G. FEDERATION (2007) LPELR 24343 (SC), EJIKE V. IFEDI (1998), 6 S.C.N.J. 87 at 89.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
The 1st Appellant had in his Petition as Petitioner in the Court below stated expressly that the purpose of the Petition was the grounds that the marriage has broken down irretrievably.
That was, in my view enough for the purpose of the Court assuming jurisdiction to entertain the matter as the 1st Appellant complied with the Provisions of Section 15(1) of the Matrimonial Causes Act 1970.
The Court below was therefore utterly wrong and erred grossly by striking out the Petition as it did in limine, for the reason that the Petition was structurally defective.
Assuming that the Petitioner did not state the term “on the ground that the marriage has broken down irretrievably”, as long as the summary of facts in support of grounds for dissolution of marriage show that the marriage has broken down irretrievably, that suffices as the Court have long departed from the doldrums of technicality.
The answer to Issue No. 1 is in the affirmative and same is resolved in favour of the 1st Appellant and against the 1st Respondent.
ISSUE NO. 2
A painstaking perusal of the 1st Respondents’ reply did not indicate reference to the property at Plot 706 Off J.T. Husseni Way Berger Clinic Life camp Abuja, Except that she and the 1st Appellant lived at that address. Paragraph 2 of the Answer and Cross-Petition for Dissolution of Marriage – Page 13 of the Record of Appeal. No where in her Cross – Petition did she lay claim to the said property.
In her relief 5, she stated thus:
“An order setting aside any purported sale and disposition of the family property, or transfer of friends from the matrimonial accounts to any other accounts made without the consent of the Cross-Petition prior and during the pending of this Petition and Cross-Petition.” – Page 24 of the Record of Appeal.
The Court below had declared that the Respondent/Cross-Petitioner and the children are to continue to reside at Plot 706 Life Camp, Dape District Abuja and in respect of the 1st Respondent as Cross-Petitioner until she remarries.
Relief 6 of the Cross-Petitioners’ Answer to Cross-Petition did not specifically claim the property at No 706, Life Camp Dape District, Abuja. There is nothing to show that the property was the only property belonging to the 1st Appellant.
The law is elementary that a Court of law cannot grant a relief not sought.
A Court of law can only grant a relief sought if the party proves his case on a preponderance of evidence or balance of probability – OSUJI V. EKEOCHA (2009) LPELR, 2816 (S.C.)
The Court erred when it granted a relief not sought by the Cross-Petitioner.
It is to be noted that, the Court below erred in striking out the Petition in limine, the natural consequence of that error is that the Petition of the 1st Appellant subsists as that striking out order made on the 30th of April, 2020 ought to be, and same is hereby set aside. This issue is resolved in favour of the 1st Appellant and against the 1st Respondent.
I shall take issues 3 and 7 together.
ISSUES 3 AND 7:
A painstaking perusal of the pleadings of the respective parties, do not indicate the sale, alienation transfer of the property, situate, lying and being at Plot 706, Life Camp Dape District, Abuja.
The 1st Appellant (as Petitioner in the Court below) had filed a reply to the Answer and Cross-Petition for Dissolution of marriage on the 27th of September, 2016 – pages 60 – 67 of the Record of Appeal.
In paragraph 12 thereof, the 1st Appellant (as Petitioner in the lower Court) averred thus:
“The Petition in answer to paragraph 22 of the Cross-Petition states that the correct address of domicile and residence is Plot 706 Off J.F. Useni Way, Berger Clinic, Life Camp, Abuja and not as stated by the Respondent/Cross Petitioner.”
The 1st Respondent filed no further reply to this paragraph.
It is trite that a Court of law would confine itself to parties pleadings and relief when making its findings and ultimate orders ORIZU V. ANYAEGBUNAM (1978) 5 SC. 21. No sentiments. The Courts findings must be based on facts before it.
The consequent order made in respect of Relief 6 of the Cross-Petition was ill founded and perverse. There is evidence on the 7th of June, 2017 that PW2 (1st Appellant) lived with three of his four children and therefore were in his custody.
