KADIRI & ANOR v. ABU (2022)

KADIRI & ANOR v. ABU

(2022)LCN/16972CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Wednesday, June 08, 2022

CA/A/961/2018

Before Our Lordships:

Peter Olabisi Ige Justice of the Court of Appeal

Hamma Akawu Barka Justice of the Court of Appeal

Mohammed Mustapha Justice of the Court of Appeal

Between

1. CDR. ODUFA KADIRI 2. MR. ETHIASOR JOSEPH ABU APPELANT(S)

And

MRS SHIZAWALI ABU RESPONDENT(S)

RATIO

CONDITIONS THAT MUST BE PRESENT BEFORE THE APPELLATE COURT CAN INTERFERE WITH THE AWARD OF DAMAGES BY THE TRIAL COURT

On when an appellate Court will interfere with award of general damages by the trial Court, learned Counsel said it is trite that an appellate Court will not ordinarily interfere with an award of damages by the lower Court but the appellate Court may however, interfere with the award of damages by a trial Court where it is satisfied that the trial Court in assessing the damages, applied a wrong law or a wrong principle of law such as taking into account some irrelevant factors or leaving out of account some relevant factors in assessing the damages awarded. He cited and relied heavily on the case of AFRIBANK (NIG) PLC V. A. L. INVEST LTD (2002) 7 NWLR (PT. 765) 40, 68 PARAS E-G PER ONNOGHEN J.C.A (as he then was). He also cited the cases of STIRLING CIVIL ENG. (NIG) LTD V. YAHAYA (2005) 11 NWLR (PT. 935) 181 AT 209-210 PARAS G-C PER EDOZIE, J.S.C.; UBN V. CHIMAEZE (2014) 58 (PT. 1) NSCQR 155 AT 188-189, KEKERE-EKUN, JSC enumerated the circumstances that would warrant interference with an award of general damages made by a trial Court as follows:
a. If the Court is satisfied that the trial Judge acted in the award of such damages, upon some wrong principle, or;
b. That the amount awarded was so large or so small as to make it a completely erroneous assessment of the damages, or
c. Where a finding of the trial Court is found to be perverse. PER OLABISI, J.C.A.

THE POSITION OF CLAIM FOR DAMAGES UNDER THE MATRIMONIAL CAUSES ACT

Section 31 of the Matrimonial Causes Act Cap M7 LFN 2004 provides as follows:-
“31. Claim for damages
(1) A party to a marriage, whether husband or wife, may, in a petition for a decree of dissolution of the marriage alleging that the other party to the marriage has committed adultery with a person or including that allegation, claim damages from that person on the ground that that person has committed adultery with the other party to the marriage and, subject to this section, the Court may award damages accordingly.
(2) The Court shall not award damages against a person where the adultery of the respondent with that person has been condoned, whether subsequently revived or not, or if a decree of dissolution of the marriage based on the fact of the adultery of the respondent with that person, or on facts including that fact, is not made.
(3) Damages shall not be awarded under this Act in respect of an act of adultery committed more than three years before the date of the petition.
(4) The Court may direct in what manner the damages awarded shall be paid or applied and may, if it thinks fit, direct that they shall be settled for the benefit of the respondent or the children of the marriage.” PER IGE, J.C.A.

THE POSITION OF LAW ON THE INTERPRETATION OF STATUTES

The trite position of the law is that provisions of a statute must not be constructed in a way as would defeat the intendment of the statute and the desire of the Legislature. The Court should not interpret the provisions of the statute to defeat the obvious end it was meant to serve otherwise it will entail injustice. Where the words of the statute are plain and unambiguous the literal interpretation should be followed. See;
1. APC & ANOR V. ENGR. SULEIMAN ALIYU LERE & ANOR (2020) 1 NWLR (PART 1705) 254 AT 284 F-G per RHODES-VIVOUR, JSC who said:-
“Where the words used in a statute are clear and free from ambiguity they should be read and construed as it is without any interpretations or embellishments. The words should be given their ordinary meaning except where such a construction would be ridiculous, not logical and sensible. See A-G. Anambra State v. A.G. Federation (1993) 6 NWLR (Pt. 302) p. 692; Mobil v. F.B.I.R. (1977) 3 SC p.53; Toriola v. Williams (1982) 7 SC p. 27. The words used in the statute supra are clear and unambiguous. They should be given their plain ordinary meaning which is not in doubt.”
2.HON. HENRY SERIAKE DICKSON VS. CHIEF TIMIPRE MARKIN SYLVA &ORS (2017) 8 NWLR (PART 1567) 167 at 233 D – F per KEKERE-EKUN, JSC who said:
“The law is settled that in the interpretation of Statutes, where the words are clear and unambiguous, they must be given their natural and ordinary meaning. See: Ibrahim v. Barde (1996) 9 NWLR (Pt. 474) 513 @ 577 B-C; Ojokolobo v. Alamu (1987) 3 NWLR (Pt. 61) 377 @ 402 F-N. The exception is where to do so would lead to absurdity. See: Toriola v. Williams (1982) 7 SC 27 @ 46; Nnonye v. Anyichie (2005) 1 SCNJ 306 @ 316, (2005) 2 NWLR (Pt. 910) 623. Where an interpretation will result in breaching the object of the statute, the Court would not lend its weight to such an interpretation. See: Amalgamated Trustees Ltd. v. Associated Discount House Ltd. (2007) 15 NWLR (Pt. 1056) 118.”
3. WADATA ISAH V THE STATE (2018) 8 NWLR (PART 1621) 346 AT 361 B-C per BAGE, JSC who said:-
“The totality of the evidence presented in this case leaves this Court with little or no room to arrive at a different conclusion with the trial and lower Court. This stems from the fact that the duty of Court, is to interpret the statute in accordance with the intention of the lawmakers. In Ugwu v Ararume (2007) 12 NWLR (Pt. 1048) 367 at 498 paras. A-B this Court stated thus:-
“A statute, it is always said, is “the will of the legislature” and any document which is presented to it as a statute is an authentic expression of the legislative will.
The function of the Court is to interpret that document according to the intent of those who made it. Thus, the Court declares the intention of the legislature.”
The relevant sections or provisions of the law being interpreted must be read as a whole. See PDP VS HON. (DR) HARRY N. ORANEZI & ORS (2018) 7 NWLR (PART 1618) 245 at 257 H TO 258A per M. D. MUHAMMAD, JSC who said.-
“Now, a cardinal principle of interpretation we must not forget, which learned appellant’s counsel however seems to ignore, is that provisions of a statute, an instrument or indeed pleadings should not be read in isolation of the other parts of the statute, instrument or pleadings. In order to determine the intendment of the makers of the statute, instrument or pleadings, same should be read as a whole. Thus a clause in any of these must be construed together and with reference to the context and other clauses in the statute, instrument or pleadings in ensuring the discovery of a consistent meaning of the whole, here, the pleading being considered. See Oyeyemi v. Commissioner for Local Government (Kwara State) (1992) 2 SCNJ 266 at 280; (1992) 2 NWLR (Pt. 226) 661 and Astra Industry Nigeria Limited v. NBCI (1998) 3 SCNJ 97 at 115; (1998) 4 NWLR (Pt. 546) 357.” PER IGE, J.C.A.

