MR. OLADIPO OBAJIMI V. MRS. OLUFUMILAYO A. OBAJIMI
(2011)LCN/4345(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 1st day of March, 2011
CA/I/175/05
RATIO
RULE OF INTERPRETATION: WHETHER IN CONSTRUING A STATUTE OR INSTRUMENT, EVERY WORD OR CLAUSE THEREIN MUST BE READ AND CONSTRUED TOGETHER
In constructing a statute or instrument, every word or clause in an enactment must be read and construed together, not in isolation, but with reference to the con and other clauses in the statute in order, as much as possible, not only to reach a proper legislative intention, but also to make a consistent meaning of the whole statute, See Oyeyemi Vs. Commissioner for Local Government Kwara State (1992)2 SCNJ 266 at 280; Artra Ind. Nig. Ltd. Vs. NBCI (1998) 3 SCNJ 97 at 115. On construction of statute See also: Bakare Vs. NRC (2007) 17 NWLR (pt 1064) 606 at 639 paragraphs C-D page 640 paragraphs G, 641 paragraphs G-H; Odutota Holdings Ltd. Vs. Ladejobi (2006) 12 NWLR (Pt. 994) 321 at 358 paragraphs C-D; Unipetrol V.E.S.B.I.R (2006) 8 NWLR (pt. 983) 624 at 641 paragraph F-H; Rivers State Government Vs Specialist Knosolt (2005) 7 (pt. 923) 145 at 179 paragraphs E.F. PER SIDI DAUDA BAGE, J.C.A.
RULE OF INTERPRETATION: HOW A STATUTE WILL BE INTERPRETED WHERE ITS PROVISION OF ARE UNAMBIGUOUS
…it is trite that where the provision of a statute are unambiguous, the expressions of words therein must be given their plain and ordinary meaning and the court will not expand those provisions to include any extraneous provisions not stated therein See: Tasha Vs. UBN PLC. (2002) 3 NWLR (pt. 753) 99; Araka V. Egbue (2003) 17 NWLR (PT. 848) 1 AT 21 PARAGRAPH B-D; A.G. Federation Vs. Guardian Newspaper (1999) 9 NWLR (Pt 618) 187 at 264 paragraph F-G; Oviawe Vs. I.R.P. (NIG) LTD. (1997) 3 NWLR (Pt 492) 126 at 139 paragraphs E-F. PER SIDI DAUDA BAGE, J.C.A.
EVALUATION OF EVIDENCE: WHETHER IT IS DUTY OF THE APPELLATE COURT TO EVALUATE EVIDENCE OF THE PARTIES ON APPEAL AND TO ASCRIBE PROBATIVE VALUES TO THEM
… it is not the duty of this court to evaluate evidence of the parties on appeal and to ascribe probative values to them, which is the duty of the trial court. The Supreme Court in the case Eze Ibeh Vs. The State (1997) 1 SCNJ 256 at 271 of stated as follows:- “On evaluation of evidence, I wish to stress firstly, by saying that confirmation of the concurrent findings of facts by the court of the decisions of the two courts below is compelling in the sense that it is an avowed and age long judicial policy in this country that the evaluation of evidence called at the trial, the ascription of probative values to them and making primary findings on them are matters within the province of the court of trial which has the singular advantage or is pre-eminently placed of hearing the witnesses testify and watching their demeanours. For this reason, there is a presumption that a trial judge’s decision on facts is correct. A presumption which must be displaced by a person who seeks to upset the ‘decision if he can. An appellate court for its part in such a case should always be reluctant to interfere or to substitute its views of the facts for those of the court of trial.” See also: Balogun & Ors Vs. Alimi Agboola (1974) 1 All NLR (pt 2) 66. The Military Governor of Western State Vs. Afolabi Lanibe & anor. (1974) 1 All NLR (pt 2) 179. Ajao Vs. Ajao (1986) 5 NWLR (pt. 45) 802 and Kponugio Vs. Adja Kodaja (1933) 2 W.A.C.A. 24. PER SIDI DAUDA BAGE, J.C.A.
EVALUATION OF EVIDENCE: WHETHER THE APPELLATE COURT WILL INTERFERE WITH THE EVALUATION OF EVIDENCE WHERE THE TRIAL JUDGE HAS UNQUESTIONABLY EVALUATED EVIDENCE AND JUSTIFIABLY APPRAISES THE FACT
Where the trial judge has unquestionably evaluated evidence and justifiably appraises the fact it is not the business of an appellate court to interfere and to substitute its own views for the view of the trial court. See Onuoha Vs. The State (1985) NWLR (pt 548) 118; Woluchem Vs. Gudi (1981) 5 SC 291; Enang Vs. Adu (1987) 11-12 SC 25. PER SIDI DAUDA BAGE, J.C.A.