In a recent case decision in the Kenya Appeal Court, where in a unanimous move the Court held that joint requisition of property cannot be equaled to Joint ownership. They posited that the current position is that the properties should be divided based on the contribution of each party once their marriage is dissolved. Justices Daniel Musinga, Mohammed Warsame and Asike Makhandia ruled inter alia that marriage alone does not guarantee a wife (or even a husband) equal share of property. Instead, property should be divided based on what each spouse contributed towards the acquisition of the assets.
A look at the evidence adduced by both the 1st Appellant and the 1st Respondent shows that the property at No. 706 Off J.F. Useni Way, Berger Clinic, Life Camp Abuja, was never an issue throughout divorce proceedings in the Court below.
No specific pleading regarding it by either by the parties. The Court below having erroneously struck out the competent Petition; had no right to have made the order it did, concerning the property, based on the Cross Petition.
Issues 3 and 7 are resolved in favour of the 1st Appellant and against the 1st Respondent.
ISSUE 4:
At the hearing of the Cross-Petition, the 1st Appellant (Petitioner in the Court below, had filed an Answer and Reply to the Cross-Petition of 22 paragraphs on the 2nd of September, 2016. A painstaking look at the reply shows what he had done as the bread winner in the family, his commitment to the welfare of the children, that all efforts to quell the domestic crises as the sole bread winner of the home, how that the 1st Respondent never played the role of a wife, and mother, how she could not keep any employment or job, how she is violent, abusive, aggressive, uncaring and quarrelsome. She is temperamental and she did not care about the biological children they had together.
These facts were never contradicted nor shaken under cross-examination. It is no gainsaying that in divorce proceedings, the interest of the children to the marriage is paramount. OKWUEZE V. OKWUEZE (1989) LPELR 2539, (SC.)
The Court is duty bound to take into consideration (being seised of the opportunity to see the parties, and their witnesses in Court and observes their demeanour) some very vital factors in respect of their respective moral, financial, religious, occupational, professional standing, and indeed their temperamental disposition.
A Court will not grant the custody of children to the marriage to an undeserving spouse. In arriving at its conclusion, being faced with the bare facts, the Court must strive to do justice not only judicially but judiciously.
The Court below showed no cogent basis for the consequential order made in its judgment.
There is nothing to show that the 1st Respondent has the capacity or clout to look after the children of the marriage. Both financially, psychologically mentally and spiritually.
Thus, the giving of the custody of the children of the marriage to the 1st Respondent was a wrong exercise of discretion on the part of the Court below, and I so hold. This issue is resolved in favour of the 1st Appellant and against the 1st Respondent.
ISSUES NO. 5
Failure of the Court to consider the 1st Appellant’s reply to the answer and cross-petition for dissolution of marriage occasioned gross miscarriage of justice. Indeed it makes the judgment perverse.
The term “miscarriage of justice” connotes decision or outcome of legal proceeding that is prejudicial or inconsistent with the substantial rights of the party. It means reasonable probability of a more favourable outcome for the party alleging it” – GBADAMOSI V. DAIRO (2007) LPELR-1315 (SC).
The Court below was in error having failed to consider the 1st Appellant’s reply to the answer and Cross-Petition of the 1st Respondent. This issue is resolved in favour of the 1st Appellant and against the 1st Respondent.
ISSUE 6
Nowhere in the evidence of the 1st Respondent did she state that she utilized her phone or any other mechanical or electronic device to capture and print the exhibit tendered. Exhibits R1, R2, R3, R4, R5, R6, R7, R77, R72, R73, R8 and R8(i).
The photographs tendered in evidence at the trial were not shown to have been produced by the 1st Respondent. In fact the 1st Respondent did say that the 1st Appellant returned home from the United States of America with those pictures.
Why then would the Court below State the following:
“The document sought to be tendered are photographs taken by the witness with her device according to the certificate” – pages 2 of the Record of Appeal.
That declaration was one not based on evidence before Court. It is perverse in all its ramification.
The law is elementary that findings without evidential support is perverse and must be set aside. UDO V. C.R.S NEWSPAPER CO. (2001) 22 WRN, 53 (C.A.).