WHETHER OR NOT THE COURT CAN MAKE A CASE FOR PARTIES

The Appellants’ learned Counsel further submitted that it is not open to the lower Court to ‘expand’ the law in the manner it did because the law is trite that unambiguous provisions of a legislation like Section 31 (3) of the Matrimonial Act are to be interpreted literally. That this principle is so trite that it requires no judicial authority to buttress. That the point being made, is simply that the lower Court strayed into the realm of speculations, which is not acceptable in law citing the cases of ADETORO V. OGO OLUWA KITAN TRA. CO. LTD (2002) 9 NWLR. (PT. 771) 157, 220, PARA E; IVIENAGBOR V. BAZUAYE (1999) 9 NWLR. (PT. 620) 552, 561, PARAS E-F; ORHUE V. NEPA (1998) 7 NWLR. (PT.557) 187, 200, PARAS C-D.
Furthermore, that the law is trite that a Court cannot make a case for either of the parties, referring to the cases of OSAZUWA V. EDO STATE CIVIL SERVICE COMMISSION (1999) 4 NWLR (PT. 597) 155; S.B.N V. M.P.I.E LTD (2004) 6 NWLR (PT. 868) 146 AND ADIMORA V. AJUFO (1988) 3 NWLR (PT. 80) 1. He quoted and relied on the case of IBWA LTD V. PAVEX INT’L CO. (NIG) LTD (2000) 7 NWLR (PT. 663) 105. PER IGE, J.C.A.

PETER OLABISI IGE, J.C.A. (Delivering the Leading Judgment): The Petitioner (now Respondent) in this appeal commenced her petition in this action on 1st February, 2017 at the High Court of the Federal Capital Territory Abuja holden at Abuja for a Decree of Dissolution of Marriage between her and MR. ETHASOR JOSEPH ABU, the reason being that the marriage has broken down irretrievably. At the lower Court the Petitioner now Respondent sought the following Reliefs/Orders:-
a) A DECREE OF DISSOLUTION OF THE MARRIAGE between the Petitioner and the respondent on the ground that the marriage between both parties have broken down irretrievably based on the facts that since the marriage, the respondent has committed adultery and the Petitioner finds it intolerable to live with the respondent; 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; that the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition and the respondent does not object to a decree being granted; lastly, that the parties to the marriage have lived apart for a continuous period of at least three years immediately preceding the presentation of the petition.
b) AN ORDER OF COURT awarding custody of the three (3) children of the marriage to the Petitioner with the Respondent allowed to have supervised visitation right to the children ONLY when the Petitioner or any other trusted adult is present. Adequate notice should be given to the Petitioner before such visits take place.
c) AN ORDER OF COURT mandating the respondent to pay into the Petitioner’s bank account the sum of N600,000.00 (Six Hundred Thousand Naira) only per annum representing the school fees for the 3 children of the marriage, to be paid at least a week before the resumption of any school year.
d) AN ORDER OF COURT mandating the respondent to pay into the Petitioner’s bank account the sum of N200,000.00 (Two Hundred Thousand Naira) monthly for the welfare of the 3 children of the marriage.
e) AN ORDER OF COURT mandating the respondent to pay for an accommodation in any good and conducive environment within Abuja Township where the Petitioner and the 3 children of the marriage will reside in.
f) The sum of N10,000,000.00 (Ten Million Naira Only) against CDR. ODUFA KADIRI sued herein as the co-respondent as damages for committing adultery with the respondent.”

The Appellants as Respondents at the lower Court in the said Petition filed Motion on Notice to enter appearance out of time and to file Answer and Cross Petition dated 29/3/2017. (See pages 19-24) of the Record. Respondents’ Memorandum of Appearance and Joint Answer and Cross Petition was dated 29/3/2017.

The matter proceeded to hearing at the conclusion of which the Federal Capital Territory High Court, Abuja gave considered judgment on Thursday 20th September, 2018 wherein the lower Court found among other things:-
“Finally, in relief no d, the Petitioner prays the Court to award the sum of N10,000,000.00 against the Co-Respondent as damages for adultery committed with the 1st Respondent.
Neither of the Respondents contested or joined issues with the Petitioner in this regard, the Court had earlier made a finding that the allegation of adultery was proved by the Petitioner. Section 31 of the Matrimonial Causes Act makes provisions regarding award of damages for adultery where proved. Section 31 (1) provides thus: –
“A party to a marriage, whether husband or wife may, in a Petition for a decree of dissolution of the marriage alleging that the other party to the marriage has committed adultery with a person or including that allegation, claim damages from that person on the ground that that person has committed adultery with the other party to the marriage and, subject to this section, the Court may award damages accordingly”.
Section 31 (2), (3) and (4) provides: –
“The Court shall not award damages against a person where the adultery of the Respondent with that person has been condoned, whether subsequently revived or not, or if a decree of dissolution of the marriage based on the fact of the adultery of the Respondent with that person, or on facts including that fact, is not made.
(3) Damages shall not be under this Act in respect of an act of adultery committed more than three years before the date of the Petition.
(4) The Court may direct in what manner the damages – awarded shall be paid or applied and may, if it thinks fit, direct that they shall be settled for the benefit of the Respondent or the children of the marriage”
By the foregoing provisions, the Court has been given a discretion to award damages for adultery against a person who has been proved to have committed adultery with the other party to the marriage so long as the act of adultery has not been condoned by the innocent party. The damages shall also not be awarded where the adultery was committed more than three years before filing of the Petition. Where awarded, the Court may direct for payment of it for the benefit of the innocent party or the children of the marriage.
In this Petition, the evidence of the Petitioner reveals that 1st Respondent has remained in an adulterous relationship with the Co-Respondent till date and she does not condone it. This being the case, there are valid grounds to award the damages. She has in this regard claimed N10,000,000.00 as damages against the Co-Respondent. Award of damages is always at the discretion of the Court taking into consideration the circumstances of the case and the injury presumed by law as suffered by the victim. The conduct of the 1st Respondent in this case in abandoning the Petitioner and his children and taking up living with the Co-Respondent who has begat a child for him is not only reckless and reprehensible but also smack of carnal rascality on the part of both of them. The Court condemns it in strong terms. It ought to be well damnified in damages to teach them a little lesson that it could be costly to engage in carnal rascality. All said, the Co-Respondent is ordered to pay damages assessed and fixed at N2,000,000.00 to the Petitioner. The Petitioner is at liberty as to how to use the money.
The Petitioner having emerged successful in this Petition shall be paid cost assessed and fixed at N50,000.00 by the Respondents.”