PROOF OF ADULTERY: WHETHER ADULTERY AS A MATRIMONIAL WRONG MUST SPECIFICALLY PLEADED AND CLEARLY PROVED
Adultery as a matrimonial wrong must be specifically pleaded and clearly proved. The allegation by appellant that he contracted venereal disease from respondent was generally pleaded in paragraph 12(ii) of the amended petition as follows: “The Respondent has since the marriage committed adultery resulting in her contracting venereal disease and the petitioner finds it intolerable to live with her.” The particulars or type of the venereal disease were not supplied in the petition. Halsbury’s Laws of England (Fourth Edition or Lord Hailsham’s Edition) volume 13 page 281 paragraph 586 states that such a charge of venereal disease must be specifically pleaded citing in support the cases of Squires v. Squires (1864) 3 SW and Tr 541 and Walker v. Walker v. Walker (1912) 107 LT 655. PER JOSEPH SHAGBAOR IKYEGH, J.C.A
SPECIFIC :MEANING OF THE WORD “SPECIFIC”
See also the meaning of “specific” in Black’s Law Dictionary (Eighth Edition) page 1434 as follows: “Of, relating to, or designating a particular or defined thing, explicit. Of or relating to a particular named thing…..” (My emphasis). PER JOSEPH SHAGBAOR IKYEGH, J.C.A
PROOF OF TRANSMISSION OF SEXUALLY TRANSMITTED DISEASE: WHETHER ALLEGATION OF TRANSMISSION OF A SEXUALLY TRANSMITTED DISEASE FROM THE OTHER CAN ONLY BE PROVED BY MEDICAL RECORD
Respondent did not prove medically that appellant had sexually transmitted disease and transmitted it to her. The normal method of proof of such a denied allegation is by medical record – see for example Gleen v. Gleen (1900) 17 TLR 62, where the fact of venereal disease of soldier respondent was proved by army medical history sheet. PER JOSEPH SHAGBAOR IKYEGH, J.C.A
CUSTOMARY PRACTICE TO BE FOLLOWED IN PROVING ALLEGATION OF A SEXUALLY TRANSMITTED DISEASE IN A MATRIMONIAL MATTER
It is customary in practice to ask in evidence whether the spouse accused had contracted the disease to affirm or disaffirm; if the accused spouse admits contracting the disease, the next question would be whether the spouse had intercourse with any other person than the husband or wife as the case may be and, if there is a denial, the onus shifts to the accuser to prove to the satisfaction of the court that the disease was contracted from extra-marital affair, not from sexual intercourse – see Halsbury’s Laws of England (supra) page 281 paragraph 568. PER JOSEPH SHAGBAOR IKYEGH, J.C.A
MAINTENANCE OF A WIFE: WHETHER A WIFE MAY CLAIM MAINTENANCE FROM HER HUSBAND EVEN WHERE THERE IS NO SUIT FOR DIVORCE OR SEPARATION
Maintenance of a wife may be claimed by her from the husband even if there is no suit for divorce or separation. in other words, the wife of a marriage under the Matrimonial causes Act (M.C.A) is entitled to claim maintenance in the High court, if her husband wilfully neglected to maintain her without instituting a matrimonial case vide the case of Ekisola v. Ekisola (1961) L.L.R.8, which reversed the previous contrary rule in Okpagu v. Okpagu (1947) 12 W.A.C.A. 137. PER JOSEPH SHAGBAOR IKYEGH, J.C.A
CUSTODY OF THE CHILDREN IN A MARRIAGE: POSITION OF THE LAW ON THE DUTY OF THE COURT WHERE THE ISSUE OF CUSTODY OR UPBRINGING OF A MINOR IS IN QUESTION AND WHETHER THERE CAN BE A FINAL DECISION OF THE COURT ON THE ISSUE OF CUSTODY
.. see again Halsbury’s Laws of England (supra) page 439 paragraph 932 as follows: “Custody. Where in any proceedings before any court the custody or upbringing of a minor is in question, the court, in deciding that question, must regard the welfare of the minor as the first and paramount consideration, and must not take into consideration whether, from any other point of view, the claim of the father in respect of such custody or upbringing is superior to that of the mother, or the claim of the mother is superior to that of the father. The welfare of the minor, although the first and paramount consideration, is not the sole consideration and the conduct of the parties is a matter to be taken into account.” Finally, custody of children is an on-going exercise akin to recurrent decimal. It is a day to day or revolving affair. Whenever any of the spouses discovers conditions have changed or altered for the worse in respect of the interest, benefit and welfare of the children or child in the custody of another person or spouse/ he or she can apply to the court to review the custody order. The court upon hearing the parties would reach a decision in the best interest of the child or children as the case may be. Therefore, all is not lost, as appellant still reserves the right to approach the court for a review of the order for custody of the children of the marriage in deserving circumstances. – see Ayegba v. Ayegba (1979) 3 LRN 232 at 235 (per Idoko, J. as he then was, now of blessed memory) citing in support Lord Merriman. P., in Hayes v. Hayes (1948) 1 WN 361, where the learned lord said: “Custody is a matter which can be dealt with from day to day; there is no finality about an order for custody in any court,” PER JOSEPH SHAGBAOR IKYEGH, J.C.A
