CHARLES EIGBE v. AJOKE ELIZABETH EIGBE
(2012)LCN/5697(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 4th day of December, 2012
CA/L/351/2010
RATIO
ORDER: WHETHER THE COURT WILL GRANT AN ORDER INCAPABLE OF BEING SUPERVISED
We have been admonished by the Supreme Court, not to grant an order incapable of being supervised. See:- A.G. Ogun State v. A.G. Federation (2002) 12 SC (pt.11) 1. The Supreme Court state as follows:-
“Where a party’s claim is wide and unmanageable, the court will refuse to grant same.” PER SIDI DAUDA BAGE, J.C.A.
RELIEF: PROPRIETY OF ANCILLARY RELIEF
The issue of custody of children under the Matrimonial Causes Act, falls in the realm of an Ancillary Relief. In respect of the propriety of its grant, the Supreme Court in the case of Adenuga v. Odumeru (2001) 1 SC (pt.1) 72 stated as follows:-
“Since the jurisdiction of the court is determined by Plaintiff claim, the court will not grant any Ancillary Relief not within the purview of the main claim.” PER SIDI DAUDA BAGE, J.C.A.
JURISDICTION: IMPORTANCE OF JURISDICTION OF COURT
The Supreme Court in the case of Madokolu v. Nkemdilim (1962) 1 All NLC 587 stated:-
“It is well settled that where a court has jurisdiction, the exercise of its powers within such jurisdiction is competent and valid.”
Thus, where the court does have jurisdiction its action cannot be competent and valid, (i.e. welfare department, London U.K.). On jurisdiction see also: Samson Awoleye v. Joshua O. Ogunbiyi (1985) 10 S.C. 35 at 37; Alhaji Baba BakinSalati V. Alhaji Talle Shehu (1986) 1 SC at 332 at 324; Savannah Bank of Nigeria Ltd v. Pan Atleantic Shipping and Transport Agencies Ltd, & Anor. (1987) 1 S.C. 198 at 266. PER SIDI DAUDA BAGE, J.C.A.
EVIDENCE: PRIMARY FUNCTION OF THE TRIAL JUDGE
It is trite law, for the appellate court it is elementary principle that the function of the evaluation of evidence is essentially that of the trial judge. Where the trial judge has un-questionably evaluated evidence and justifiably appraises that fact, it is not the business of an appellate court to interfere and to substitute its own views for the view of the trial court. The order in which a trial judge considers the evidence before him having heard the witnesses at the trial is entirely within the discretion of the judge who has heard the evidence.
It is a matter of style. He may begin with the case of the defence or prosecution. He may compare the evidence of one witness against the other. The important consideration is that the trial judge has evaluated all the evidence before him in respect of the prosecution and the defence before coming to his decision. See:- Onuoha v. The State (1985) NWLR (Pt.548) 118; Woluchem v. Gudi (1981) 5 SC. 291; Enag v. Adu (1981) 11 – 12 SC. 25. PER SIDI DAUDA BAGE, J.C.A.
EVIDENCE: NATURE OF EVALUATION OF EVIDENCE AND WRITING A JUDGMENT
Evaluation of evidence involves a reasoned belief of the evidence of one party and disbelief of the other or a reasoned preference of one version to the other, and it is also well settled that writing a judgment is an art, and as such each Judge is entitled to and is free to follow his own style in achieving the end result. However, a good Judgment must incorporate inter alia- set out the nature of the action before the court a review of the case for the parties; a consideration of the relevant laws raised and applicable to the case; specific findings of the facts and conclusions – see Ogolo v. Ogolo (2003) 18 NWLR (Pt.852) 494 where Katsina-Alu, JSC (as he then was) further observed as follows –
“The reasons for arriving at the conclusions must also be stated As there should be no fixed or right form of embarking on the process of achieving the end result…, what is, however, most essential is that the judge should show a clear understanding of the facts and raised in the case, the law applicable, and from all these, he should be able to arrive at a conclusion deciding all the issues in controversy in the case…”
So, what matters is the contents of the judgment on the issues, and once the judgment contains the traditional elements, it is not our duty as an appellate court to interfere therewith merely on the ground of style, which is personal – see Mbani v. Bosi (2006) 11 NWLR (Pt.991) 400. PER AMINA A. AUGIE, J.C.A.
