MR. ALEXANDER IBEABUCHI v. MRS. NNEKA IBEABUCHI (2016)

MR. ALEXANDER IBEABUCHI v. MRS. NNEKA IBEABUCHI

(2016)LCN/8454(CA)

In The Court of Appeal of Nigeria

On Thursday, the 31st day of March, 2016

CA/K/322/2012

RATIO

EVIDENCE: EVIDENCE OF WITNESSES; HOW IS THE CREDIBILITY OF THE EVIDENCE OF A WITNESS ASSESSED
In assessing the credibility of the evidence of a witness where the paternity of a child is in dispute, this Court, in the case of Megawalu v. Megawalu (1994) 7 NWLR (Pt. 359) P. 718, outlined what are to be considered. The Court said that a judge should give due regard to the following in assessing the credibility of a witness:
“(a) The opportunity of access for sexual intercourse between the husband and the wife at the material time;
(b) The physical condition of the husband at the material time;
(c) The opportunity of access for sexual intercourse between the wife and the third person:
(d) The time of birth and time of the sexual acts by each contestant; and
(e) Sometimes, blood tests of the parties, to confirm blood groups, (underlining mine)” PER IBRAHIM SHATA BDLIYA, J.C.A.
EVIDENCE: BURDEN OF PROOF; WHAT IS THE BURDEN OF PROOF IN CIVIL CASES
The law is trite, civil cases are proved on the preponderance of evidence or of the balance of probability. See Section 134 of the Evidence Act provides thus:
“The burden of proof shall be discharged on the balance of probability in all civil proceedings.” PER IBRAHIM SHATA BDLIYA, J.C.A.
COURT: HOW SHOULD COURT EXERCISE ITS JUDICIAL DISCRETION
It is trite that when a Court is called upon to exercise its discretion on an issue, it must ensure that it does not act arbitrarily but judicially and judiciously based on sound principle of law and by giving weight to relevant considerations – First Fuels Ltd Vs NNPC (2007) 2 NWLR (Pt 1018) 276. Discretion is a very fluid situation and when a Court is invited to exercise its discretion one way or the other, the Court has to take cognizance of the very facts of the case before it – Bello Vs Yakubu (2008) 14 NWLR (Pt 1106) 104. The Court’s discretion must be exercised so as to do what justice and fair play may require having regards to the facts and circumstances of each particular case – Mamman Vs Salaudeen (2005) 18 NWLR (Pt 958) 478. A Court must always exercise its discretion only on the basis of the materials placed before it and on no extraneous considerations – CFAO (Nig) Plc Vs Sanu (2008) 15 NWLR (Pt 1109) 1. PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
FAMILY LAW: ADULTERY; MEANING OF ADULTERY
Adultery has been defined as consensual intercourse between two persons of opposite sexes, at least one of whom is married to a person other than the one with whom the intercourse is had, and since the celebration of the marriage. Thus, to establish adultery, there must be sexual intercourse, the sexual intercourse must be voluntary and at least one of the parties must be married. Adultery must be proved strictly and clearly and the standard of proof is as required in civil cases. PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
FAMILY LAW: ADULTERY; CONDITIONS FROM WHICH ADULTERY CAN BE INFERRED
It is axiomatic that adultery is essentially an act which can rarely be proved by direct evidence. It is a matter of inference and circumstances. The law has thus set down certain conditions from which adultery can be inferred and these are (i) evidence of disposition and opportunity for sexual intercourse with a person other than the spouse; (ii) general cohabitation – where it is established that there is a state of general cohabitation between a man and a woman, adultery is presumed between them; (iii) confession and admission of adultery; (iv) entry in register of birth – entry of birth by the wife which omits the name of the child’s father or simply gives a name other than the husband amounts to an admission of adultery; and (v) frequent visits to hotels – Erhahon Vs Erhahon (1997) 6 NWLR (pt 510) 667 and Alabi Vs Alabi (2008) All FWLR (pt 418) 245. PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

JUSTICES

IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria

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

AMINA AUDI WAMBAI Justice of The Court of Appeal of Nigeria

Between

MR. ALEXANDER IBEABUCHI Appellant(s)

AND

MRS. NNEKA IBEABUCHI Respondent(s)

IBRAHIM SHATA BDLIYA, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Kano State High Court of Justice in suit No. K/410/2005 delivered on the 30th of March, 2012 by BAYERO, J. The appellant (Mr. Alexander Ibeabuchi) filed the petition against the respondent (Mrs. Nneka lbeabuchi) on the 8th of June, 2005.
The petition was amended on the 22nd of May, 2006. The petition was predicated on these grounds:
“(i) The marriage between the petitioner and the respondent has broken down irretrievable.
(ii) The marriage between the petitioner and the respondent has broken down irretrievably on the ground that the Respondent has willfully and persistently refused to consummate the marriage.
(iii) The respondent has behaved in such a way and manner that the petitioner cannot reasonably be expected to live with the respondent?.