JUSTICES
STANLEY SHENKO ALAGOA Justice of The Court of Appeal of Nigeria
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
Between
MR. OLADIPO OBAJIMI Appellant(s)
AND
MRS. OLUFUMILAYO A. OBAJIMI Respondent(s)
SIDI DAUDA BAGE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Dipeolu J. of the High Court of Justice, Ogun state holden at Ijebu-Ode in the Ijebu-Ode judicial Division, delivered on the 9th day of February, 2005 in which the Appellant was the petitioner. The Notice of Appeal which was undated, signed by the Appellants solicitor Kolawole F.O. Loy Esq., but filed on the 25/3/08, contained nine (9) grounds of Appeal.
The background facts are that the petitioner who is the appellant in this appeal filed a petition for dissolution of a 19 years old marriage with the Respondent. The marriage is blessed with four children. Three Males, one Female. By his second Amended petition, the complaint of the appellant was that the Respondent has been very immoral, unruly and carefree from the very beginning of the marriage. She had beaten his mother for about four different times. She did not perform her duty at home but instead indulged herself in Frolic missions. She went in and out of the matrimonial home at will and sometimes in company of men who she claimed were either her Christian brothers or fellow Nurses. She also went out at night and returned the next day claiming that she went to vigil in pursuit of spiritual development.
The Appellant had expressed his displeasure at this nature of misbehavior and the family members advised him to persevere, hoping that the Respondent was only being childish and time would heal her childishness, a predication which she proved wrong.
The Appellant (then Petitioner) filed a petition for the dissolution of the marriage. The petition went through the trial. After the address the judgment was delivered, and the Appellant was aggrieved by the whole judgment from the very beginning of the whole journey for the reason earlier stated, hence he appealed to this court.
The appellant formulated five (5) issues for determination they are:-
(1) Whether or not the evidence before the learned trial judge was well appraised and well marshaled with the relevant provisions of matrimonial causes Ad (i.e. whether or not the decision were judiciously or judicially reached, (especially in line with the conditions precedent to the grant of maintenance and custody of the children of the parties) before reaching his decisions in the following areas:
(i) The decision granting N10, 000 monthly maintenance and award N50, 000 damages against the petitioner/Appellant to be paid by the Appellant to the Respondent without any regard to the Appellant’s earning capacity and conducts of the parties to the marriage and all other relevant circumstance.
(ii) The decision to grant custody of all the children of the marriage to the Respondent when neither dissolution nor separation was granted reasonable?
(2) Whether or not the ancillary orders hanged effectively on law and equity.
(3) Whether or not it is in order for the trial judge to dismiss a petition for dissolution of marriage after coming to a conclusion “That piece of evidence is confirmation that consummation actually ceased”
(4) Whether from the totality of the findings of the learned trial judge and the evidence before the court, adultery was not proved.
(5) Whether the immoral behaviors of the Respondent were not sufficient to constitute behavior that the petitioner/appellant cannot reasonably be expected to live with and whether it is proper for the trial court to omit pronouncement on it.
The Respondents did not file her brief of argument after being duly served with the Appellants’. The appellant had filed a motion on Notice dated the 15/8/07, filed on the 16/8/07 brought pursuant to Order 6 Rule 9 of the court of Appeal Rules 2007. The appellant had sought in the main before the court that his appeal be heard on his brief of argument alone, having duly served the Respondent with his brief of argument since 7th of June, 2007. The appellant’s motion was duly granted by this court on the 7th of April, 2008. On this order this court heard the appeal of appellant on his brief of argument alone on the 19th of January, 2011.