Before Their Lordships
AMINAT ADAMU AUGIEJustice of The Court of Appeal of Nigeria
SIDI DAUDA BAGEJustice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMUJustice of The Court of Appeal of Nigeria
Between
CHARLES EIGBEAppellant(s)
AND
AJOKE ELIZABETH EIGBERespondent(s)
SIDI DAUDA BAGE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Hon. Justice E. O. Williams-Dawodu (Mrs.) sitting at the High Court of Lagos State, Ikeja Judicial Division, delivered on the 29th of December, 2009 in which the Appellant was the petitioner. The notice of Appeal filed by the Appellant to initiate this action is dated 4th January, 2010 and contains five (5) grounds of appeal.
The summary of the background facts to this action is as follows:-
The Appellant married the Respondent in the year 1991, and they wedded in the Methodist Church, Oshodi: They have two (2) children of the marriage, Eigbe Regina Otibhor Anuoluwapo born on the 23rd day of November, 1994 and Eigbe Obehi Opeoluwapo born on the 24th day of February, 1997. In the year 2001, the Respondent started misbehaving in such a way that the Appellant could not condone it. The Appellant claimed that the Respondent was keeping concubine while he was on transfer by his company. The Appellant stated that he found a message sent to her (the Respondent) by the said concubine and upon been confronted by the Appellant, the Respondent decided to stay on her own and of cause which was not protested by the Appellant. But in 2006, the Respondent began issuing threats to the Appellant filed a petition at the lower court and asked for a decree of dissolution of marriage, being that the marriage has broken down irretrievably. The Respondent filed an answer and a cross petition. While the case was still pending the Respondent took the two children of the marriage to London and abandoned them there. The Appellant filed a motion dated 1st of November, 2007 to enable him bring the children back to Nigeria and present them before the court. The application was granted.
The Appellant also filed another motion to amend the petition to add a prayer to relief sought as a second prayer for the custody of the children, since the welfare department in London said that they would release the children if the Appellant has judgment to that effect. The order was granted unopposed because it was undefended. After the amendment, the Appellant closed his case and the matter was adjourned for address, neither the Respondent nor her Lawyer showed up thereafter. The Appellant at the lower court reduced his submission in writing, and part of the judgment was against the Appellant, hence this appeal.
From the Notice of Appeal containing five (5) grounds of Appeal ascertainable from pages 121 – 124 of the Record of Appeal therein after simply called the Record, the Appellant distilled the following four (4) issues for determination as follows:-
1) Whether the learned trial judge is right by saying in his judgment that the petitioner/Appellant did not prove the grounds relied upon for the petition for divorce.
2) Whether the learned trial judge is right in granting a maintenance award to the Respondent who willfully took the children of the marriage away to London without the consent of the Appellant.
3) Whether the learned trial judge is right by hanging part of the judgment or abandoning delivery judgment in the relief sought by the Appellant as regards to the custody of the two (2) children of the marriage.
4) Whether the learned trial judge is right in ordering the Appellant return property that was not mentioned in one of the letters as Exhibit CE 4 dated 6th December, 2004, captioned for record purposes (where by the Respondent in his cross petition in the Lower Court listed the property she left in the house and also make a vital comment in respect of the said property.
In a motion on Notice dated and filed 7/3/11, the Appellant sought for, and obtained the order of this court for the appeal to be heard on the Appellant’s brief of argument alone, the Respondent having failed to file Respondents brief of argument and the time allowed to do so having expired. The motion was granted by this court on the 13/6/11. This appeal therefore shall be determined based on the Appellant’s brief of argument alone.
ISSUE ONE(1)
In arguing his issue No.1, the learned counsel to Appellant submitted that, the judge at the lower court held the Appellant did not prove the grounds relied upon for the petition for divorce. We state that the Appellant proved his case beyond preponderance of evidence. The Appellant in his testimony stated that he intercepted the message from the Respondent’s lover with the word “Dear Love, I love to hear you voice, pin in this number.” The Appellant also said that they quarreled in the church when he noticed that she called her male friends. The petition was instituted not only because of the message but that the Appellant made inquiries and the Respondent made confessions confirming the truth in the allegations.
Learned Counsel further submitted that the Respondent in her own statement said “my husband is fond of checking my phone and going to my office harassing my colleagues.” She said she does not know about the message, that Matthew Alao alias Margard, is her boss and others are her colleagues. The further said “I am not happy that he sued me but I am not fighting with him even if the marriage is dissolved.” These shows that the Appellant really did what is required based on the ground for dissolution of marriage under section 15(2)(b) 2(c), 2(d), 2(e) of the matrimonial causes Act.