The appellant (as petitioner) sought the following reliefs:
“(i) A decree of dissolution of the marriage
(ii) Exemplary and aggravated damages of N20,000,000.00 (Twenty Million Naira only) for committing adultery with Mr. Samson Chukwuma while the marriage between him (the

petitioner) and respondent was still subsisting?.

The respondent filed a Reply to the petition and cross-petitioned on the 18th of October, 2010, seeking these reliefs:
“(a) An order dismissing the petition.
(b) A decree of dissolution of marriage on the ground of cruelty, adultery, desertion by reason of which the marriage between the parties hereto has broken down irretrievably.
(c) An order compelling the petitioner to pay the costs of this action to the respondent.
(d) An order requiring the petitioner to make a lump-sum payment of N35,000,000.00 to the respondent or settling some of the petitioners assets listed in Paragraph 8(c) hereto on the respondent for herself and/or the sole child of the marriage.
(e) An order against Madam Uchechi to pay N5 Million damages to the respondent. Please see the Further-Further Amended Respondent’s Answer and Cross-petition at pages 119-127 of the Record.”

?The learned Judge of the lower Court, after hearing the petitioner and the respondent/cross-petitioner dismissed the appellant’s petition and granted the reliefs sought by the cross-petition/Respondent. Peeved and piqued by the

judgment of the lower Court, the appellant filed a notice of appeal to this Court on the 3rd of April, 2012, which was amended on the 26th of November, 2012, The appellant’s brief of argument was filed on the 21st of October, 2013. The respondent’s brief of argument was filed on the 14th of November, 2013. A Reply brief was filed by the appellant on the 24th of June, 2014. In the appellant’s brief of argument four (4) issues have been distilled from the grounds of appeal. The 4 issues formulated by the respondent in her brief of argument are not dissimilar. The 4 issues are thus:
“ISSUE ONE
Whether the award of the house No. 48 Sarki Yaki Road, Sabon Gari, Kano (which is the residence of the petitioner and his children from a previous marriage) and monetary damages to the cross-petitioner/ respondent was fair and just in the circumstances of this matter especially when the respondent has not made out her case to be entitled to same? (Distilled from Ground 2)
ISSUE TWO
Whether in the light of the fact that the issue of paternity was hotly contested in this matter, the learned trial Court ought to have determined the paternity of little Anointed

lbeabuchi (so named by his mother) without a recourse to a DNA test (From Ground 3).
ISSUE THREE
Whether the trial Court validly assumed jurisdiction to entertain the Respondent’s Cross petition in this matter (Distilled from Ground 1)
ISSUE FOUR
Whether the learned Judge was right when he held that exhibit 1(b) without certificate of marriage duly issued under the Ad is not enough evidence to prove that the respondent was married to Mr. Samson Chukwuma and also does not constitute the ingredient of the offence of adultery (From Grounds 4 & 5).”

RESOLUTION OF ISSUES
The issues are hereunder taken and resolved seriatim.
ISSUE 1
On this issue, DURU Esq., of learned counsel, did submit that the learned trial Judge of the lower Court was in error in awarding property No. 48, Sarki Yaki, Nomaonds Land, Kano, to the respondent/cross appellant there being no credible evidence to warrant the award which is not just, fair nor equitable in the circumstance of the case. That the facts and circumstances of the case before the lower Court do not fall with the ambit of Section 72 (2) of the Matrimonial Causes Act, which the

learned trial Judge of the lower Court wrongly applied.

Learned counsel pointed out that in order to be entitled to any property of a marriage when the marriage has been dissolved, there must be evidence that the person seeking to benefit contributed to the acquisition of such property.

Counsel contended that the respondent/cross-appellant did not contribute to the acquisition of the property which was acquired by the appellant before the marriage with her. It has been further argued that in order to be entitled to any property after the dissolution of a marriage, the person claiming must adduce cogent evidence in support of such claim.
The cases of Menakaya vs Menakaya (2001) FWLR pt. 76 p. 724 and Shobowale vs. Shobowale (1969) 1 All NLR p. 278, cited to buttress the submissions supra. Counsel did urge that Issue 1 be resolved in favour of the appellant.

?Uzuegbu Esq., contended that the respondent did contribute to the business and upkeep of the matrimonial home during the subsistence of the marriage, therefore, the learned trial judge was right in granting the said property to her. That evidence of joint purchase or development of the

property is not essential for making an order as the lower Court did. The case of Kafi v. Kafi (1986) 3 NWLR (Pt. 27) P. 175 cited in aid. It has been further contended that the learned trial judge of the lower Court property interpreted and applied the provisions of Section 72 of the Matrimonial Causes Act when the property was given to the respondent.

As to the propriety of awarding of the property to the respondent, counsel contended that it is just, fair and equitable having due regard to the facts and circumstance of the marriage between the appellant and the respondent, and what led to the dissolution of same.

