MR. THEOPHILUS OKEY ANIETO v. MRS. VERONICA EBELE ANIETO
(2019)LCN/12987(CA)
In The Court of Appeal of Nigeria
On Friday, the 29th day of March, 2019
CA/IB/153/2013
JUSTICES
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria
FOLASADE AYODEJI OJO Justice of The Court of Appeal of Nigeria
Between
MR. THEOPHILUS OKEY ANIETO Appellant(s)
AND
MRS. VERONICA EBELE ANIETO Respondent(s)
RATIO
FACTOR FOR THE COURT TO CONSIDER WHEN MAKING AN ORDER FOR THE SETTLEMENT OF PROPERTY IN A MATRIMONIAL CAUSE
Now, it is the law that in making an order for the settlement of property in a matrimonial cause, the Court will consider what is just and equitable in the circumstances of a given case. Thus, what is suitable and appropriate in one case may not meet the justice of another. See Kakulu v. Kakulu (2016) LPELR ? 41552 (CA); Aderounmu v. Aderounmu (2003) 2 NWLR (pt.803) 1 and Kafi v. Kafi (1986) 3 NWLR (pt. 27) 175. In the case of Ibeabuchi v. Ibeabuchi (2016) LPELR ? 41268 (CA), this Court held that, what the Court will consider in the exercise of its discretion in making an award under the settlement of property principles, are whether or not the property in question was acquired by the parties or by one of them during the course of the marriage, and if so, what was the contribution of each party to the cost of the acquisition. It was however held, per Abiru, JCA in the Ibeabuchi case (supra) that:
?It is correct that the contribution of a party does not necessarily have to be in the nature of 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… It is however essential that the property 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.?
A case germane to the facts of this case is Kafi v. Kafi (1986) 3 NWLR (pt. 27) 175. PER TSAMMANI, J.C.A.
HARUNA SIMON TSAMMANI, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Oyo State High Court of Justice sitting at Ibadan, delivered by O. I. Aiki, J on the 21st day of June, 2010 in Suit No: I/805HD/99.
The Appellant had in a Notice of Petition dated the 3rd day of November, 1999 filed for the dissolution of the marriage between him and the Respondent contracted at the Catholic Church, Oke Ado, Ibadan on the 30th day of November, 1996. Consequent upon the grant of the order nisi by the trial Court, per M. O. Adio, C. J. the parties presented before the trial Court, per O. I. Aiki, J the issue relating to the ownership of the property covered by Certificate of Occupancy registered as No. 25 at page 25 in Volume 3281 of the Lands Registry at Ibadan, dated the 15th day of September, 1998. The said issues were pleaded in paragraphs 13.01A and 13.01B of the Respondent?s Amended Answer to the petition filed on the 28/2/2003. By the said paragraphs, the Respondent pleaded as an alternative that the Petition be dismissed, for:
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?1. Order that the Respondent is entitled as of right to half of the property conveyed to the Petitioner and the Respondent as per the Certificate of Occupancy dated 15th September, 1999 and registered as Instrument No. 25 at page 25 in Volume 3281 of the Register of titles at Ibadan.
?2. Order that the Respondent is entitled as of right to remaining half in the name of the Petitioner in the property covered by Certificate of Occupancy dated 15th of September, 1999 and registered as Instrument No. 25 at page 25 in Volume 3281 of the Register of titles at Ibadan.
The facts grounding the reliefs sought are stated in paragraphs 13.06 ? 15.04 of the Amended Answer to the Petition. The answer of the Petitioner/Appellant in opposition to those reliefs sought by the Respondent are as pleaded in paragraphs 6, 7, 8, 20, 21, 22, 23, 24, 24.1, 25 and 26 of the Reply to the Amended Answer to the Petition. The parties testified at the hearing in support of their cases but called no other witness. A Certified True Copy (C.T.C) of the Certificate of Occupancy of the dispute property was tendered and admitted in evidence as Exhibit ?P2?. At the close of evidence, respective counsel addressed the Court. Thus, in a
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considered judgment delivered on the 21st day of June, 2010, the learned trial Judge gave judgment for the Respondent in terms of prayer one (1) by ordering the sale of the dispute property covered by Exhibit ?P2?. Relief two (2) was however dismissed. It is against that judgment that the Appellant has filed this appeal.