The Appellants were dissatisfied with this part of the decision of the lower Court delivered on the 20th day of September, 2018, and by their Notice of Appeal, dated 16/10/2018 appealed to this Court on four (4) grounds which with their particulars are as follows:-
1. PART OF THE DECISION APPEALED AGAINST:-
Part of the judgment awarding N2,000,000 damages against the Co-respondent (1st Appellant)
3. GROUNDS OF APPEAL
GROUND ONE
The learned trial Judge erred in law when he held as follows:-
“There is no gainsaying that by the Petitioner’s undenied evidence that the 1st Respondent has been living in the same household with the Co-Respondent and that union produced a baby girl, the evidence circumstantially proved an adulterous relationship between the Respondent and the Co-Respondent.
PARTICULARS OF ERROR
(i) A Court of law is not obligated to believe every piece of evidence simply because same was undenied.
(ii) The mere allegation of existence of a child is not sufficient to prove adultery.
(iii) There was no scientific evidence in the form of a DNA test before the Court to prove the fact that the 1st Respondent is in fact the putative father of the baby girl.
(iv) A Court can only rely on circumstantial evidence where same is compelling, conclusive and inexorably points to the conclusion reached.
(v) The learned trial Judge took extraneous matters into consideration.
(vi) In the premises, the decision of the Court affirming adulterous relationship is manifestly wrong and unsustainable in law.
GROUND TWO
The learned trial Judge misdirected himself in finding that the allegation of adultery was proved by the petitioner.
PARTICULARS OF ERROR
(i) The evidence led by the petitioner in proof of adultery is not enough to reasonably satisfy a Court as required by law.
(ii) The petitioner did not adduce any other evidence in proof of adultery other than that the appellants are living in the same household and that the union has produced a baby girl.
(iii) There was no evidence before the Court to prove that the 2nd appellant is in fact the biological father of the baby girl.
(iv) The evidence of the petitioner did not in any way negative the probability that the appellants could have been in a different relationship other than an adulterous union.
(v) The Court had materials upon which to make a different finding other than that of existence of adulterous union between the appellants
GROUND 3
The Learned Judge of the lower Court erred in law when he held that “In this Petition, the evidence of the Petitioner reveals that 1st Respondent has remained in an adulterous relationship with the Co-Respondent till date and she does not condole it.

This being the case, there are valid grounds to award damages”.
PARTICULARS OF ERROR
(i) The evidence on record in proof of adultery is not sufficient as required by law.
(ii) There was no evidence on record suggesting the date when the adulterous union if any, began and when the respondent found same intolerable.
(iii) There being no evidence as to the beginning of the alleged adulterous union, it cannot be correct that same continues till date as found by the Court.
(iv) In these circumstances, the lower Court cannot make a finding without any evidence supporting same.
GROUND 4
The Learned Judge of the lower Court erred in law when he made a finding that the 1st respondent indulged in carnal rascality and therefore excessively assessed and fixed the damages awarded against the Co-respondent at
PARTICULARS OF ERROR
(i) The finding of carnal rascality is wrong same not being supported by any piece of evidence whatsoever.
(ii) There was no evidence on record in proof of adultery as to justify the award of damages against the co-respondent.
(iii) Assuming but not conceding that adultery have been proved, the amount of damages awarded in the circumstances is excessive and outrageous.
(iv) The exercise of discretion in awarding the damages is perverse.
(v) The lower Court failed to consider the fact that the parties to the marriage “have been living apart since 2011 before the petition was filed on 1/2/2017, that is, a period of over 5 years in awarding the damages.
4. RELIEFS SOUGHT FROM THE COURT OF APPEAL
(i) An order allowing this appeal and setting aside the part of the decision of the High Court of the Federal Capital Territory, Abuja, contained in the judgment of the Honourable Justice Jude O. Okeke dated the 20th day of September 2018 awarding damages against the Co-respondent to the tune N2,000,000
(ii) An order setting aside the award of N2,000,000 damages against the Co-Respondent (1 st Appellant).

The Appellants’ Brief of Argument dated 31st day of January, 2022 was filed same date while the Respondent’s Brief of Argument was dated 23rd day of February, 2022 and also filed same date.

The appeal was heard on 14th day of March, 2022 when the learned Counsel to the parties adopted their Briefs of Argument.

DR. GOSPEL ADAMS, FIMC, who settled the Appellants’ Brief of Argument nominated three (3) issues for determination viz:-
“1. Whether the amount of N2,000,000 awarded as damages for adultery was unnecessary or excessive having regard to the fact that the couples had lived apart for over a period of 5 years before the petition was presented before the lower Court. (This issue has been formulated from Ground 4 of the Notice of Appeal);
2. Whether the lower Court was right to have solely relied on the respondent’s undenied evidence without more in holding that the appellants have been living in the same household; produced a baby girl and that same circumstantially proves the existence of adultery. (This issue has been formulated from Grounds 1 & 2 of the Notice of Appeal); and
3. Whether there was sufficient evidence on record to prove the case of adultery as required by law. (This issue has been formulated from Ground 3 of the Notice of Appeal).”