In arguing the appeal, learned counsel in respect of his first issue submitted that by the provision of Section 75(1) of the matrimonial Causes Act therein after referred to as M.C.A) the court in this petition dismissed the prayer for dissolution of the marriage (which is the principal relief) in the petition and in the cross petition and from the provision of Section 75(1) M.C.A, the court should not have made any ancillary order under part IV of this Act, which has to do with maintenance, custody and settlements of properties.
Learned counsel further submitted that by the effect of Section 15(2) (a-h) and (3), Section 55, M.C.A, the court in this case has not satisfied that the marriage has broken down irretrievably, therefore it dismissed the petition and the cross petition for divorce and by virtue of Section 75(1) of the MCA the court cannot make an order under part IV of the MCA, and where it makes one, it cannot be in accordance with the provision of MCA. It is an order devoid of judicious and judicial consideration in as much as it was made in defiance or total disregard to the enabling law.
Learned counsel further submitted that Section 75(2) is not available for the Honourable trial court judge to hide under since it is irreconcilable and unreasonable to come to a conclusion that will agree with Section 75(2) (6) (ii). Having already declared by the dismissal of the claims for dissolution that non of the conditions set out in Section 15(2) was available in the evidence before the Court, the Court is saying that in its findings the marriage has not broken down irretrievably, and if it claims that it has granted the ancillary relief based on the provision of Section 75(2) (6) (ii), it is saying at the same time that in its finding “there is no reasonable likelihood of the parties becoming reconciled “, In other words, that the marriage has broken down irretrievably. That will amount to court reprobating and approbating at the same time, this court will not permit it to do so.
Learned counsel further submitted that the trial Court having dismissed the prayers by both the petitioner and the cross petitioner for dissolution of the marriage, it cannot lawfully, judiciously and judicially make any order under part IV of MCA. Such orders for maintenance, custody or settlements of properties as provided for in section 69 to 75 of MCA.
A very careful examination of the argument proffered by the appellant in respect of the issue No. 1 is to effect that, since the trial Court in its judgment failed to comply with the provisions of Section 75(1) of the MCA, it was wrong on the part of the Court to have made any ancillary order for maintenance, custody or settlement of properties. The Appellant in his argument maintained that, in his petition at the trial Court, his main relief contained in the petition, was for the dissolution of the marriage. He argued further that, the Court in this case has not been satisfied that the marriage has broken down irretrievably therefore it dismissed the petition and the cross petition for divorce and by virtue of Section 75(1) of the MCA, the court cannot make order under part IV of the MCA. And where it makes one it cannot be in accordance with the provision of MCA, it is an order devoid of judicious and judicial consideration in as much as it was made indigence or total disregard to the enabling law.
For the purposes of clarity it is pertinent to set out the provisions of Section 75(1) of MCA, it Provides:-
“Save as provided by this section, the court shall not make an order under this Part of this Act where the petition for the principal relief has been dismissed”
It had been stated earlier that the main relief the dissolution of the marriage went with the dismissal of the petition by the court, and also the cross petition for divorce was refused.
In the judgment of the Court delivered on the 9/2/05 at page 66 of the records, the trial court at the 2nd to the last paragraph held as follows:-
(1) The petitioner’s petition fails in its entirety and it is accordingly dismissed.
(2) Reliefs (a) (6) (e) (f) (9) and (h) the Respondent/cross petitioners cross petition succeed and are accordingly granted.
(3) Reliefs (c) and (d) of the Respondent/cross ‘petitioners petition fail and are dismissed.
The main issue to be determined is whether by virtue of the provision of Section 75(1) MCA stated above, it becomes a condition precedent that the court cannot grant any ancillary relief unless and or until it had pronounced a decree dissolving the marriage. Alternatively the pronouncement of a decree dissolving the marriage becomes sine qua non to the grant of ‘any ancillary relief’
The law is already trite on construction of statute or instrument i.e the provision of section 75 (1) of MCA. In constructing a statute or instrument, every word or clause in an enactment must be read and construed together, not in isolation, but with reference to the con and other clauses in the statute in order, as much as possible, not only to reach a proper legislative intention, but also to make a consistent meaning of the whole statute, See Oyeyemi Vs. Commissioner for Local Government Kwara State (1992)2 SCNJ 266 at 280; Artra Ind. Nig. Ltd. Vs. NBCI (1998) 3 SCNJ 97 at 115. On construction of statute See also: Bakare Vs. NRC (2007) 17 NWLR (pt 1064) 606 at 639 paragraphs C-D page 640 paragraphs G, 641 paragraphs G-H; Odutota Holdings Ltd. Vs. Ladejobi (2006) 12 NWLR (Pt. 994) 321 at 358 paragraphs C-D; Unipetrol V.E.S.B.I.R (2006) 8 NWLR (pt. 983) 624 at 641 paragraph F-H; Rivers State Government Vs Specialist Knosolt (2005) 7 (pt. 923) 145 at 179 paragraphs E.F.