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The Original Notice of Appeal at pages 159 ? 160 of the Record of Appeal was filed on the 08/6/2011 by order of this Court made on 26/5/2011. However, by the leave of this Court granted on the 20/2/2018, the Appellant amended the Notice of Appeal. This appeal was therefore heard on the Amended Notice of Appeal, dated the 28/3/18 but filed on the 29/3/18. It consists of six (6) Grounds of Appeal. Briefs of Arguments were accordingly filed and served by the parties. The Appellant?s Brief of Arguments was dated the 28/3/18 and filed on the 29/3/18. Therein, the Appellant distilled four issues for determination as follows:
1. Whether the Learned Trial Judge was right when he assumed jurisdiction to entertain the Respondent?s claim in paragraphs 13.01A and 13.01B of the amended answer against the provisions
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of Matrimonial Causes Act and Rules.
[Grounds I and II].
2. Whether the Learned Trial Judge was right to have ordered for the sale of Exhibit ?P2? even where such order was not sought for by any of the parties.
[Ground IV].
3. Whether the Learned Trial Judge was right when he held that the order for the sale of Exhibit ?P2? was made pursuant to Sub-Sections (d) and (f) of Section 73 of the Matrimonial Causes Act
[Part IV of the Act].
4. Whether the Learned Trial Judge erred in law when it abandoned the Application or Originating Summons filed on the 1/3/2002 by the Respondent herein.
[Ground III].
The Respondent?s Brief of Arguments was dated and filed on the 04/5/2018. The Respondent adopted all the four issues raised for determination by the Appellant. The Respondent having adopted the four (4) issues raised by the Appellant, argued them together. The Appellant argued the issues independently, but having reflected on those issues and the arguments of counsel, I shall consider issues 1, 2 and 3 together while issue four (4) shall be considered alone. I shall however start with issue 4.
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Arguing on issue 4, Mr. Okeke of learned counsel for the Appellant began by submitting that, it is a principle of law that the Court is to take into account all applications before making a final order in the case. The case of Onyekwuluje v. Animashaun (1996) 3 NWLR (pt.439) 637 was then cited to further submit that, in the case at hand, the objection of the Appellant to the Preliminary Objection of the Respondent is fatal to the Respondent?s case. That, the trial Court failed to considers the application of the Respondent and the objection raised thereto by the Appellant, but proceeded to delve into the hearing of the Amended Answer by the Respondent. That doing so, occasioned miscarriage of justice. We were accordingly urge to resolve this issue in favour of the Appellant.
Learned Counsel for the Respondent merely contended that, the trial Court did not abandon the Originating Summons but considered same along with the ancillary relief sought in the Amended Answer to the Petition. It is therefore the submission of learned counsel for the Respondent that the Originating Summons was never abandoned.
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Now, it is the law that, the Court must consider and pronounce on all applications before it and pronounce on all issues before the Court. SeeDuru v. FRN (2013)6 NWLR (pt.1351) 441; Mobil Producing (Nig.) Unlimited & Anor v. Monokpo & Anor (2003) 18 NWLR (pt.852) 346; Abah v. Monday & Ors (2015) LPELR ? 24712 (SC) and FAAN v. Wamal Express Services (Nig.) Ltd (2011) 8 NWLR (pt.1249) 219. This is because, the principles of fair hearing require that every application brought before the Court be heard. It is therefore a fundamental requirement of the administration of justice in this country, that the Court must endeavor to hear all applications properly filed before it before proceeding to determine on the merit of the case.
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In the instant case, the Notice of Application OR Originating Summons filed on the 01/3/2002 was filed by the Respondent. It was not filed by the Appellant herein. It is also obvious that it was never moved by the Respondent. However, the Respondent filed a Motion on Notice on the 06/12/2002, seeking leave of the trial Court to amend the Answers to the Petition. The Appellant filed a Counter Affidavit to that Motion on the 03/2/2003. The application
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was duly argued and in a considered Ruling delivered on the 26/2/2003, the trial Court, per Ige, J., (as he then was) granted leave to the Respondent to amend her Answer to the Petition in the manner stated in the schedule to the amendment attached to the Motion. Consequently, the Respondent filed an Amended Respondent?s Answer to the Petition for Dissolution of the marriage on the 28/2/2003. The Appellant then filed a Reply to the Amended Answers to the Petition on the 17/3/2003. The Respondent then filed a Rejoinder to the Reply to the Amended Petition by leave of Court on the 2/6/2003. It should be noted that all this while, the Notice of Application OR Originating Summons was never argued and counsel did not draw the attention of the Court to it till hearing on the matter set for determination as in the Ruling per Ige, J (as he then was) on the 26/2/2003.