The learned Counsel to the Respondent, I. E. UZUEGBU, ESQ distilled two issues for determination of the appeal as follows:-
“1. Whether this appeal comes within the purview envisaged by law within which this Honourable Court can interfere with the damages awarded by the trial Court?
2. Whether the Respondent proved her case at the trial Court?”

This appeal shall be considered on the three issues formulated for determination by the Appellants and the three issues will be treated together.
“1. Whether the amount of N2,000,000 awarded as damages for adultery was unnecessary or excessive having regard to the fact that the couples had lived apart for over a period of 5 years before the petition was presented before the lower Court.
2. Whether the lower Court was right to have solely relied on the respondent’s undenied evidence without more in holding that the appellants have been living in the same household; produced a baby girl and that same circumstantially proves the existence of adultery.
3. Whether there was sufficient evidence on record to prove the case of adultery as required by law.”

Learned Counsel to the Appellants under issue 1 submitted that the extant position of the law is that damages for alleged adultery in a matrimonial petition shall not be awarded in respect of an adultery committed more than three years before the date of presenting the petition before the Court. He cited Section 31(3) of the Matrimonial Causes Act as making it abundantly clear as follows:
“Damages shall not be awarded under this Act in respect of an act of adultery committed more than three years before the date of the petition”

On when an appellate Court will interfere with award of general damages by the trial Court, learned Counsel said it is trite that an appellate Court will not ordinarily interfere with an award of damages by the lower Court but the appellate Court may however, interfere with the award of damages by a trial Court where it is satisfied that the trial Court in assessing the damages, applied a wrong law or a wrong principle of law such as taking into account some irrelevant factors or leaving out of account some relevant factors in assessing the damages awarded. He cited and relied heavily on the case of AFRIBANK (NIG) PLC V. A. L. INVEST LTD (2002) 7 NWLR (PT. 765) 40, 68 PARAS E-G PER ONNOGHEN J.C.A (as he then was). He also cited the cases of STIRLING CIVIL ENG. (NIG) LTD V. YAHAYA (2005) 11 NWLR (PT. 935) 181 AT 209-210 PARAS G-C PER EDOZIE, J.S.C.; UBN V. CHIMAEZE (2014) 58 (PT. 1) NSCQR 155 AT 188-189, KEKERE-EKUN, JSC enumerated the circumstances that would warrant interference with an award of general damages made by a trial Court as follows:
a. If the Court is satisfied that the trial Judge acted in the award of such damages, upon some wrong principle, or;
b. That the amount awarded was so large or so small as to make it a completely erroneous assessment of the damages, or
c. Where a finding of the trial Court is found to be perverse.

On when the decision of a Court will be regarded as perverse the Learned Counsel to the Appellants gave the judicial definition of the word perverse in the following cases of the Supreme Court;
1. EMEKA V. STATE (2014) 13 NWLR (PT. 1425) 614, 632, PARAS C-D.;
2. OKHUAROBO & ORS. V. CHIEF AIGBE (2002) 13 SCM 105 AT 133 PER AYOOLA JSC.

The grouse of the Appellants’ complaint under ground 4 of the notice of appeal against the decision of the lower Court to the effect that the “conduct of the 1st Respondent in this case is (sic) abandoning the Petitioner and his children and taking up living with the Co-respondent who has begat a child for him is not only reckless and reprehensible but also smack of carnal rascality on the part of both of them. That the Court condemns it in strong terms thereby awarded damages as a lesson that it could be costly to engage in carnal rascality, and the Co-Respondent was ordered to pay damages assessed and fixed at N2,000,000.00 to the Petitioner.”

That the foregoing unmistakably reveals that regardless of the trite position of the extant law as shown above, the lower Court awarded the whopping damages of N2,000,000.00 against the 1st appellant for alleged adultery in clear departure from the provisions of the law, particularly Section 31(3) of the Matrimonial Causes Act.

The Appellants submitted that while it is conceded that by virtue of Section 31(1) of the Matrimonial Causes Act, a petitioner can be entitled to damages from a third party who committed adultery with the Respondent and such third party joined in the petition as a Co-Respondent, however, Section 31(2) and (3) of the Matrimonial Causes Act enact very clear and inelastic exceptions to the general principle as found in Section 31(1) of the Act.

The two exceptions are in the main:
(i) where there has been condonation of the alleged adultery; and
(ii) where, (as in the instant case) the act of adultery was committed more than three years before the date of the petition.

He referred to Section 31 (1), (2) & (3) of the Act and quoted S. 31 (3) of the Matrimonial Causes Act.

That the lower Court patently erred in law having regard to the provision of S. 31 (3) of the Matrimonial Causes Act.

It is further submitted that the award of damages against the 1st Appellant ought not to have been made in the first place considering the length of time between when the Respondent alleged that the 2nd Appellant committed adultery with the 1st Appellant, the date when, (by the Respondents own showing) she moved out of the matrimonial home vis-a-vis the date the Respondent filed the Petition leading to this appeal.

Learned Counsel further stated that the lower Court had made a very lucid finding to the effect that the Respondent filed the instant petition after a period of 5 years when the couple have separated to that effect.

That another compelling reason for this Court to interfere and set aside the erroneous award of damages in the instant case is the fact that the lower Court took into account matters which it ought not to have taken into account in awarding damages in the instant case.

The Appellants’ learned Counsel also submitted that beyond the fact that this finding has no evidential support from the records, Section 31 (3) of the Matrimonial Causes Act does not admit of any such exception whatsoever. In the effect, the finding of the lower Court in this regard is, with respect, perverse citing the cases of EMEKA V. STATE (2014) 13 NWLR (PT. 1425) 614, 632, PARAS C-D and MOSES OKHUAROBO & ORS. V. CHIEF AIGBE (2002) 13 SCM 105 AT 133.

The Appellants’ learned Counsel further submitted that it is not open to the lower Court to ‘expand’ the law in the manner it did because the law is trite that unambiguous provisions of a legislation like Section 31 (3) of the Matrimonial Act are to be interpreted literally. That this principle is so trite that it requires no judicial authority to buttress. That the point being made, is simply that the lower Court strayed into the realm of speculations, which is not acceptable in law citing the cases of ADETORO V. OGO OLUWA KITAN TRA. CO. LTD (2002) 9 NWLR. (PT. 771) 157, 220, PARA E; IVIENAGBOR V. BAZUAYE (1999) 9 NWLR. (PT. 620) 552, 561, PARAS E-F; ORHUE V. NEPA (1998) 7 NWLR. (PT.557) 187, 200, PARAS C-D.