As to what is just, fair and equitable, counsel submitted that it is within the discretion of a judge on the facts and evidence adduced, whether another Judge would have decided otherwise is immaterial. This Court has been urged not to interfere with or disturb the exercise of discretion by the learned judge of the lower Court. The case of M & B Electrical Co. Ltd v. Govt- Cross- River State (2005) All FWLR (Pt. 284) P.350 @ 366 cited to reinforce the submission supra. In conclusion, Counsel did urge this Court to hold that the lower

Court rightly awarded No. 48, Sarki Yaki Road, Kano to the Appellant and Master Anointed Ibeabuchi, the only child of the Marriage. This Court has been urged to resolve Issue 1 against the Appellant and affirm the award by the lower Court.

?Section 72 (1) of the Matrimonial Causes Act, provides thus:
“the Court may, in proceedings under this Act by order require the parties to the marriage or either of them to make for the benefit of all or any of the parties to and the children of the marriage such a settlement of property to which the parties are or either of them is entitled (whether in possession or reversion) as the Court consider just and equitable in the circumstances of the case”
The purport of the Provisions of Section 72 of the Matrimonial Causes Act, is that it must be as the Court considers it just and equitable for the benefit of all or any of the parties. Settlement of property is therefore based on what the Court considers to be just and equitable in the circumstance of any particular case. In the instant case, did the learned trial Judge of the lower Court decided what is just and equitable having regard to the peculiar facts and

circumstances and the evidence placed before him, when he held on page 361 of the printed record of appeal that:
“settlement of property is therefore based on what the Court considers just and equitable in the circumstances of a particular case. The issue for determination therefore is what is just and equitable in the circumstance of the present case under Section 72(1) of the Matrimonial Causes Act? The Respondent in this case has a son for the Petitioner as earlier held in this judgment. Furthermore, when the going was good she contributed to the maintenance and upkeep of the matrimonial home and I so hold. It is for the above reasons that the Petitioner is hereby ordered to give to the Respondent, the storey building at No. 48, Sarki Yaki, Kano for herself and the sole child of the marriage, Anointed Master lbeabuchi’ ”

?In determining what is just and equitable the Court has a wide discretionary power to exercise and what it is immaterial that another judge would have done it in a different way or would have considered a different arrangement to be just and equitable. In the instant case, the lower Court based its award of the property No. 48 Sarki Yaki

Sabon Gari Kano, on a finding that the respondent gave birth to a son during the marriage, and contributed to the maintenance and upkeep of the matrimonial home while the marriage subsisted. Furthermore, the lower Court found that the only property which the appellant owned is No. 48, Sarki Yaki, Sabon Gari, Kano. In the circumstances of the fore-going, is it just, fair and equitable to award the house to the respondent?

I am not unmindful of the decision of this Court in M & B Electrical Co. Ltd v. Govt. Cross-River State (2005) All FWLR pt. 284 p, 350 @ 366 that:
“Provided a trial Court has exercised its discretion judicially and judiciously, an appellate Court would not interfere with such exercise of discretion by the trial Court merely because it would have exercised the discretion differently if it had been in the position of the trial Court”

But, the evidence adduced before the lower Court are that the marriage between the appellant and the respondent did not last for a long period; The respondent could not have contributed to the development or the acquisition of the house No. 48 Sarki Yaki, Kano to warrant the decision of the lower

Court awarding same to her. Also, it is in evidence that the appellant was, living in the house with 3 children of a previous marriage. The respondent did not adduce evidence that the appellant owned a house or houses apart from No. 48 Sarki Yaki Sabon Gari, Kano. Is it therefore just, fair and equitable, in the circumstances, to award the house to the respondent? I do not think so. It is for this reason that I find it imperative to disturb the award of the said house to the respondent. The justice of the case demands that the appellant who acquired the house during the subsistence of a previous marriage (that is before the marriage with the respondent), and living with him are 3 children, should not have been deprived of the house in which they were residing.

?I am in agreement with the submission Duru Esq., of learned counsel to the appellant, that the learned trial judge’s exercise of discretion was influence by sympathy and sentiments in favour of the respondent. The law is trite sympathy and sentiments have no place in the administration of justice. That a Court of law should not based its decision on sympathy or sentiments has been reinforced in the

case of Onwunala v. Uche (2010) 2 NWLR (Pt.1179) P. 582 @ 608 wherein it was held thus:
“it would appear that learned trial Judge with due respect to his lordship was perhaps swayed by sentiments having regard to the extent of the 1st Respondent injuries. The finding of the learned trial Judge is not borne out by the evidence before the Court. In such circumstances, this Court is entitled to interfere… Having failed to proven a breach of the duty of or the question of assessment of damages did not arise.”

For the foregoing reasons, I find it necessary to interfere with the exercise of discretion by the learned trial judge of the lower Court, for it has not been carried out judicially and judiciously, in the overall interest of justice, fairness and equity. Issue 1 is hereby resolved in favour of the appellant.