A decision is said to be perverse when it had been shown that the trial Court took into account matters which it ought not to have taken into account, and shuts it eyes to the obvious, or when it has occasioned miscarriage of justice. INCAR LTD V. ADEGBOYE (1955) 1NWLR (PT. 8) 453, RAMON ATOLAGBE V. SHORUN (1985) 1 NWLR (Pt. 2) 360.
Learned counsel for the 1st Appellant had argued that Exhibits R5 and Exhibits R7, R71 and R73 did not satisfy the statutory requirement of Section 84 of the Evidence Act 2011. He submits further that the certificate of compliance filed by the 1st respondent at the trial did not address the authenticity of the photographs tendered in evidence at the trial. That the certificate of compliance only contains facts about a video production.
Section 84 of the Evidence Act 2011 deals with issues of admissibility of statements in documents produced by computer. Is there evidence that a document containing the statement was produced by the computer during a period over which the computer was used regularly to store or process information? Secondly is there evidence that over the period, there was regularly supplied to the computer in the ordinary course of those activities, information of the kind contained in the statement, or of the kind from which the information so contained is derived? Thirdly, is there anything to show that throughout the material part of that period, the computer was operating properly, if not, that in any respect in which it was not operating properly, or was out of operation during that part of that period, was not such as to affect the production of the document, or the accuracy of its contents; Fourthly that the information contained in the statement reproduces or its derived from information supplied to the computer in the ordinary course of those activities.
On the 20th of February, 2018, the 1st respondent testified at page 640 of the Record of Appeal. She did say:
“In April 2016, when he had gone to America, he came home with pictures of him and the party cited. A framed picture of him and the party cited. There was a card of him and party cited, there was boxers made for him and party cited with their names printed on it, which he wore at home. Imprinted on it is her name Ada and my husband’s nickname B.J.”
When the 1st Respondent was about to tender the pictures, there was an objection because she was not the maker of the documents. According to her, the pictures were brought by the 1st Appellant from the U.S.A. The Court below however went on to admit these documents as exhibits.
Under cross-examination, the 1st respondent when asked who gave the pictures which she tendered to her, said she got the pictures from her husband’s album.
When asked who took the pictures she answered “my husband”.
When asked who prepared the album she answered “was done by my husband. It was exclusively pictures of both of them”
When asked if she based her allegation of adultery on pictures and mere suspicions, she answered “No” – page 656 of the Record of Appeal Volume 2.
It is apparent that the Court below admitted the exhibits, albeit wrongly. It is also apparent that the facts which it relied on to support domestic violence; adultery are grossly unsubstantiated in law. There is in fact nothing to show how the pictures were produced and who produced them.
There is nothing to show that there was any incidence of adultery on the part of the 1st appellant, as facts relied on by the 1st Respondent were based on mere suspicion and conjecture. Adultery is an act which can rarely be proved by direct evidence. It is a matter of inference and circumstance. Adultery can be inferred when there is sexual intercourse with the other person other than the spouse. General cohabitation, confession and admission of adultery, frequent visits to hotels. None of these has been established by the 1st respondent against the 1st appellant. ERHAHON V. ERHAHON (1997) 6 NWLR, Part 510 at 667. I wonder on what claim the Court below founded its observation of adultery.
The Court below has consistently based its observation on the figment of the 1st Respondent imagination. Under cross-examination the 1st Respondent when asked if she has met the person cited said “No” (page 655 of vol. 2 of the Record of Appeal). She does not know the party cited. She had never met her, neither had she caught her with the 1st Appellant. When asked if her allegation is what 1st Appellant told her, she said “Yes”.
She had said that Michael, her son had seen the 1st Appellant and the person cited together. But Michael was not called to testify. Why? Whatever Michael had told her becomes hearsay evidence which is inadmissible in law. The totality is that the Court below based its decision on unsubstantiated and in admissible evidence in arriving at the reasoning that the marriage be dissolved. That decision is misconceived and holds no water. It is one which ought to be set aside being perverse. This issue is resolved in favour of the 1st Appellant and against the 1st Respondent.