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The law however is that, where an application or other Court process is filed in Court but the party who files same does not deem it necessary to pursue same by either taking further steps in the matter, it would be deemed that the application or process has been abandoned. In other words, the
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Court would be right to assume that the process has been abandoned by the party who files it; and accordingly deem same as having been abandoned. See INEC & Anor v. P.D.P. (2014) LPELR ? 23681 (CA); and Salami v. Mohammed (2000) 9 NWLR (pt. 673) 469. Thus in Carew v. Oguntokun & Ors (2011) LPELR ? 9355 (SC) My Lord, Mukhtar, JSC said:
?It is a cardinal principle of law that any process that is filed in Court and which the party who has filed it has not deemed it necessary to pursue, either by taking further steps or doing certain things like moving the Court, in compliance with requirements of the law, as in this case, the Court will be correct to assume that the process has been abandoned by the party, and so deem the said process as duly abandoned
?In the instant case therefore, though the trial Court did not say so, the Notice of Application OR Originating Summons which was not argued is deemed to have been abandoned. With this, I am intrigued that the Appellant could make it an issue in this appeal. In any case, the Appellant has not demonstrated what injustice or prejudice has occasioned the Appellant by the
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abandonment of that application or Originating Summons. Clearly therefore, this issue has no substance. It is accordingly resolved against the Appellant.
Arguing on issue 1; learned counsel for the Appellant cited the case of Overseas Construction Ltd v. Creek Enterprises Ltd (1985) 3 NWLR (pt.13) 407 to submit that, in law, a matter is said to be in issue when it is properly raised and relevant for the determination of the dispute before the Court. On that note, learned counsel for the Appellant contended that a Respondent who wishes to make a claim in a petition under the Matrimonial Causes Act can only do so by filing a Cross-Petition. That in the instant case, the Respondent did not comply with the provisions of the law so as to imbue the Court with the jurisdiction to determine the claim as contended in the amended answer to the petition. It was contended that a Cross-Petition is a separate action independent of the main petition and the appropriate way of placing the agitation of the Respondent before the Court. The cases of Mr. Innocent U. Eluwa v. Mrs. Florence O. Eluwa (2013) LPELR ? 22120 (CA) and Hon. Justice Theresa Uzoamaka Uzokwe v. Dr. Afam
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Uzokwe (2016) LPELR ? 40945 (CA) were then cited to submit that the trial Court lacked the requisite competence to entertain the Respondent?s reliefs contained in the Amended Answer to the petition.
The cases of Lewis and Peat (NRI) Ltd v. Akhimien (1976) S.C.157 and Akintola v. Solano (1986) 2 NWLR (pt. 24) 589 were further cited to submit that, a divorce petition is in the position of a Statement of Claim in trials filed on pleadings; and that the question to be answered is whether the reliefs sought by the Respondent in her answer to the Petition is in the nature of a Counter-Claim. That the reliefs sought by the Respondent are for settlement of property and therefore falls within the definition under Section 114 of the Matrimonial Causes Act and Rules which can only be initiated by way of a petition. That in the instant case, the Respondent did not file a Cross-Petition and there was nothing on record to show that those claims were included via an amendment. The cases of Madukolu v. Nkemdilim (1962) 1 All NLR 584; Bronik Motors Ltd v. Wema Bank (1983) 1 S.C. 296 and Aladegbemi v. Fasanmade (1988) 1 NSCC 1087 were then cited to submit that the Respondent?s case was properly before the Court.
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Learned Counsel for the Appellant went on to submit that, assuming that the Respondent?s Claim was properly constituted (which is not conceded), the relief sought by the Respondent was in the alternative. That, on the 13/6/2001, M. O. Adio, CJ had granted an order nisi for the dissolution of the marriage between the Appellant and Respondent thereby bringing to a close the prayers of both the Appellant and the Respondent. That in the circumstances, the matter of dissolution of the marriage has ceased as agreed by the parties. In other words, that, since the Respondent submitted to the Claim of the Appellant in the petition, the matter was concluded when Adio, CJ granted the order nisi for the dissolution of the marriage was granted. It was then contended that, the moment the Respondent succumbed to the judgment of 13/6/2001 delivered by M. O. Adio, CJ, she had relinquished her right to the alternative prayer. That the Respondent attempted to maintain a fresh action when she filled a Notice of Application or Originating Summons on the 1/3/2002 which she later abandoned.