ISSUE 2
Whether the learned trial judge of the lower Court was right in holding that Master Anointed Ibeabuchi is a legitimate child of the appellant having regard to the totality of the evidence adduced at the trial. On this issue Duru Esq, submitted that Anointed Ibeabuchi was born on the 15th of December, 2005 whereas the

respondent claimed to be pregnant in May 2005. That it was impossible for the child to have been born within a period of 6 – 7 months. In order to determine the paternity of Anointed Ibeabuchi; learned counsel contended that DNA test ought to have been performed. The cases of Adeyemi v. Abayomi (2002) FWLR pt. 332 p. 136 and R.A. Myren & C.H. Garcia on Investigation for Determination of Facts, A Primer on Proof (1989) P.77 was cited to buttress the submission supra. Learned counsel also cited and relied on the case of Megavwalu v. Megavwalu (1994) 7 NWLR (Pt. 359) P. 718 wherein the Court outlined the test for assessing the credibility of evidence adduced in proving paternity of a child. Learned counsel further contended the evidence that Anointed Ibeabuchi is a legitimate child of the appellant is speculative, unreliable which cannot support the decision of the lower Court. Counsel did urge that this issue be resolved in favour of the appellant.

?Uzuegbu Esq., of the learned counsel, submitted one that the marriage between the appellant and the respondent last for one and a half years, not eight (8) months as asserted by the appellant. Counsel

submitted that the evidence adduced by the respondent that she lived in the appellant and consummated the marriage during which he got pregnant 3 times has not been controverted. That there is presumption Anointed Ibeabuchi is a legitimate child of the appellant having been born during the subsistence of the marriage. Learned counsel cited and relied on Section 165 of the Evidence Act which raises the presumption that a child born during the subsistence of a marriage or, so soon thereafter, is a child of the marriage. The cases of Ellimeze v. Ellimeze (1969) All NLR P. 301 @ 307 and Umeri v. A. G. Imo State (1995) 4 NWLR (Pt. 391) P. 552 @ 558 cited to buttress the submissions supra.

As to the desirability to perform DNA test to determine the paternity of a child, counsel argued that it is not so. That the paternity of a child can be determined without carrying out a DNA test, more especially where the man and the woman had lived for long together as husband and wife. Counsel urged that issue 2 be resolved against the appellant.

On page 39 of the printed record of appeal the learned trial judge of the lower Court held thus:
“.. in the present

case before the Court, master Anointed lbeachuchi was born during the continuance of the valid marriage between the Petitioner (PW1) and the Respondent (DW2) and I so hold. As such, that child, Anointed lbeabuchi is the legitimate child of the Petitioner and I so hold…”

I agree with the submission of Duru Esq., that the paternity of a child can be determined by DNA test, as enunciated in the cases of Adeyemi v. Abayomi (2002) FWLR (Pt. 132) P. 136, but, DNA is not the only way to determine the paternity of a child. Section 165 of the Evidence Act provides thus:
“Without prejudice to Section 84 of the Matrimonial Causes Act where a person was born during the continuation of a valid marriage between his mother and any man or within 280 days after dissolution of the marriage, the mother remaining unmarried the Court shall presume that the person in question is the legitimate child of that man.”
In Ellimeze v. Ellimeze (1969) 1 All NLR page 301 @ 307, it was held that “Section 165 of the Evidence Act means no more than what it says” The respondent as DW2 testified at the lower Court on the marriage between her and the appellant thus:
“He came

to my family house and met my parents and said he was no longer interested in the marriage. My parents were annoyed. I told them I was pregnant. He said we should go for the second test. He sent his in-law Mr. Godwin Moronu to take me to the hospital. He took me to a lab. They conducted the test using my urine as sample. They said it was negative that I was not pregnant. I protested and said I should be taken to a Hospital. The same person took me to a Hospital, ultra-sound test was conducted and I was 3 months pregnant and the result was given to Moronu. He photocopied and took the original to the Petitioner. The Petitioner is the father of my child. I have no doubt to that?.

The above evidence of the respondent has not been controverted by the appellant. In assessing the credibility of the evidence of a witness where the paternity of a child is in dispute, this Court, in the case of Megawalu v. Megawalu (1994) 7 NWLR (Pt. 359) P. 718, outlined what are to be considered. The Court said that a judge should give due regard to the following in assessing the credibility of a witness:
“(a) The opportunity of access for sexual intercourse between

the husband and the wife at the material time;
(b) The physical condition of the husband at the material time;
(c) The opportunity of access for sexual intercourse between the wife and the third person:
(d) The time of birth and time of the sexual acts by each contestant; and
(e) Sometimes, blood tests of the parties, to confirm blood groups, (underlining mine)”

The law is trite, civil cases are proved on the preponderance of evidence or of the balance of probability. See Section 134 of the Evidence Act provides thus:
“The burden of proof shall be discharged on the balance of probability in all civil proceedings?.

On the totality of the evidence adduced by the appellant and the respondent on the paternity or legitimacy of Anointed Ibeabuchi, (the child of the marriage) the respondent has proved her case on the balance of probability. The learned trial judge of the lower Court was right when he held on page 359 of the record of that Master Anointed Ibeabuchi was born during the subsistence of the valid marriage between the appellant and the respondent. Issue 2 is hereby resolved against the appellant.