From the MCA, the provision Section 75(1) MCA cannot be read in Isolation of the provisions of Sections 70,71 and 72 of the MCA.
Section 70 MCA provides:-
(1) “Subject to this section, the court may in proceedings / with respect to the maintenance of a party to a marriage, or of children of the marriage, other than proceedings for an order for maintenance pending the disposal of proceedings, make such order as it thinks proper, having regard to the means, earning capacity and conduct of the parties to marriage and all other relevant circumstances.
(2) The Court may make an order for the maintenance of a party notwithstanding that a decree is or has been made against that party in the proceedings to which the proceedings with respect to maintenance are related, ”
Section 71 MCA
(1) “In proceedings with respect to the custody, guardianship; welfare, advancement or education of children of a marriage, the court shall regard the interests of those children as the paramount consideration, and subject thereto, the court may make such order in respect of those matters as it thinks proper”
Section 72 MCA
(1) “The Court may, in proceedings under this Act by order require the parties to the marriage, 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 considers just and equitable in the circumstances of the case.”
Section 70 (3) MCA, is quite instructive that an order for the maintenance of a party can be made by a court notwithstanding that a decree is or has been made against that party in the proceedings. The claim of the Appellant that the court cannot make order for maintenance under Section 75 MCA cannot be corrected, because Section 75 MCA, cannot be read in Isolation of Section70 (3) MCA. The trial Court was therefore correct, to have made an order for maintenance even though it had not pronounced a decree dissolving the marriage. Also on the powers of Court in custody proceedings, and the powers of court in proceedings with respect to settlement of property, Section 75 MCA, cannot be read in Isolation of Sections 71(1) and Section 72 (1) both of which has given the court power to exercise some major of discretion as it considers just and equitable in the circumstance of the case.
On the whole therefore the interpretation made by the trial court in relation to Section 75 MCA is correct and the ancillary reliefs granted under it to respondent is proper, notwithstanding the fact that the court had not pronounced a decree dissolving the marriage, it is trite that where the provision of a statute are unambiguous, the expressions of words therein must be given their plain and ordinary meaning and the court will not expand those provisions to include any extraneous provisions not stated therein See: Tasha Vs. UBN PLC. (2002) 3 NWLR (pt. 753) 99; Araka V. Egbue (2003) 17 NWLR (PT. 848) 1 AT 21 PARAGRAPH B-D; A.G. Federation Vs. Guardian Newspaper (1999) 9 NWLR (Pt 618) 187 at 264 paragraph F-G; Oviawe Vs. I.R.P. (NIG) LTD. (1997) 3 NWLR (Pt 492) 126 at 139 paragraphs E-F. Issue No.1 of the Appellant therefore fails.
On issue No.2, as to whether or not the ancillary orders were hanged effectively on law and equity, this court is urged to dismiss the ancillary orders with regard to the custody of the children, submitted by the learned counsel.
Learned counsel submitted further that custody of the children of marriage is not granted arbitrarily. There are guiding principles; the first basic principle is that the children’s interest is paramount. See W.V.N. and (1968) 3 ALL ER at 408; Anyaso Vs. Anyaso (1998) 9 NWLR (PT 564) 150; Oyelowo (1998) 2 NWLR (Pt 56) 239; 4 SC 32. Also Section 71(1) MCA.
Learned counsel further submitted that the cases cited above is to the effect that it was right for the court to be guided by the general principle that a boy of eight was on the whole, other things being equal better off with His father, whereas there is no settled rule that a child of tender years should remain in the custody of the mother See R.E.B. (an infant) (1962) 1 ALL ER 872.
Learned Counsel further submits that it is also settled that such consideration as the respective income and position in life of the parties, their accommodation, the arrangement made by the parties for the education or opportunities for proper upbringing are matters which may affect the determination of who should have custody. See Williams Vs. Williams (7987) 2 NWLR (Pt 54) 66 at 74.