ISSUE NO.8
The entire manner in which the Court below conducted the case speaks volume of its failure to have a grasp of the facts of the case. There was no basis for the amount awarded. This issue is resolved in favour of the 1st Appellant and against the 1st Respondent, as you cannot place something on nothing.
Having considered the issues submitted for determination by the 1st Appellant and resolving all in favour of the 1st Appellant and against the 1st Respondent, it is my view that the Court below having wrongfully struck out the 1st Appellant’s petition, the Petition filed on the 16th day of June, 2016 subsists and the reliefs sought are hereby granted as prayed.
Both parties are id idem that their marriage has broken down irretrievably.
The Cross-Petition fails in its entirety.
I find that the marriage broke down on the grounds of cruelty and domestic violence on the part of the 1st Respondent. The 1st Respondent has failed to establish adultery against the 2nd Respondent and the 1st Appellant.
The last two children of the marriage shall be in the custody of the 1st Appellant as the 1st Respondent does not have the capacity and means to take care of them. The eldest son who was sixteen-year-old as at the time of the institution of this Petition is now 21 years old, and can now look after himself. The 2nd child is now 19 years old. But the other two children who are still minors shall be in the custody of the 1st Appellant, subject to the 1st Respondent having access to them.
The 1st Respondent has been unable to controvert the claim of the 1st Appellant in his Petition. Her failure to file a reply to the 1st Appellant answer means that the facts therein are deemed admitted.
I hold that the marriage between Engr Madu Belige and Mrs. Madu Linda Uchechukwu has broken down irretrievably and noted is the fact that the 1st Respondent sought for maintenance but could not substantiate the claim for same. There is no iota of evidence to buttress the maintenance claimed. Because the 1st Respondent is the mother of the children of the marriage, she can however be entitled to the sum of N250, 000 (Two Hundred and Fifty Thousand Naira) only, as monthly allowance for a period of two years.
The appeal succeeds and same is hereby allowed.
The relief to set aside the sale of the home is hereby refused.
The judgment of the Abia State High Court, Arochukwu Division in Suit No: HAR/ID/2016, delivered on the 30th day of April, 2020, striking out the Petition of the petitioner is hereby set aside. The Cross-Petition fails.
N200,000 costs in favour of the 1st Appellant.
IBRAHIM WAKILI JAURO, J.C.A.: I had the privilege of reading before now the draft judgment just delivered by my learned brother, Rita N. Pemu, (PJ) JCA. My Lord has thoroughly dealt with the issues raised in this appeal, such that I have nothing to add. However, although there is no iota of evidence to support the award of N250,000.00 monthly maintenance to the 1st Respondent, the award I believe was made in the interest of justice and fairness to the 1st Respondent been a couple for years.
I abide by all the consequential orders.
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A. (DISSENTING): I have read in draft the judgment of my learned brother, RITA NOSAKHARE PEMU, JCA, setting aside the decision of the lower Court delivered on the 30th day of April, 2020 by I. A Nwabughogu, J in Petition No: HAR/1D/2016.
I however, respectfully disagree with my learned brother’s position.
A consummate look at the pleadings before the lower Court will reveal that on the allegation by the Appellant that the 1st Respondent is lazy, does no work and is an unfit mother to be given custody of the children of the marriage, the Cross-Petitioner joined issues with the Appellant in Paragraph 6, 12, 20 of her Answer and Cross-Petition for Dissolution of Marriage at pages 14-18 of the Record of Appeal and averred that she had to forgo her career as an Accountant to stay home and take care of their children at the behest of the Appellant and that she is in a better position to take care of the children being minors; various documents were tendered by her to this effect, including her graduate degree certificate from Enugu State University of Science and Technology where she graduated with a Second Class Upper degree in Accountancy and the admission letters of their last child, Micheal Madu, into Secondary School; she also testified to personally tutoring their 2nd child, Ifunanaya Madu, who was doing poorly in school.