ISSUE 3<br< p=””

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Whether the learned trial judge of the lower Court was right in assuming jurisdiction over the cross-petition by the respondent as cross-petitioner. On this issue, Duru Esq., of learned counsel, submitted that a trial Court cannot assume jurisdiction over a matter where there is none. The case of Ohakim v. Agbaso (2010) 7 SCNJ P. 137 @ 199 cited to buttress the submission supra. Counsel contended that the respondent did not pay the appropriate fees for the cross-petition, therefore, the lower Court had no jurisdiction in entertaining the cross-petition, for a condition precedent to the exercise of jurisdiction had not been satisfied. The case of Jegal v. Pharma Ltd v. Hassan (2008) 14 WRN P.160 @ 182 cited to reinforce the submission supra. That by not paying the appropriate Court fees the lower Court was robbed of the jurisdiction to hear and determine the suit before instituted by the Cross-petitioner/Respondent. The case of Itok v. Thomas (2011) 7 WRN P. 144 P. 160 cited in aid. The Court has been urged to hold that the lower Court had no jurisdiction in hearing and determining the cross-petition filed by the respondent. That issue 3 be resolved

accordingly.

Uzuegbu Esq., submitted that the respondent as cross-petitioner paid the fees which was assessed by the registrar of the lower Court. Counsel pointed out that even if the amount paid was wrongly assessed, the respondent cannot be blamed, for the law is trite, a litigant can not suffer the incompetence of an officer or the any wrong doing or improper action not committed by him. The cases of Buhari v. Obasanjo (2003) 17 NWLR (Pt. 850) P. 423; Augusiobu Onyekelu and Akaji v. Udemba (2003) 6 NWLR (Pt. 815) P. 179 cited to buttress the submission supra. Counsel urged the Court to resolve issue 3 against the appellant, and to hold that having paid the fees as assessed by the registrar of the Court, the respondent paid the appropriate fees.

The law is trite, payment of Court filing fees for a matter to be instituted in a Court of law is a condition precedent to the assumption of jurisdiction by Court of law as held in the case of Onwagbufor v. Okoye (1996) 1 NWLR (Pt. 424) P. 252. But, assuming the respondent as cross-petitioner did not pay the correct filing fee, can that per se divest the lower Court of the jurisdiction to entertain the

suit. What is important is that the respondent paid the fees as assessed by the registrar. If the registrar under-assessed the amount to be paid, that per se cannot be a ground to divest the lower Court the jurisdiction to hear the suit. Once any amount of filing fees as assessed by the registrar of Court, has been paid, that suit is deemed to have been rightly filed, and the Court has the jurisdiction to entertain same. The foregoing reasonings and conclusion have the support in the Court?s decisions in the cases of Akaji v. Udemba (2003) 6 NWLR (Pt. 815) P. 179 @ 181, where Ubaezonu J.C.A (as he then was) held that:
“It is a correct statement of the rule of law that the Court process on which a fee is payable shall not be issued unless and until the appropriate fee payable on the process has been paid… The failure to pay the fee was not a mistake on the part of the Respondent … The Registrars were paid fully. If the Registrar failed to collect the full or appropriate fee, it is not a matter for which a party should be penalized… The Respondent failed to pay the necessary fee for the counter-claim through no fault of his?.
?The law

is trite, in determining whether a Court of law has the jurisdiction to entertain a matter or not certain condition are to be satisfied as enumerated in the case of Ohakim v. Agbaso (2010) 7 SCNJ P. 137 @ 199 thus:
“All law Courts or Tribunals, while exercising the powers, must be guided by the general determinants of jurisdiction : –
(a) the statute establishing the Coutts/Tribunal;
(b) the subject matter of litigation;
(c) the litigating parties;
(d) the procedure by which the case is initiated;
(e) proper service of Process;
(f) territory where the cause of action arose or as the case may be where the Defendant resides;
(g) composition of the Court/Tribunal?.

The appellant has not been able to show which of the conditions the respondent failed to satisfy when she filed a Reply to the petition and her cross-petition at the lower Court. Consequently, issue 3 is hereby resolved against the appellant.