Learned Counsel submitted further that, the fact of the loving nature of the Appellant both to children and wife as conferred by the Respondent herself and his teaching background as a physics teacher in a secondary school and the fact that he has all the time after school at 2:00 p.m. to look closely after the children, more so when about 3 of them are male above eight years old seeking many things to learn in their father were strangely irrelevant in the consideration of the learned trial judge.
Learned counsel further submitted with respect to the maintenance order the MCA specifically provides the procedure which the Court must follow in order to reach a just conclusion as to what the means of the parties are so as to decide what maintenance order is to be made. The learned trial judge decided to give to the Respondent.
Again this court examines the submission of the learned counsel to the appellant in respect of Issue as to custody, guardianship, welfare, and advancement or education e.t.c. This covered by Section 71 (1) provides:-
“In proceedings with respect to the custody, guardianship, welfare, advancement or education of children of a marriage, the court shall regard the interests of those children as the paramount consideration and subject thereto, the Court may make such order in respect of those matters as it thinks proper”
It is very clear that “such order in respect of those matters as it thinks proper” gives the court power to exercise a major of discretion as it thinks proper. Unless the appellant has shown in his argument that the decision by the Court is unwarranted and or fell short any acceptable standard, the Court of Appeal is not likely to interfere with such exercise of discretion by the court of trial. The MCA, Section 71 (1) bestows upon the trial court to exercise discretion in relation to welfare advancement and or education plus guardianship of the children, the Appeal court cannot interfere unless it has been shown by proof that there was an improper use of such discretion. There is no such proof of improper use of the discretion by the trial court in this matter before us.
It is trite that the proper role of a Court of Appeal, where there is proper exercise of discretion is not to interfere with the discretion. To do so merely on the ground that the appellate Court would have exercised the discretion differently, is an assault on justice and not within the statutory powers of the Appeal Court. See: Hadmor Productions Ltd, Vs. Hamilton (1983) A.C. 191 at 220; Dr Sola Saraki Vs. N.A.B. Kotoye (1990) 6 SCNJ 37 at 57, where it was held:-
“It is well settled that the Court of Appeal cannot set aside a discretion exercised by the High Court because, it would have exercised the discretion differently.”
Also See: Solanke Vs. Ajibola (7968) 1 All N.L.R.46 at 59.
In the absence of any proof before the court, this court is satisfied that the ancillary orders were hanged effectively on law and equity, issue No.2 is therefore resolved by this Court against the appellant.
Issues 3, 4 and 5 can conveniently be treated together as they deal with the same subject, whether the trial judge had properly evaluated the evidence before him on arriving at his conclusions.
Issue 3:- whether or not it is in order for the trial judge to dismiss a petition for dissolution of marriage after coming to a conclusion that “That piece of evidence is confirmation that consummation actually ceased,” or whether the trial judge actually took the right decision after coming to the above conclusion.
Issue 4:- whether from the totality of the findings of the learned trial judge and the evidence before the court, adultery was not proved.
Issue 5:- whether the immoral behaviors of the Respondent were not sufficient to constitute behavior that the petitioner appellant cannot reasonably be expected to live with and whether it is proper for the trial court to omit pronouncement on it.
It is very clear that the central theme on issues 3, 4 and 5, is that the evidence before the trial judge was not well appraised and marshaled with the relevant provision of matrimonial causes Act. That was why the monthly maintenance damages and custody of the children were wrongly granted. That was also the reason why the order for the dissolution of the marriage was not made. The facts of adultery as considered by the trial court is as much as adultery was indirectly proved and, the fact that consummation actually ceased were enough reason why the marriage ought to have been dissolved. The immoral behavior of the Respondent should have been accepted as sufficiently intolerable to a reasonable husband and on that alone the marriage ought to have been dissolved.
At the stage of the appellate court, it is not the duty of this court to evaluate evidence of the parties on appeal and to ascribe probative values to them, which is the duty of the trial court. The Supreme Court in the case Eze Ibeh Vs. The State (1997) 1 SCNJ 256 at 271 of stated as follows:-
“On evaluation of evidence, I wish to stress firstly, by saying that confirmation of the concurrent findings of facts by the court of the decisions of the two courts below is compelling in the sense that it is an avowed and age long judicial policy in this country that the evaluation of evidence called at the trial, the ascription of probative values to them and making primary findings on them are matters within the province of the court of trial which has the singular advantage or is pre-eminently placed of hearing the witnesses testify and watching their demeanours. For this reason, there is a presumption that a trial judge’s decision on facts is correct.