Learned Counsel further submitted that, it is the law that, standard of proof in civil matter is on preponderance of evidence. Apart from direct evidence, circumstantial evidence would as well suffice in a case of adultery. See:- Ikpe v. Ikpe (1957) WRNL pg. 59: Sowande v. Sowande (1960) LLRP. PG. 58; Alabi v. Alabi (2007) 9 NWLR (pt.1039) 297 at 303.
The trial court on its part on page 119 of the Records of Appeal stated
“It is pertinent to state that the ground pursued by both sides adultery, was not proved as they both failed to comply with section 32(1) of the Matrimonial Causes Act Cap M7 of 2004, However the court is able to find that the marriage has broken down irretrievably.”
On the part of the court, the submission of counsel to the Appellant on issue No. 1 is carefully examined. Section 32 of the Matrimonial Causes Act Cap M7 of 2004 provides for joinder of adulterers; etc
(1) Where in a petition for a decree of dissolution of marriage or in an answer in such a petition, a party to the marriage is alleged to have committed adultery with a specified person, whether or not a decree of dissolution of marriage is sought on the basis of that allegation that the person shall, except as provided by rules of court, be made a party to the proceedings.
(3) Where a person has been made a party to proceedings for a decree of dissolution of marriage in pursuance of subsection (1) above, the court may, on the application of that person, if it satisfied after the close of the case for the party to the marriage who alleged the adultery that there is no sufficient evidence to established that the person committed adultery with the other party to the marriage, dismiss that person from the proceedings.”
The provision of section 32 of MCA, Cap. M7, of 2004 is very clear on a person alleged to have committed adultery with a partner in marriage. The Law mandatorily requires he must be joined in the petition to afford him the opportunity of defence to such allegation where such a person is not joined, adultery per se, cannot constitute a ground for a decree for dissolution of such marriage. Joinder of adulterers is a must requirement of the law. Where such adulterers are not joined, the petitioner cannot use any legal process for dissolution of the marriage on that ground. The law is already settled that where a statute provides a means which an action must be commenced, legal proceedings cannot be commenced by any other means. A Claimant who might have a cause of action looses the right to enforce it by judicial process. See:-
Esboigbe v. N.N.P.C. (1997) 5 NWLR (pt.347) 647 at 658 and 659 D – E; Odubeko V. Fowler (1993) 7 NWLR (pt.308) 637: Oke v. Oke (2006) 4 NWLR (pt.1008) 224 at 242 C – D.
The trial court was therefore correct to rely on the provision of section 32 MCA, Cap M7 2004 in refusing a decree for dissolution of the Appellant’s marriage on the ground of adultery against the Respondent. Issue No. 1 resolved against the Respondent. Issue No.1. is resolved against the Appellant.
On issue No. 2 learned counsel to the Appellant submitted that the Respondent did not show cause at the lower court why maintenance should be accorded her. The Respondent took the children of the marriage to London without the consent of the Appellant, and the Respondent confirmed that herself. The Appellant got to know about the abandonment of the children of the marriage through the head office in London via their email conversation dated 22nd day of November 2007. In that email, the Appellant demanded some information that would make the children to be brought back so he would assume responsibility for them.
Learned Counsel submitted further that the Respondent stated in her evidence that she had two children from the marriage, Otibhor Regina Eigbe and Obei Opeoluwapo Eigbe, that they are with her since 2004 and they were in school in woodland Primary School and Leads Girls School in London, respectively. In actual fact the children are in custody of the welfare department in Leads, while the Respondent is a wanted person in London. Furthermore, the email communication between one Tracy, a welfare officer in Leads and then Petitioner/Appellant e-mail communication titled “Request for information Regina and Juliana Eigbe dated 22/11/2007 is on page 63 of the records. Where are the children that ought to benefit from the maintenance being sought by the Respondent.
Also the issue where in the Lower Court ordered that Respondent be maintained by the Petitioner until she is gainfully employed is out of the way. The Respondent claimed she had been abandoned and taking care of the family to the extent she brought list of documents she tendered that was admitted as exhibits 1 – 19 respectively and she highlighted how she has been travelling to and fro from Nigeria to London but now she is nowhere to be found, although it is believed that she is pregnant for another man leading to her shedding herself from public glare.