Furthermore, that the law is trite that a Court cannot make a case for either of the parties, referring to the cases of OSAZUWA V. EDO STATE CIVIL SERVICE COMMISSION (1999) 4 NWLR (PT. 597) 155; S.B.N V. M.P.I.E LTD (2004) 6 NWLR (PT. 868) 146 AND ADIMORA V. AJUFO (1988) 3 NWLR (PT. 80) 1. He quoted and relied on the case of IBWA LTD V. PAVEX INT’L CO. (NIG) LTD (2000) 7 NWLR (PT. 663) 105.

That the lower Court on page 103 of the record stated (and correctly so) that it had discretion to award damages “so long as the act of adultery has not been condoned by the innocent party” and that the “damages shall not be awarded where the adultery was committed more than three years before filing of the Petition. That unfortunately, the lower Court proceeded to ‘make a case’ for the Respondent to the effect that the “Respondent has remained in an adulterous relationship with the Co-Respondent till date and she does not condone it’, just to provide a bases for the award of damages. That the award of damages in the instant case was unnecessary and baseless.

That at this point, from decided authorities including the few highlighted above, the essence of award of damages in law is, not for the trial Court to ‘teach litigants a lessons (as the lower Court said in the instant case) but as compensation for what the successful party may have suffered. Learned Counsel cited and relied on the case of U.B.A PLC V. BTL IND. LTD (2004) 18 NWLR (PT. 904) 180.

That for there to be a justifiable award of damages, the circumstances of the case must be put into consideration. That the award of N2,000,000.00 to the Respondent on account of her allegation of adultery between the Appellants is grossly unnecessary, unreasonable and manifestly excessive, especially when juxtaposed with the fact that the Respondent had lived apart from the 2nd Appellant for more than five years before presenting the petition. That the decision of the lower Court in this regard is therefore, perverse and we urge this honourable Court to so hold and allow this appeal.

That the serial evidence of the Respondent as above is clear that the Respondent moved out of her matrimonial home on 5/8/2011 and that the Respondent presented the instant petition (wherein she raised the allegation of adultery against the Appellants) on 1/2/2017. That in respect of the evidence and facts above the lower Court awarded the N2,000,000.00 damages against the 1st Appellant based on a Petition that was presented after a period of more than three years after the allegation of adultery was made and they urge this Court to so hold and allow the instant appeal.

ON APPELLANTS’ ISSUE 2 as to whether the lower Court was right to have solely relied on the Respondent’s undenied evidence without more in holding that the appellants have been living in the same household; produced a baby girl and that same circumstantially proves the existence of adultery, learned Counsel submitted that the law is now firmly settled that the commission of adultery must be proved to the satisfaction of the Court, in establishing a standard evidence which must satisfy the Court as to the truth of the alleged adultery. That mere allegation of a Petitioner that the spouse committed adultery is not sufficient, without any direct evidence. He cited Section 82 of the Matrimonial Causes Act (MCA).

Learned Counsel summited that aside the mere allegation of the word adultery in the Respondent’s Witness Statement on Oath, that there is no scintilla of credible evidence before the trial Court that supports the claim of adultery. That the fact that the Appellants did not offer any evidence in rebuttal does not obligate the lower Court to accept every piece of evidence offered by the Respondent willy-nilly in the manner it did because a Court of law is not a robot and will never be at all citing S.P.D.C.N. LTD V. ORUAMBO (2012) 5 NWLR. (PT.1294) 591, 615, PARAS D-F.

Furthermore, that the position of the law in the adversarial system of justice is that the burden of proof in civil matters is on the Plaintiff/Claimant/Petitioner/Applicant as the case may be, to satisfy the Court by leading, concrete, cogent and valid evidence with a view to establishing his claim. He referred to the case of OREDOLA OKEYA V. B.C.C.I. (2014) 57 (PT. 1) NSCQR 230 AT P. 254- 255, PER I.T. MUHAMMED, JSC.

That allegation of adultery thus imposes a legal burden of proof as opposed to evidential burden of proof on the Petitioner to establish her case otherwise she loses her claim. He cited and relied on Sections 131(1) and 131 (2) of the Evidence Act, 2011, that failure to provide such mandatory proof is that such claim fails, citing Section 132 of the Evidence Act, 2011. He relied on the following cases:-
1. MBANEFO V. MOLOKWU (2014) 6 NWLR (PT. 1403), 377.
2. NAGEBU CO. (NIG) LTD V. UNITY BANK PLC (2014) 7 NWLR (PT. 1405) 42.
3. ADISA V. THE STATE (1991) 1 NWLR (PT. 168) 490, TOBI, J.C.A;
4. EJEZIE V. ANUWU (2008) 12 NWLR (PT. 1101) 446, ALAMIEYESEIGHA V. F.R.N (2006) 16 NWLR (PT. 1004) 1;
5. A.C.B V. NNAMANI (1991) 4 NWLR (PT. 186) 486; N.B.C V. OKWEJIMINOR (1998) 8 NWLR (PT. 561) 295, among others.

Learned Counsel also contended that the mere fact that a party to a marriage and a co-Respondent were living in the same house coupled with the change of name of the co-Respondent is not enough, in the absence of proof of any marriage which had been consummated, to prove adultery to justify granting of a claim for damages. He relied on the case of EKREBE V. EKREBE (1999) 3 NWLR (PT. 596) 514 PER MOHAMMED, J.C.A. AT PAGE 526, PARAS. E-G.