A presumption which must be displaced by a person who seeks to upset the ‘decision if he can. An appellate court for its part in such a case should always be reluctant to interfere or to substitute its views of the facts for those of the court of trial.”
See also: Balogun & Ors Vs. Alimi Agboola (1974) 1 All NLR (pt 2) 66. The Military Governor of Western State Vs. Afolabi Lanibe & anor. (1974) 1 All NLR (pt 2) 179. Ajao Vs. Ajao (1986) 5 NWLR (pt. 45) 802 and Kponugio Vs. Adja Kodaja (1933) 2 W.A.C.A. 24.
This court examined the judgment of the trial court, the subject of this appeal, it is not in any doubt that the trial court had evaluated the evidence before it, and had appraised all the facts before it, this court therefore will not interfere with decision of the trial court in the appeal, This court had stated earlier on in this judgment that the function of evaluation of evidence is essentially that of the trial judge. Where the trial judge has unquestionably evaluated evidence and justifiably appraises the fact it is not the business of an appellate court to interfere and to substitute its own views for the view of the trial court. See Onuoha Vs. The State (1985) NWLR (pt 548) 118; Woluchem Vs. Gudi (1981) 5 SC 291; Enang Vs. Adu (1987) 11-12 SC 25.
On the whole therefore Issues 3, 4, 5, are resolved against the appellant by this court.
Having resolved all the 5 issues against the appellant by this court the Appeal fails and it is hereby dismissed. The judgment of Dipeolu J, in suit No.HCJ/77/02 delivered on the 9th of February, 2005 in the High Court of Ogun State in the Ijebu-Ode judicial division, between Mr. Oladipo Obajimi Vs. Mrs Olufumilayo Adebimpe Obajimi is hereby affirmed by this court.
STANLEY SHENKO ALAGOA, J.C.A.: I have had the opportunity of reading in draft the lead judgment of my learned brother, S. D. Bage, J.C.A. just delivered. I agree with his reasoning and conclusion that the appeal lacks merit and should be dismissed. I dismiss same and affirm the judgment of the court below.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I had the benefit of reading in draft the judgment prepared by my learned brother BAGE, J.C.A., in which I fully concur with these few remarks.
Adultery as a matrimonial wrong must be specifically pleaded and clearly proved. The allegation by appellant that he contracted venereal disease from respondent was generally pleaded in paragraph 12(ii) of the amended petition as follows:
“The Respondent has since the marriage committed adultery resulting in her contracting venereal disease and the petitioner finds it intolerable to live with her.”
The particulars or type of the venereal disease were not supplied in the petition. Halsbury’s Laws of England (Fourth Edition or Lord Hailsham’s Edition) volume 13 page 281 paragraph 586 states that such a charge of venereal disease must be specifically pleaded citing in support the cases of Squires v. Squires (1864) 3 SW and Tr 541 and Walker v. Walker v. Walker (1912) 107 LT 655.
See also the meaning of “specific” in Black’s Law Dictionary (Eighth Edition) page 1434 as follows:
“Of, relating to, or designating a particular or defined thing, explicit. Of or relating to a particular named thing…..”
(My emphasis).
So, the evidence from the medical doctor and the laboratory scientist towards proof bf venereal disease went to no issue as the material fact to sustain the evidence was not specifically pleaded – see Emegokwue v. Okadigbo (1973) 3 ECSLR (Pt. 1) page 267 at 270-271.
Besides, the evidence of the medical doctor as P.W.1 and the laboratory scientist as P.W.3 in the court below did not prove respondent transmitted venereal disease to appellant, as she was not examined to ascertain whether she was a carrier of any venereal disease. Even the appellant testifying as the P.W.2 did not accuse her of communicating venereal disease to him. The appellant’s evidence on the issue simply stated:
“Some time ago the respondent complained of having contacted venereal disease from me. I was shocked because we have not been meeting for some time. I therefore went to the hospital for check-up. I had tests which were negative.”
No where did appellant prove respondent contracted venereal disease from adulterous relationship. On the contrary, respondent’s evidence in the court below baldly accused appellant of carrying sexually transmitted disease (STD) in these words:
“Some time in February, 2002 after having intercourse with my husband, I started itching my private part. That was a week after the intercourse. I complained to my husband and asked him what was happening, he did not answer me. I then reminded him of the time he infected me… He had STD and I stopped having intercourse with him.”