Learned Counsel submitted further that on the basis of the above grave posers raised herein and taking into cognizance the wayward lifestyle of the Respondent, this court is urged to upturn the decision of the lower court on maintenance award.
On the part of the court this submission is carefully examined. The trial court on page 120 of the records of appeal stated:-
“Further that the Petitioner shall maintain the Respondent until she is evidently gainfully engaged and the children and to bear the cost of these proceedings.”
In the opinion of this court, this order of maintenance on the Appellant is too wide and vague, by the Lower Court. The Lower Court had the responsibility to determine from the evidence before it, the exact amount fixed by it for the maintenance order. How it was to be effected, and so on. We have been admonished by the Supreme Court, not to grant an order incapable of being supervised. See:- A.G. Ogun State v. A.G. Federation (2002) 12 SC (pt.11) 1. The Supreme Court state as follows:-
“Where a party’s claim is wide and unmanageable, the court will refuse to grant same.”
The Lower Court is in no position to supervise or manage its wide order. In obedience to the Supreme Court’s decision cited above this court has set aside the order of maintenance made by the Lower Court on the Appellant. Issue No. 2 resolved in favour of the Appellant.
On issue No. 3. Learned Counsel to the Appellant submitted that the Petitioner established that the children were abandoned by the Respondent and up till this present time the two children are still at Welfare department in Leeds London. The Petitioner laid material facts before the Lower Court on why the custody of the two children be granted to him. He stated that he is working in oil company (Total/Final ELF), an Engineer by Profession, thus his Salary is more than enough to cater for the upkeep of the two children in Nigeria. He further stated that the Respondent is at liberty to visit the children in his house.
Learned Counsel further submitted that the Respondent cannot cater for the children since she is doing nothing in England and has no means of livelihood, and in fact she abandoned the two children at the mercy of the welfare department in London. Based on all these we urge this court to set aside the decision of the Lower Court on custody of the children. See: Alabi v. Alabi (2007) 9 NWLR (pt.1039) 292 at 309: Williams V. Williams (1987) 2 NWLR (pt.34) 24.
On the part of the court the trial court on page 119 of the record of appeal stated:
“On the issue of custody of the children of the marriage, I shall suspend any pronouncement on the issue and shall order that the children be presented in court upon their arrival form U.K, from the evidence before the court, the Respondent would appear to have abandoned them, she did not file any counter-affidavit in response consequently, the ruling of the court in 2008 on the same. The court hereby orders that a social welfare officer who shall work with the Petitioner in the process of bringing the children back home form U.K. shall report to court upon the arrival of the children. The notice of their return shall be given to the court by the Petitioners Counsel for further hearing in the matter.”
The issue of custody of children under the Matrimonial Causes Act, falls in the realm of an Ancillary Relief. In respect of the propriety of its grant, the Supreme Court in the case of Adenuga v. Odumeru (2001) 1 SC (pt.1) 72 stated as follows:-
“Since the jurisdiction of the court is determined by Plaintiff claim, the court will not grant any Ancillary Relief not within the purview of the main claim.”
In the instant appeal the trial court made an order based on the Petitioner/Appellant’s Claim before it, ordering a welfare officer to process the return of the children of the marriage from London UK. After that is done in conjuncture with the Appellant, the Counsel should report back to court with the children in Nigeria, before a final order is made with respect to custody of the children. It is difficult to fault the decision of the trial court as its jurisdiction does not extend to and over the welfare department in London UK. The Supreme Court in the case of Madokolu v. Nkemdilim (1962) 1 All NLC 587 stated:-
“It is well settled that where a court has jurisdiction, the exercise of its powers within such jurisdiction is competent and valid.”
Thus, where the court does have jurisdiction its action cannot be competent and valid, (i.e. welfare department, London U.K.). On jurisdiction see also: Samson Awoleye v. Joshua O. Ogunbiyi (1985) 10 S.C. 35 at 37; Alhaji Baba BakinSalati V. Alhaji Talle Shehu (1986) 1 SC at 332 at 324; Savannah Bank of Nigeria Ltd v. Pan Atleantic Shipping and Transport Agencies Ltd, & Anor. (1987) 1 S.C. 198 at 266.
On the whole therefore the decision of the trial court on this issue of custody is quite apt, and this court will not disturb it. Issue No. 3 resolved against the Appellant.