She further testified that when the Appellant their two daughters who were in the school dormitory during their vacation, one of their daughters called her, the Respondent, on the phone and gave her the address of where the Appellant took them to and ask the Respondent to please come and take them home. On getting to the location she discovered that the Appellant’s cousin whom he said was looking after the children goes to work every day leaving the two female children alone with the male cook. See also paragraph 3, 7 and 8 of the Respondent/Cross-Petitioners rejoinder to Petitioner/Respondent’s reply at pages 202 -204 of the Record Appeal where she continued to join issues with the Appellant on this, thus putting him to strict proof of same.
On this issue, the lower Court in its judgment at Page 474 – 475 of the Record of Appeal held thus:
“In the case of Odusote v Odosute (2013) ALL FWLR Part 668 page 867 at 888, the Court of Appeal citing Odogwu v. Odogwu (Supra) had this to say: “Interest of the children would include their welfare, education, security and overall wellbeing and development. Therefore, the welfare of the children is the prime consideration in the determination of who should be granted custody. Except the Conduct of the wife is morally reprehensible, it is better in an estranged marriage for the child of the marriage, moreso, if that child is a girl and or of a tender age, to be left in the care and custody of the wife…’ There is no evidence before me of me impediment listed in Odusote v Odosute Supra against the Cross-Petitioner rather there are evidence of the children wanting to be with Respondent. Taking into consideration the totality of the evidence before me and the cases cited above, it will be in the interest of the four (4) children of the marriage for their custody to be given to their mother, the Respondent/ Cross-petitioner herein, I hold.”
I find no fault in the reasoning and conclusion arrived by the lower Court on this issue, I hold.
Furthermore, the Cross-Petitioner had listed various properties of he marriage in Paragraph 29 of her Answer and Cross-Petition for Dissolution of Marriage at page 22 of the Record of Appeal and sought, in Relief (e) at page 24 of the Record of Appeal, an order setting aside the purported sale of their family property. The Appellant’s response to the list of properties of the marriage is in paragraph 17 of his Reply to the Answer and Cross-Petition for Dissolution of Marriage at page 64 of Record of Appeal; wherein he averred in Subsection (d) of said paragraph that their residential property at Plot 706, Life Camp Dape, FCT Abuja was sold since July 2015 to offset his financial obligations. This was thus, an issue before the lower Court, I hold.
In respect of this the lower Court rightly held as follows;
“With respect to the Matrimonial home of the parties Plot 706, Life Camp, Dape Dist, Abuja from where petitioner moved out, but where the Cross-petitioner and some of the children still resides, there is no dispute that it belongs to the Petitioner. There is no credible evidence before me that it was indeed sold by the petitioner as he claims. The property remains matrimonial home of the parties and the children of the marriage.”
And made the following orders;
6. Respondent/Cross-Petitioner and the Children are to continue to reside at Plot 706, Life Camp Dpae, FCT Abuja and in respect of the Respondent/Cross-Petitioner until she remarries.
7. In consequence of the above order, the sale, alienation or transfer of the title of the property i.e, Plot 706, Life Camp Dape, FCT Abuja to anybody or person is hereby revoked and accordingly set aside.
On issue of adultery, cruelty and domestic violence, the lower Court held:
“In addition, documentary and oral evidence of the RW1 with regard to the Petitioner’s adultery with the party-cited, domestic violence and cruelty are cogent and are credible and persuasive and I am obliged to accord it probative value.”
I note that the documentary evidence referred to by the lower Court includes, but is not limited to, a Medical report from Precious Life Medical Centre dated the 10th day of January, 2013 reporting the treatment of the Respondent who had lacerations on her jaw from domestic violence; men’s underpants emblazoned with the names and initials of the Appellant and party-cited; album of pictures of the Appellant and the party-cited with the inscription – “Bee Jay, if I had to live my life over again, I’d find you sooner so that I can love you longer.”