Respondent did not prove medically that appellant had sexually transmitted disease and transmitted it to her. The normal method of proof of such a denied allegation is by medical record – see for example Gleen v. Gleen (1900) 17 TLR 62, where the fact of venereal disease of soldier respondent was proved by army medical history sheet.
It is customary in practice to ask in evidence whether the spouse accused had contracted the disease to affirm or disaffirm; if the accused spouse admits contracting the disease, the next question would be whether the spouse had intercourse with any other person than the husband or wife as the case may be and, if there is a denial, the onus shifts to the accuser to prove to the satisfaction of the court that the disease was contracted from extra-marital affair, not from sexual intercourse – see Halsbury’s Laws of England (supra) page 281 paragraph 568. Both the appellant and respondent did not follow the customary practice of proving such a serious allegation.
As for the accusation of adultery, appellant testified on it thus:
“She goes out and comes in anytime she wanted under the pre of going to work or night vigil.”
Appellant did not give evidence establishing he cross-checked and found out respondent did not go to work or to night vigil as alleged by her. Nor was evidence tendered to prove respondent was caught by appellant or any other witness in compromising circumstances pointing to adulterous exploits. The evidence on adultery was, accordingly, too scanty and unconvincing and below the high standard for such allegation to warrant the court below to give judgment to appellant on that ground, as opportunity coupled with familiarity to commit adultery by respondent were absent in the evidence proffered by appellant – see Ikpi v. Ikpi (1957) W.R.N.L.R.59; Akinyemi v. Akinyemi (1963) 1 All N.L.R 340; and Oloko v. Oloko (1961) W.N.L.R. 101.
Respondent prayed for maintenance and custody of the four children of the marriage in her cross petition; the latter of which appellant also requested for in his petition. Both the petition and the cross petition were dismissed. The court below made ancillary orders for maintenance and for custody of the four children of the marriage of about 19 years old at the material time in favour of respondent. Maintenance of a wife may be claimed by her from the husband even if there is no suit for divorce or separation. in other words, the wife of a marriage under the Matrimonial causes Act (M.C.A) is entitled to claim maintenance in the High court, if her husband wilfully neglected to maintain her without instituting a matrimonial case vide the case of Ekisola v. Ekisola (1961) L.L.R.8, which reversed the previous contrary rule in Okpagu v. Okpagu (1947) 12 W.A.C.A. 137.
The court below saw and heard both appellant and respondent in the course of their respective testimonies before it and was in a vantage position to size them up on the suitability of granting custody of the children of the marriage to either of the parents before granting it to respondent, The interest and welfare of the children must have been taken into paramount consideration as well as the conduct of the appellant and respondent and their respective resources, comportment, and total bio-data by the court below before the order for custody was made – see again Halsbury’s Laws of England (supra) page 439 paragraph 932 as follows:
“Custody. Where in any proceedings before any court the custody or upbringing of a minor is in question, the court, in deciding that question, must regard the welfare of the minor as the first and paramount consideration, and must not take into consideration whether, from any other point of view, the claim of the father in respect of such custody or upbringing is superior to that of the mother, or the claim of the mother is superior to that of the father. The welfare of the minor, although the first and paramount consideration, is not the sole consideration and the conduct of the parties is a matter to be taken into account.”
Finally, custody of children is an on-going exercise akin to recurrent decimal. It is a day to day or revolving affair. Whenever any of the spouses discovers conditions have changed or altered for the worse in respect of the interest, benefit and welfare of the children or child in the custody of another person or spouse/ he or she can apply to the court to review the custody order. The court upon hearing the parties would reach a decision in the best interest of the child or children as the case may be. Therefore, all is not lost, as appellant still reserves the right to approach the court for a review of the order for custody of the children of the marriage in deserving circumstances. – see Ayegba v. Ayegba (1979) 3 LRN 232 at 235 (per Idoko, J. as he then was, now of blessed memory) citing in support Lord Merriman. P., in Hayes v. Hayes (1948) 1 WN 361, where the learned lord said:
“Custody is a matter which can be dealt with from day to day; there is no finality about an order for custody in any court,”
Accordingly, I too see no merit in the appeal. I dismiss it and abide by the consequential orders mad6 in the lucid judgment of my learned brother, Bage, J.C.A.
Appearances
Kolawole F.O. LoyFor Appellant
AND
AbsentFor Respondent