ISSUE 4
Whether the appellant proved the allegation of adultery against the respondent as required by law. On this issue Duru Esq., did submit that the learned trial Judge of the lower Court erred in law

when he held that the appellant failed to adduce credible evidence proving the allegation of adultery by the respondent when married to the appellant. Learned counsel pointed and that by Exhibit 1(a) and 1(b) and the evidence of Mr. Lawrence Nwachi who testified that he saw the respondent with Mr. Samson Chukuma at a hotel at late hours. That Customary law marriage is recognized by law as held in the case of Odutola v. Sanya (2008) 47 WRN P. 170 @ 190. Learned counsel further submitted that the lower Court erred in law when it held that since PW1, (Lawrence Nwachi) did not with the respondent and Samson Chukuma having sexual intercourse, the allegation of adultery has not be proved in law. In conclusion, learned counsel urged the Court to re-evaluate the evidence adduced by the appellant on the allegation at adultery and arrive at a just decision because the lower Court?s decision cannot be supported by the evidence. That being the case, the decision is perverse which occasioned a miscarriage of justice to the appellant. That a decision which is not predicated on the evidence is perverse occasioning a miscarriage of justice, which can be set aside has

the support of the Courts in a litany of judicial pronouncements, such as Oyewole v. Akande (2009) 7 SCNJ P. 225 @ 239. Concluding, learned counsel urged the Court to resolve issue 4 in favour of the appellant having adduced credible evidence proving the commission of adultery by the respondent.

Uzuegbu Esq., for the respondent, did contend that the appellant did not plead the issue of adultery in the petition. That evidence adduced without pleadings to support it, is inadmissible, and if admitted the Court cannot ascribe evidential value to it in the decision making. Counsel further submitted that the evidence of PW1 and PW2 that the respondent was seen with Mr. Samson Chukuma at a Hotel at odd times cannot be reliable evidence on which a Court of law can rely on to convict for committing adultery.

Learned counsel referred to the evidence of the respondent on pages 32-33 of the record of appeal and submitted that appellant has not controverted same, therefore, the lower Court was justified when it relied on same in arriving at its decision that the respondent did not commit adultery. Counsel referred to Section 388 of the Penal Code, which provides

for the offence of adultery and submitted that, the learned trial Judge of the lower Court was right in his decision that no evidence was adduced to prove the offence by the respondent. That Exhibit 1(a) and 1(b) the Invitation card for a traditional wedding and a photograph of the respondent and Mr. Samson Chukuma cannot be relied on as evidence of committing adultery by the respondent. Concluding, counsel urged the Court to resolve issue 4 against the appellant.

Section 388 of the Penal Code provides as follows:
“Whoever being a woman subject to native law or custom had extra marital sexual intercourse with a person who is not and who she knows or has reason to believe is not her husband is guilty of the offence of adultery?.

The appellant relied on the evidence of PW2, Mr. Lawrence Nwachi who testified at the lower Coutt thus:
“I saw the Respondent (Mrs Nneka) outside Prince Hotel with a man, I passed by and did not call her. The next day I went to finish my job and I saw her at the same spot with the same man… I saw the Respondent with a man twice in front of the hotel”.

The appellant also relied on Exhibit 1(a) and 1(b) an

invitation card to traditional wedding and a Photograph of Mr. Samson Nwachi. The respondent, in her defence, testified as follows as recorded on pages 32-33 of the record of appeal.
“I have never had any marriage before marrying the petitioner. I do not know Samson Chukwuma. The Petitioner did not allege adultery in his first petition. He never accused me of adultery throughout my stay with him. I never committed adultery. We did our church wedding at St. Paul’s Anglican Church, in Kano. Before the marriage they made an announcement that Mr. A wants to marry B if anyone had objection he should raise it. It was made 21 days before the wedding. It was made in our local church St. Paul’s Anglican Church Oba and Kano. My family and petitioner’s family attend the same St. Paul’s church in Oba. There has never a been any traditional marriage between me and Chukwuma and if there was the village people would know.”

On page 362 of the record of appeal the learned trial Judge of the lower Court held thus:
“The Court observes that Exhibit it 1(b) does not prove the ingredient of the offence of adultery neither did the Petitioner (PWI) or PW2 said they saw

the Respondent having sexual intercourse with Mr. Samson Chukwuma and so hold.”

The learned trial Judge was right in his decision supra, because:
(i) PW2, Mr. Nwachi, did not see the respondent having sexual intercourse with Mr. Samson Chukwuma.
(ii) Even if, PW2 saw the respondent with Mr. Chukwuma in front of a Hotel, that per se cannot be evidence of committing adultery.
(iii) Exhibits 1(a) and 1(b) the invitation card and photograph of Mr. Chukuma cannot be evidence on which a Court can rely on to convict any person for committing adultery under Section 388 of the Penal code.
(iv) The evidence of the respondent recorded on pages 32-33 of the record of appeal, which have not been contradicted, completely discredited the evidence of the appellant on the allegation of committing adultery while being married to him.

The decision of the learned trial Judge on pages 362 of the record of appeal that the allegation of adultery has not been proved by the appellant is not perverse because the said decision has been predicated on the credible and cogent evidence before the Court.

?Consequently, issue 4 is resolved against the

appellant. In the result, having resolved issue 1 in favour of the appellant, the appeal partially succeeds. The decision of the learned trial Judge of the lower Court in awarding House No. 48 Sarki Yaki Road, Sabon Gari, Kano, to the respondent is hereby set aside. If the respondent has taken possession of the said house, she is to give up possession forth-with to the appellant. I make no order as to costs of the suit. Each party to bear the costs of prosecuting his/her appeal to this Court.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother, Ibrahim Shata Bdliya, JCA. His Lordship has ably considered and resolved the issues in contention in this appeal. I agree with and abide the conclusion reached and the final orders contained therein. I only wish to comment on two of the issues agitated in this appeal.