Learned Counsel dwelt much on the contention of making a valid proof with substantial evidence to sustain the allegation of adultery which must also include proof of sexual intercourse between the 1st and 2nd Appellants during the pendency of her marriage with 2nd Appellant and if none, such allegation must fail; citing numerous cases to found his argument and to close his argument. He relied on:-
1. NAMMAGI V. AKOTE (2021) 3 NWLR (PT. 1762) 170, 190, PARA PER ABBA-AJI, J.S.C;
2. ASHIRU V. OLUKOYA (2006) 11 NWLR CPT. 990) 1.
3. EMIRATES AIRLINE V. NGONADI (NO.1) (2014) 10 NWLR (PT. 1413) 429.
4. FAMFA OIL LTD. V. A-G., FED. (2003) 18 NWLR (PT. 852) 453; 473, PARAS. F-G.
5. OCHIN V. EKPECHI (2000) 5 NWLR: CPT. 6561 225, 240, PARAS F-G.
6. KANO V. MAIKAJI (2011) 17 NWLR (PT. 1275) 139, 173, PARAS C-E PER ORJI-ABADUA, J.C.A

APPELLANTS’ COUNSEL ARGUMENT UNDER ISSUE 3 – whether there was sufficient evidence on record to prove the case of adultery as required by law.

Issue 3 seeks the same answer from what is argued under issue 2 and therefore issue 3 is a reharsh of issue 2. Learned Counsel to the Appellants in totality of the arguments canvassed in his brief, urge this Court to allow this appeal and set aside the part of the judgment of the High Court of Justice of the Federal Capital Territory, Abuja division delivered by the Honourable Justice Jude O. Okeke, awarding the sum of N2,000,000 damages against the 1st Appellant on 03/9/2018 for being perverse.

In response to submissions under issue 1, Learned Counsel to the Respondent cited Section 31 of the Matrimonial Causes Act which provides thus;
“A party to a marriage whether husband or wife, in a petition for decree of dissolution of the marriage alleging that the other party to the marriage has committed adultery with a person or including that allegation, claim damages from that person on the ground that the person has committed adultery with the other party to the marriage and subject to this section, the Court may award damages accordingly.”

That the record of Proceedings clearly captured the fact that there was adultery committed by the Appellants which resulted in the birth of a child. That this fact was never contested by the Appellants at the lower Court and that this was succinctly captured by the trial Judge during in judgment thus;
“Neither of the Respondents contested or joined issues with Petitioner in this regard, the Court made a finding that the allegation of adultery was proved by the petitioner.”

That the Court of Appeal will not interfere with an exercise of the discretion by a Court of trial unless it is satisfied that it was not exercised judicially and judiciously and referred to the case of ANYAH V A.N.N. LTD (1992) NNLR (PT 247) 319.

That the crux of the Appellants’ appeal is predicated on the damages awarded by the trial Court. He also cited the case of BGP/CNPC INTERNATIONAL NIGERIA LIMITED & ANOR. V GOOD LUCK OKORO & ORS (2021) LPELR-55958 (CA).

Learned Counsel submitted that the 1st Appellant did not deny the fact that she was in a continuous adulterous relationship with the 2nd Appellant that resulted in the birth of a child and this particular act was part of the reason that resulted to the dissolution of the marriage between the 2nd Appellant and the Respondent hence the 1st Appellant has to compensate the Respondent for the damages.

That Section 31(3) of the Matrimonial Causes Act cannot avail the Appellants because the Respondent proved her case that the adulterous relationship of the Appellants was continuous up till the time the marriage was dissolved hence submitting that the damages awarded by the trial Court was proper referring the Court to the case of ISIAKA ISEZUO & ANOR. V CHIEF I. A. SANNI & ANOR (2013) LPELR-21974 (CA). That damages awarded by the trial Court was properly made hence Learned Counsel urge this Honourable Court to sustain same.

On whether the Respondent proved her case at trial Court? Learned Counsel to the Respondent relied on Supreme Court in the case of IBRAHIM SAKATI V JABULE BAKO & ANOR (2015) LPELR-24739 (SC) which define proof as;
“Proof is the means or process of establishing the truth of what is asserted by one side and denied by the other side of a dispute”

That proof in law, is a process by which the existence of facts is established to the satisfaction of the Court citing OLUFOSOYE V FAKOREDE (1993) 1 NWLR (PT 272) 747.

That the law is also trite that the three methods of evidential proof held by the Supreme Court in the case of OKASHETU V STATE (2016) LPELR-40611 (SC) are to wit: direct evidence of witnesses;
(b) circumstantial evidence; and (c) By reliance on a confessional statement of an accused person voluntarily made.

Learned Counsel to the Respondent submitted that in law of evidence, proof is not necessary if a fact is admitted and it may not also be necessary in a matter that the Court takes judicial notice under Section 74 of the Evidence Act, 2011, referring to the following cases:
1. ALHAJI ATIKU ABUBAKAR. GCON & ORS V ALHAJI UMARU MUSA YAR ADUA & ORS. (2008) LPELR- 51 (SC);
2. JACOB BOLAJI ADELUSOLA & ORS. V JOSEPH OLADIRAN AKINDE & ORS. (2004) LPELR-120 (SC);

Where learned Counsel stated it was held that burden or onus of proof presupposes the existence of a dispute and that, where there is no dispute, the parties are deemed to be ad idem, and proof of fact or facts in the pleadings no longer arises.

That the Record of Proceedings captured the evidence of the Respondent at the trial Court, and that Appellants never cross-examined the Respondents nor did they lead evidence to challenge the Respondent hence the evidence was not controverted, attacked or discredited. That what this means was that the Appellants admitted the evidence of the Respondent which was credible leaving the trial Court with no other option than to admit this evidence that was unchallenged. Learned Counsel to the Respondent therefore urge this Court to dismiss the instant appeal as lacking in merit and uphold the Judgment of the lower Court.

RESOLUTION OF ISSUES
The Appellants have contended that there was no basis for the award of N2,000,000 (Two Million Naira) damages awarded against them in that the Petition was not presented within the time stipulated by the Matrimonial Act Section 31(3) thereof.

The Appellants also stated that the lower Court was wrong in relying solely on Respondent’s evidence to found that there existed case of adultery against the Appellants and that there was no sufficient evidence on record to prove the case of adultery as required by law.

Section 31 of the Matrimonial Causes Act Cap M7 LFN 2004 provides as follows:-
“31. Claim for damages
(1) A party to a marriage, whether husband or wife, may, in a petition for a decree of dissolution of the marriage alleging that the other party to the marriage has committed adultery with a person or including that allegation, claim damages from that person on the ground that that person has committed adultery with the other party to the marriage and, subject to this section, the Court may award damages accordingly.
(2) The Court shall not award damages against a person where the adultery of the respondent with that person has been condoned, whether subsequently revived or not, or if a decree of dissolution of the marriage based on the fact of the adultery of the respondent with that person, or on facts including that fact, is not made.
(3) Damages shall not be awarded under this Act in respect of an act of adultery committed more than three years before the date of the petition.
(4) The Court may direct in what manner the damages awarded shall be paid or applied and may, if it thinks fit, direct that they shall be settled for the benefit of the respondent or the children of the marriage.”