On proof of adultery this Court in Alabi v. Alabi (2007) 9 NWLR (Part 1039) Page 297 at 356-357, Para H-G had this to say per my learned brother, Sankey JCA;
“It is recognized and accepted that, apart from direct evidence, which is very rare, adultery is usually proved by circumstantial evidence. These could take various forms, but a few are:
a. Familiarity and opportunity: if parties are intimate and they have been together in circumstances in which it could be reasonably inferred that they have committed adultery, then they will be presumed to have done so unless there is evidence to the contrary.
b. Venereal disease: if me petitioner can prove that the respondent had contacted a venereal disease from a third party during the marriage, this will give rise to a presumption of adultery.
c. Brothel: if a spouse visits a brothel with a third party, it will be presumed that such a spouse has committed adultery.
d. Confessions and admissions of adultery: These types of evidence are usually scrutinised because of the danger of fabrication. The Court takes into account all circumstances including the desire for a divorce of the party confessing. In such a case, the Court usually insists that the evidence be corroborated, although it may not necessarily refrain from pronouncing a decree simply because the evidence is not corroborated. Caution is simply advised in acting on such.
e. The birth of a child, the period of gestation being a very important factor to take into consideration.
The list, of course, is not exhaustive.”
In light of the foregoing, it is apparent that lower Court rightly evaluated the evidence of the parties before it and came to the right conclusion in entering judgment in favour of the 1st Respondent, I hold. I thus see no reason to tamper or interfere with its decision. It is settled law that appraisal of oral evidence and the ascription of probative value to such evidence is the primary duty of the trial Court and a Court of Appeal will only interfere with the performance of that exercise if the trial Court wrongly assessed tie said evidence and arrived at a wrong conclusion. See Statoil (Nig.) Ltd. v Inducon (Nig.) Ltd. (2021) 7 NWLR Part 1774 Page 1 at 55-56 Para H-A per M.D. Muhammad JSC, Okechukwu v Obiano (2020) 8 NWLR Part 1726 Page 276 at 302 Para G-H per Galinje JSC, Ukeje v. Ukeje (2014) 11 NWLR Part 1418 Page 384 at 405 Para H Rhodes-Vivour JSC.
It has not been shown that the lower Court wrongly assessed the evidence before it.
The appellate Court is loath to interfere with this duty of the trial Court except for strong reasons or where the judgment is perverse. See Ismail v Federal Republic of Nigeria (2020) 2 NWLR Part 1707 Page 85 at 127 Para B par Peter-Odili JSC; All Grand Alliance (APGA) v. Al-Makura (2016) 5 NWLR Part 1505 Page 316 at 348 para E-F per Nweze JSC.
There is nothing in this appeal to show that the judgment of the lower Court was perverse or against the weight of evidence. In conclusion, while I agree with the lower Court and with my learned brother that the marriage had broken down irretrievably, I hold the grounds, as also held by the lower Court, to be domestic violence and cruelty by the Petitioner and the Petitioner’s adultery with the party cited.
It is my order that the last two children of the marriage, being minors and one of whom is female, shall be in the custody of their mother. The first two children are now old enough to look after themselves.
It is my further order that the Petitioner shall continue to pay the school fees of the children and to pay the sum of N150,000 (One Hundred and Fifty Thousand Naira only) per month to the 1st Respondent/Cross-Petitioner for the upkeep of the children of the marriage.
I agree with my learned brother that the Petitioner shall pay, the sum of N250,000 (Two Hundred and Fifty Naira only) per month to the 1st Respondent for her maintenance for the next two years.
I affirm the order of the lower Court that the sale, alienation or transfer of the title of the property, viz Plot 706, Life Camp Dape, FCT Abuja to anybody or person is revoked and set aside.
The 1st Respondent, I hold, shall continue to reside in the said house.
The judgment of the lower Court is accordingly affirmed in part, as stated above.
Each party shall bear their respective costs.
Appearances:
Muhammed Ndarani Muhammed SAN, with him, Clement Nwachukwu, and Chima Ejike, (Mrs) – for 1st Appellant
M.K. Obadare, Esq, – for 2nd Appellant. For Appellant(s)
A.C. Arinze, Esq, – for 1st Respondent
S. C. Okafor, Esq, – for 2nd Respondent. For Respondent(s)