?The first issue contended by the Appellant in this appeal was against the order made by the lower Court awarding the house, No. 48, Sarki Yaki Road, Sabon Gari, Kano to the Respondent. The property was the matrimonial home of the parties for the duration

of the marriage. In making the award, the lower Court referred to the cases of Kafi Oladele Kafi Vs Eunice Abimbola Kaffi, (1986) 3 NWLR (Pt. 27) 175 and, Doherty Vs Doherty (2010) All FWLR (Pt 519) 1165 and stated in the judgment thus:
?Settlement of property is therefore based on what the Court considers just and equitable in the circumstances of a particular case. The issue for determination therefore is what is just and equitable in the circumstances of the present case under Section 72(1) of the Matrimonial Causes Act? The respondent in this case has a son for the petitioner as I earlier held in this judgment. Furthermore when the going was good she contributed to the maintenance and upkeep of the matrimonial home and I so hold. It is for the above stated reasons that the petitioner is hereby ordered to give to the respondent the storey building at Number 48, Barkin Yaki, Kano for herself and the sole child of the marriage Anointed Master Ubeabuchi.”

Section 72 of the Matrimonial Causes Act dealing with settlement of property states:
“1. The Court may, in proceedings under this Act, by order require the parties to the marriage, or either

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

It is trite that when a Court is called upon to exercise its discretion on an issue, it must ensure that it does not act arbitrarily but judicially and judiciously based on sound principle of law and by giving weight to relevant

considerations – First Fuels Ltd Vs NNPC (2007) 2 NWLR (Pt 1018) 276. Discretion is a very fluid situation and when a Court is invited to exercise its discretion one way or the other, the Court has to take cognizance of the very facts of the case before it – Bello Vs Yakubu (2008) 14 NWLR (Pt 1106) 104. The Court’s discretion must be exercised so as to do what justice and fair play may require having regards to the facts and circumstances of each particular case – Mamman Vs Salaudeen (2005) 18 NWLR (Pt 958) 478. A Court must always exercise its discretion only on the basis of the materials placed before it and on no extraneous considerations – CFAO (Nig) Plc Vs Sanu (2008) 15 NWLR (Pt 1109) 1.

It is also trite that an appellate Court does not make a habit of interfering with the exercise of discretion by a lower Court. It will only do so where it is shown that the lower Court exercised its discretion wrongly; that the discretion was not exercised judicially, i.e. that the discretion was exercised in an arbitrary manner and without due regard to all relevant considerations of necessary factors or on reliance upon wrong principles – National Bank of Nigeria

Ltd Vs Guthrie (Nig) Ltd (1993) 3 NWLR (Pt 284) 643 and Statoil (Nig) Ltd Vs Star Deep Water Petroleum Ltd (2015) 16 NWLR (Pt 1485) 361.

Thus, the question that arises is whether the lower Court exercised its discretion judicially and judiciously when it awarded the property of the Appellant at No. 48, Sarki Yaki Road, Sabon Gari, Kano to the Respondent under the settlement of property principles. Two the most firmly established guidelines that Courts are enjoined to take into consideration in determining a question of settlement of property is whether or not the property in question or some other property was acquired by the parties or by one of the parties during the course of the marriage, and if so, what was the contribution of each party to the cost of acquisition. These guidelines are implicit in the decisions in the cases of Rimmer Vs Rimmer (1952) 2 All ER 863, Coker Vs Coker (1964) LLR 188, Amadi Vs Nwosu (1992) 6 SCNJ 59, Egunjobi Vs Egunjobi (1974) 4 ECSLR 552, Aderounmu Vs Aderounmu (2003) 2 NWLR (Pt 803) 1, Mueller Vs Mueller (2006) 6 NWLR (Pt.977) 627, Oghoyone Vs Oghoyone (2010) LPELR-CA/L/26/2003. It is correct that the contribution of a

party does not necessarily have to be in the nature of a cash outlay for the purchase or development of the property. It can be by way of moral and/or financial contribution to the business of a husband by a wife where the property is purchased from the profits of the business – Sanders Vs Sanders (1967) 116 CLR 366, Watchel Vs Watchel (1973) All ELR 829, H Vs H (Financial Provisions: Marriage) (1975) 1 All ER 367, Kafi Vs. Kafi (1986) 3 NWLR (Pt.27) 175. It is however essential that the properly should have been purchased in the course of the marriage or where the property was purchased before the marriage, that the payment for the property was completed after and in the course of the marriage, as in the case of a property purchased on mortgage.