On issue No. 4 learned counsel to the Appellant submitted that, the said judgment of the trial court delivered on the 29th day of December, 2009 be set aside on the basis that evidence of the parties were not properly evaluated. see:- Amokomowo v. Ande (1985) 1 WLR (pt.3) 530 at 538; Mogaji V. Odofin (1978) 4 SC 91; Oteki v. A.G. Bendel State (1986) 2 NWLR (pt.24) 648 at 657.
This court has examined the submission in this issue. It is trite law, for the appellate court it is elementary principle that the function of the evaluation of evidence is essentially that of the trial judge. Where the trial judge has un-questionably evaluated evidence and justifiably appraises that fact, it is not the business of an appellate court to interfere and to substitute its own views for the view of the trial court. The order in which a trial judge considers the evidence before him having heard the witnesses at the trial is entirely within the discretion of the judge who has heard the evidence.
It is a matter of style. He may begin with the case of the defence or prosecution. He may compare the evidence of one witness against the other. The important consideration is that the trial judge has evaluated all the evidence before him in respect of the prosecution and the defence before coming to his decision. See:- Onuoha v. The State (1985) NWLR (Pt.548) 118; Woluchem v. Gudi (1981) 5 SC. 291; Enag v. Adu (1981) 11 – 12 SC. 25.
In the instant appeal, the record clearly showed the Petitioner was heard in evidence and cross examined. The Respondent was equally heard in evidence and cross examined. The trial judge in his judgment delivered on the 29th December, 2009 appraised all the evidence before him, including all Exhibits tendered and admitted in evidence before arriving at its decision, with Laws and authority in support thereof. There is nothing like the failure of the trial court not evaluating the evidence before it. The issue of admissibility of certain document or refusal by the court is governed by a different rule of court.
In the final analysis, this court is satisfied that the trial court from the record of Appeal has un-questionably evaluated the evidence in this case the subject of the appeal and had justifiably appraised all the facts before it. Issue No. 4 is resolved against the Appellant.
On the whole therefore, this appeal succeeds in part as it relates to issue No. 2 only.
The Judgment of Hon. Justice E. O. Williams Dawodu (Mrs.) of the High Court of Lagos State Ikeja Judicial Division in suit No.ID/42HD/2006, delivered on the 29th day of December, 2009 is affirmed on issues Nos. 1, 3 and 4 only. Issue No. 2 resolved in favour of the Appellant.
AMINA A. AUGIE, J.C.A.: I have read the lead Judgment just delivered by my learned brother, Bage, J.C.A. and I agree with his reasoning and conclusion. He has dealt with all the issues canvassed in the appeal, and I will only add a few words on Judgment writing.
Evaluation of evidence involves a reasoned belief of the evidence of one party and disbelief of the other or a reasoned preference of one version to the other, and it is also well settled that writing a judgment is an art, and as such each Judge is entitled to and is free to follow his own style in achieving the end result. However, a good Judgment must incorporate inter alia- set out the nature of the action before the court a review of the case for the parties; a consideration of the relevant laws raised and applicable to the case; specific findings of the facts and conclusions – see Ogolo v. Ogolo (2003) 18 NWLR (Pt.852) 494 where Katsina-Alu, JSC (as he then was) further observed as follows –
“The reasons for arriving at the conclusions must also be stated As there should be no fixed or right form of embarking on the process of achieving the end result…, what is, however, most essential is that the judge should show a clear understanding of the facts and raised in the case, the law applicable, and from all these, he should be able to arrive at a conclusion deciding all the issues in controversy in the case…”
So, what matters is the contents of the judgment on the issues, and once the judgment contains the traditional elements, it is not our duty as an appellate court to interfere therewith merely on the ground of style, which is personal – see Mbani v. Bosi (2006) 11 NWLR (Pt.991) 400. The lower court’s style of writing cannot be questioned by this court, which is what the Appellant would like us to do, and since the learned trial Judge properly evaluated the evidence before arriving at his decision, his complaint to the contrary clearly lacks merit.
Thus, I also affirm its decision, and abide by the consequential orders in the lead Judgment.
RITA NOSAKHARE PEMU, J.C.A.: I had the privilege of reading in draft, the Judgment just delivered by my brother SIDI DAUDA BAGE JCA and I agree entirely with his opinion and conclusions.
I agree that the appeal succeeds in part only.
I abide by the consequential order made.
Appearances
C. J. JiakponnaFor Appellant
AND
For Respondent