The trite position of the law is that provisions of a statute must not be constructed in a way as would defeat the intendment of the statute and the desire of the Legislature. The Court should not interpret the provisions of the statute to defeat the obvious end it was meant to serve otherwise it will entail injustice. Where the words of the statute are plain and unambiguous the literal interpretation should be followed. See;
1. APC & ANOR V. ENGR. SULEIMAN ALIYU LERE & ANOR (2020) 1 NWLR (PART 1705) 254 AT 284 F-G per RHODES-VIVOUR, JSC who said:-
“Where the words used in a statute are clear and free from ambiguity they should be read and construed as it is without any interpretations or embellishments. The words should be given their ordinary meaning except where such a construction would be ridiculous, not logical and sensible. See A-G. Anambra State v. A.G. Federation (1993) 6 NWLR (Pt. 302) p. 692; Mobil v. F.B.I.R. (1977) 3 SC p.53; Toriola v. Williams (1982) 7 SC p. 27. The words used in the statute supra are clear and unambiguous. They should be given their plain ordinary meaning which is not in doubt.”
2.HON. HENRY SERIAKE DICKSON VS. CHIEF TIMIPRE MARKIN SYLVA &ORS (2017) 8 NWLR (PART 1567) 167 at 233 D – F per KEKERE-EKUN, JSC who said:
“The law is settled that in the interpretation of Statutes, where the words are clear and unambiguous, they must be given their natural and ordinary meaning. See: Ibrahim v. Barde (1996) 9 NWLR (Pt. 474) 513 AT 577 B-C; Ojokolobo v. Alamu (1987) 3 NWLR (Pt. 61) 377 AT 402 F-N. The exception is where to do so would lead to absurdity. See: Toriola v. Williams (1982) 7 SC 27 AT 46; Nnonye v. Anyichie (2005) 1 SCNJ 306 AT 316, (2005) 2 NWLR (Pt. 910) 623. Where an interpretation will result in breaching the object of the statute, the Court would not lend its weight to such an interpretation. See: Amalgamated Trustees Ltd. v. Associated Discount House Ltd. (2007) 15 NWLR (Pt. 1056) 118.”
3. WADATA ISAH V THE STATE (2018) 8 NWLR (PART 1621) 346 AT 361 B-C per BAGE, JSC who said:-
“The totality of the evidence presented in this case leaves this Court with little or no room to arrive at a different conclusion with the trial and lower Court. This stems from the fact that the duty of Court, is to interpret the statute in accordance with the intention of the lawmakers. In Ugwu v Ararume (2007) 12 NWLR (Pt. 1048) 367 at 498 paras. A-B this Court stated thus:-
“A statute, it is always said, is “the will of the legislature” and any document which is presented to it as a statute is an authentic expression of the legislative will.
The function of the Court is to interpret that document according to the intent of those who made it. Thus, the Court declares the intention of the legislature.”
The relevant sections or provisions of the law being interpreted must be read as a whole. See PDP VS HON. (DR) HARRY N. ORANEZI & ORS (2018) 7 NWLR (PART 1618) 245 at 257 H TO 258A per M. D. MUHAMMAD, JSC who said.-
“Now, a cardinal principle of interpretation we must not forget, which learned appellant’s counsel however seems to ignore, is that provisions of a statute, an instrument or indeed pleadings should not be read in isolation of the other parts of the statute, instrument or pleadings. In order to determine the intendment of the makers of the statute, instrument or pleadings, same should be read as a whole. Thus a clause in any of these must be construed together and with reference to the context and other clauses in the statute, instrument or pleadings in ensuring the discovery of a consistent meaning of the whole, here, the pleading being considered. See Oyeyemi v. Commissioner for Local Government (Kwara State) (1992) 2 SCNJ 266 at 280; (1992) 2 NWLR (Pt. 226) 661 and Astra Industry Nigeria Limited v. NBCI (1998) 3 SCNJ 97 at 115; (1998) 4 NWLR (Pt. 546) 357.”

Section 31(3) of the Matrimonial Causes Act must be read along with Section 96 of the same Act which defines date of Petition to mean:-
“date of Petition” in relation to a Petition means the date which the Petition was filed in or issued out of a Court.”

The contention of the Appellants is that the Petition and the findings of the trial Court shows that the period between the allegation of adultery and when the Petition was eventually presented was far more than the statutory limitation period of three (3) years vide Section 3(3) of the Matrimonial Cause Act.

The answer which the Respondent proffered for the decision of the lower Court in awarding damages for adultery committed by the Appellants can be found in paragraph 3.08 and 3.09 of the Respondent’s Brief where learned Counsel to the Respondent argued thus:-
“3.0.8 This particular Section 31(3) of the Matrimonial Causes Act can not avail the Appellants because the Respondent proved her case that the adulterous relationship of the Appellants was continuous up till the time the marriage was dissolved hence we submit that the damages awarded by the trial Court was proper. See the case of SIAKA ISEZUO ANOR. V CHIEF I. A. SANNI & ANOR (2013) LPELR-21974 (CA) where this Honourable Court held thus;
“I agree with the learned Respondent’s Counsel that an appellate Court will not interfere with the award of damages by a trial Court unless it is shown that the award was made on a wrong principle of law or that there was any injustice in making the award”
3.0.9 We submit respectfully, that damages awarded by the trial Court was properly made hence we urge this Honourable Court to sustain same.

Now, what was the finding of the learned trial Judge? The learned trial Judge found on page 99 of the record as follows:-
“The Court is equally satisfied that by the undenied evidence of the Petitioner that the parties have been living apart since 2011 and given the 1st Respondent’s prayer in his Cross Petition for grant a decree of dissolution of the marriage that the grounds provided for in Sections 15(2)(e) and (f) of the Act have also been proved by the Petitioner. This is particularly so as this suit was filed on 1st February 2017 and the interval between 2011 and 1st February 2011 is well over five years.”