?In the present appeal, there was clear evidence from the Respondent herself that all the properties that she claimed that the Appellant owned, inclusive of the No. 48, Sarki Yaki Road, Sabon Gari, Kano awarded to her by the lower Court, were purchased either by the Appellant or by the Appellant’s company before her marriage to the Appellant. None of the properties was purchased after the marriage between the

Appellant and the Respondent. Thus, whatever contribution that the lower Court found that the Respondent made “to the maintenance and upkeep of the matrimonial home” did not go towards the acquisition of any of the properties. There was thus no basis for the award of property made by the lower Court to the Respondent.

Counsel to the Appellant also contended that the lower Court was wrong in its finding that the Appellant failed to prove the allegation of adultery against the Respondent. Adultery has been defined as consensual intercourse between two persons of opposite sexes, at least one of whom is married to a person other than the one with whom the intercourse is had, and since the celebration of the marriage. Thus, to establish adultery, there must be sexual intercourse, the sexual intercourse must be voluntary and at least one of the parties must be married. Adultery must be proved strictly and clearly and the standard of proof is as required in civil cases.

?It is axiomatic that adultery is essentially an act which can rarely be proved by direct evidence. It is a matter of inference and circumstances. The law has thus set down certain

conditions from which adultery can be inferred and these are (i) evidence of disposition and opportunity for sexual intercourse with a person other than the spouse; (ii) general cohabitation – where it is established that there is a state of general cohabitation between a man and a woman, adultery is presumed between them; (iii) confession and admission of adultery; (iv) entry in register of birth – entry of birth by the wife which omits the name of the child’s father or simply gives a name other than the husband amounts to an admission of adultery; and (v) frequent visits to hotels – Erhahon Vs Erhahon (1997) 6 NWLR (pt 510) 667 and Alabi Vs Alabi (2008) All FWLR (pt 418) 245.

The Appellant alleged that the Respondent committed adultery with one Samson Chukwuma and in proof of the allegation, the Appellant tendered an invitation card, Exhibit 1b, which he said showed that the Respondent had earlier married the said Samson Chukwuma and he called a witness who testified as the second plaintiff witness and said that he twice saw the Respondent and the man whose picture was on Exhibit 1b in front of Prince Hotel. The Respondent denied knowing anybody called

Samson Chukwuma and/or ever marrying any such person and she also denied committing adultery at any time during the marriage. The lower Court found, rightly in my view, that the invitation card, Exhibit lb, did not constitute evidence that the Respondent contracted a marriage with a Samson Chukwuma and, that the testimony of the second plaintiff witness that he twice saw the Respondent outside a hotel with the said Samson Chukwuma did not constitute credible evidence in proof of adultery.

As stated earlier, the onus was on the Appellant to prove the allegation of adultery by preponderance of evidence. Evidence is said to preponderate where it is relevant and credible evidence that is conclusive and that commands such probability that is in keeping with the surrounding circumstances of the case in hand – Dibiamaka Vs Osakwe (1989) 3 NWLR (Pt 107) 101 at 113, Jiaza vs Bamgbose (1999) 7 NWLR (Pt 610) 182, Egwa Vs Egwa (2007) 1 NWLR (Pt 1014) 71. A case is decided on the totality of evidence adduced. Therefore, if on any given issue, the evidence of the claimant be as good as that of the defendant so that there is an equilibrium, it is the party on whom rests

the burden of proof that fails. This is because the evidence does not preponderate in such party’s favour – Ezukwu Vs Ukachukwu (2000) 1 NWLR (pt 642) 657, Ukaegbu Vs Nwololo (2009) 3 NWLR (pt 1127) 194. This was explained by Omosun, JCA in Igwe Vs Alozieuwa (1990) 3 NWLR (Pt 141) 735 at page 751, thus:
“It is not enough for a party to a case who has the onus of establishing a particular fact to say that his own evidence is just as good as that of his opponent. What the law says he must do to discharge the onus of proof on him is to prove by evidence which convinces the Court or Tribunal of the probability of his case rather than that of the opponent on the point in issue …”

The evidence led by the Appellant on the allegation of adultery did not preponderate over the testimony of the Respondent on the issue. The finding of the lower Court that the Appellant did not prove the allegation of adultery was predicated on the evidence led and cannot be faulted.

It is for these reasons, and for fuller and other reasons contained in the lead judgment, that I agree that there is some merits in this appeal. I too allow the appeal in part. I affirm the

judgment of the High Court of Kano State in Suit No K/41,0/2005 delivered on the 30th of March, 2012 by Honorable Justice Bayero, save for the order awarding the property of the Appellant situate at No. 48, Sarki Yaki Road, Sabon Gari, Kano to the Respondent and which order I hereby set aside. I abide the consequential orders contained in the lead judgment, including the order on costs.

AMINA AUDI WAMBAI, J.C.A.: I was privileged to read in draft the lead Judgment just delivered by my learned brother, IBRAHIM SHATA BDLIYA, JCA, with whom I am in agreement that there is some merit in this appeal. I abide the consequential Orders therein.

Appearances

M. N. Duru Esq.For Appellant

AND

Nelson Uzuegbu Esq.For Respondent