On pages 101-102 of the record the lower Court found as follows:-
“Finally, in relief no d, the Petitioner prays the Court to award the sum of N10,000,000.00 against the Co-Respondent as damages for adultery committed with the 1st Respondent.
Neither of the Respondents contested or joined issues with the Petitioner in this regard, the Court had earlier made a finding that the allegation of adultery was proved by the Petitioner. Section 31 of the Matrimonial Causes Act makes provisions regarding award of damages for adultery where proved. Section 31 (1) provides thus: –
“A party to a marriage, whether husband or wife may, in a Petition for a decree of dissolution of the marriage alleging that the other party to the marriage has committed adultery with a person or including that allegation, claim damages from that person on the ground that that person has committed adultery with the other party to the marriage and, subject to this section, the Court may award damages accordingly”
Section 31 (2), (3) and (4) provides: –
“The Court shall not award damages against a person where the adultery of the Respondent with that person has been condoned, whether subsequently revived or not, or if a decree of dissolution of the marriage based on the fact of the adultery of the Respondent with that person, or on facts including that fact, is not made.
(3) Damages shall not be under this Act in respect of an act of adultery committed more than three years before the date of the Petition.
(4) The Court may direct in what manner the damages – awarded shall be paid or applied and may, if it thinks fit, direct that they shall be settled for the benefit of the Respondent or the children of the marriage”.
By the foregoing provisions the Court has been given a discretion to award damages for adultery against a person who has been proved to have committed adultery with the other party to the marriage so long as the act of adultery has not been condoned by the innocent party. The damages shall also not be awarded where the adultery was committed more than three years before filing of the Petition. Where awarded, the Court may direct for payment of it for the benefit of the innocent party or the children of the marriage.
In this Petition, the evidence of the Petitioner reveals that 1st Respondent has remained in an adulterous relationship with the Co-Respondent till date and she does not condone it. This being the case, there are valid grounds to award the damages. She has in this regard claimed N10,000,000.00 as damages against the Co-Respondent. Award of damages is always at the discretion of the Court taking into consideration the circumstances of the case and the injury presumed by law as suffered by the victim. The conduct of the 1st Respondent in this case is abandoning the Petitioner and his children and taking up living with the Co-Respondent who has begat a child for him is not only reckless and reprehensible but also smack of carnal rascality on the part of both of them. The Court condemns it in strong terms. It ought to be well damnified in damages to teach them a little lesson that it could be costly to engage in carnal rascality. All said, the Co-Respondent is ordered to pay damages assessed and fixed at N2,000,000.00 to the Petitioner. The Petitioner is at liberty as to how to use the money.

The finding with respect to award damages for adultery was made without jurisdiction.

The Respondent had pleaded that since marriage between her and the 2nd Appellant had committed adultery resulting in the Respondent moving out of the matrimonial home since 2011 precisely 3rd August, 2011 meaning the Appellants have been committing adultery between themselves since 2011 leading to birth of a baby girl. The Respondent specifically pleaded in paragraph 9(a) of her Petition on page 5 of the record as follows:-
“FACTS UPON WHICH PETITION IS BASED
9. The facts relied on by the Petitioner as constituting the ground specified above are as follows:
a) Since the marriage, the respondent has committed adultery and the Petitioner finds it intolerable to live with the respondent: For some years now, the Respondent has been involved in an adulterous relationship with the co-respondent which has even produced a baby girl. The co-respondent gave birth to the baby girl while the marriage between the Respondent and the Petitioner was still subsisting and due to this fact, the Petitioner finds it intolerable to live with the respondent. In fact, the Respondent and the co-respondent moved in together sometime last year and are currently living together under one roof without the Respondent taking any step to dissolve the marriage between him and the Petitioner. This affair between the respondent and the co-respondent was not in any way condoned by the petitioner.

And in her witness statement on oath the Respondent stated and deposed to in paragraph 17 (a) page 15 of the record as follows:-
“16. That in addition, the Respondent shall be responsible for the financial upkeep and welfare of the children of the marriage.
17. That the facts I rely on as constituting the ground specified above are as follows:
a) That since the marriage, the Respondent has committed adultery and find it intolerable to live with him: For some years now, the Respondent has been involved in an adulterous relationship with the co-respondent which has even produced a baby girl. The co-respondent gave birth to the baby girl while the marriage between the Respondent and me was still subsisting and due to this fact, I find it intolerable to live with the respondent. In fact, the Respondent and the co- respondent moved in together sometime last year and, are currently living together under one roof without the Respondent taking any step to dissolve the marriage between him and me. This affair between the respondent and the co-respondent was not in any way condoned by me.”

The marriage between the parties took place on 2/12/2000 as pleaded on page 3 of the record.

The Respondent as Petitioner instituted her Petition against the Appellants on 1st February, 2017 more than three years stipulated in Section 31(3) of the Matrimonial Causes Act. The claim for damages for adultery alleged against the Appellants was instituted outside the time prescribed by law. That aspect of her case was statute barred.

The lower Court was therefore wrong in awarding the sum of N2,000,000.00 (Two Million Naira) damages against the Co-Respondent.

Issues 1, 2 and 3 nominated for determination are hereby resolved in Appellants’ favour. The Appellants’ appeal succeeds and the Appellants’ appeal is hereby allowed.

An Order is hereby made allowing the appeal and setting aside that part of the decision of the lower Court contained in the judgment of HONOURABLE JUSTICE JUDE OKEKE delivered on 20th September, 2018 awarding damages against the Co-Respondent in the sum of N2,000,000.00 (Two Million Naira).
There will be no Order as to Costs.

HAMMA AKAWU BARKA, J.C.A.: My learned brother Peter Olabisi lge JCA, made available to me in draft the judgment just read in draft.

Having also read the grounds of appeal and the issues generated there from, as well as the submissions of learned counsel, I am satisfied that the issues that arose for determination were dutifully attended to and resolved. I agree that the issues in the circumstance be and are resolved in favour of the appellant to the inevitable conclusion that the appeal succeeds and it is hereby allowed. I endorse all orders made including the order made on costs.

MOHAMMED MUSTAPHA, J.C.A.: I have had the privilege of reading in advance, the judgment just delivered by my learned brother, PETER OLABISI IGE, JCA.

I equally agree with the reasoning and the conclusion that the Appellants’ appeal succeeds. I accordingly allow the appeal and abide by the consequential orders therein.