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Learned Counsel for the Appellant went on to submit that, the learned trial Judge was not right when he assumed jurisdiction to entertain the Respondent?s claim in paragraphs 13.01A and 13.01B of the Amended Answer to the Petition, contrary to Order VIII Rule 1(2) of the Matrimonial Causes Rules. That, the trial Court misapplied Order VIII Rule 1(2) of the Matrimonial Causes Rules when it granted the Respondent leave to smuggle in new claims in paragraphs 13.01A and 13.01B of the Respondent?s Amended Answer to the Petition. Paragraphs 13.01A and 13.01B of the Amended Answer to the Petition were highlighted to submit that, there were no issues between the parties since the Appellant did not raise any issue on settlement of property nor was there any Cross-Petition by the Respondent. The cases of Madukolu v. Nkemdilim (supra); Bronik Motors Ltd v. Wema Bank Ltd (1983) 6 S.C. 158 and Sanusi v. Ayoola (1992) 9 NWLR (pt.265) 275 were then cited to submit that, the defect in jurisdiction is fatal to the entire proceedings. Order VIII Rule 1(2) of the Matrimonial Causes Rules and the cases of U.A.C. v. Macfoy (1961) 3 All E.R. 1169 and Gbileve & Anor v. Addingi & Anor
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(2014) 2 SCM 157 were relied upon to further submit that, settlement of property cannot be raised via an answer to a petition, and therefore the trial Court robbed itself of jurisdiction when it allowed the issue to be raised in the Answer to the Petition without a proper Cross-Petition.
On issue two, learned counsel for the Appellant cited Section 72 of the Matrimonial Causes Act to contend that, the general powers of the Court are listed under Section 73 of the Matrimonial Causes Act. It was further contended that, the trial Court wrongly exercised his discretionary powers under Section 72 of the Act when it failed to take into consideration all the relevant principles that will enable the Court arrive at a just and equitable determination of the case. That, in the determination of the issue, the learned trial Judge placed excessive reliance on the following facts:
(a) That the property (Exhibit ?P2?) was acquired in the joint names of the Appellant and Respondent as husband and wife; and
(b) On the equitable principle that equality is equity.
The case of Brown (Pritchard) v. Pritchard (1973) W.L.R. 1366 was cited to submit
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that, in the execution of trust property jointly held by husband and wife, upon divorce, regard should be had to the primary objective of acquiring the property; which is to provide a home and not for sale. That in the circumstances, steps should be taken to preserve it as such for the partner and children, but giving the outgoing partner such compensation as is reasonable in the circumstances. Referring to the testimony of the Respondent under Cross-Examination at page 85 of the Record of Appeal, learned counsel contended that the trial Court did not consider the testimony of the Appellant, which was not controverted, that he bought the land before he married the Respondent. That, he included the name of the Respondent out of love and with the consideration that they will continue to live as husband and wife. Furthermore, that by virtue of Exhibit ?P1?, it is obvious that the consideration for which the Respondent?s name was included in Exhibit ?P2? has failed. That in the circumstances, the name of the Respondent should have been struck out.
Learned Counsel for the Appellant then cited the case of Obawole v. Coker (1994) 5
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NWLR (pt. 345) 16 to contend that the testimony of the Respondent was admission of facts against her interest, and should be resolved in favour of the Appellant. Section 72(1) and (2) of the Matrimonial Causes Act was then cited to submit that, before a judge can make any order as done in the instant case, it must require the party or either of the parties to carry out the order for the benefit of the parties. That in the instant case, the trial Court did not demand any of the parties to carry out any obligation in respect of the settlement of the property which he refused or failed to obey. Several cases such as Alhaji Aliyu Balogun v. Alhaji Shittu Labiran (1988) 3 NWLR (pt.30) 66; Issa v. UBN (1993) 4 NWLR (pt.288) 510 at 530; Guda v. Kitta (1999) 12 NWLR (pt.629) 21, etc, were cited in support and to further submit that, though an appellate Court will not reverse a discretionary order of the trial Court but where the order results in injustice to one of the parties, it will interfere.
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It was therefore contended by the learned counsel for the Appellant that the learned trial Judge did not exercise his discretion judicially and judiciously; and
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therefore, upholding the judgment of the trial Court will cause great injustice to the Appellant who is currently in occupation of the dispute property. That the Respondent did not lead evidence to show that she contributed in the purchase of the property nor did she adduce evidence to establish that ownership of the property is held between her and the Appellant in equal proportions. The cases of Inua v. NTA (1961) 1 All N.L.R.576; Ogunmakin v. Administrator of Osun State (1993) 3 NWLR (pt.618) 201; Kalio v. Daniel Kalio (1975) 2 S.C. 15 and Omotunde v. Omotunde (2000) 9 NWLR (pt. 167) 277 were cited in support. We were accordingly urged to allow the appeal and set aside the order for sale of the property covered by Exhibit ?P2?.
In response, Mr. J.O.A. Ajakaiye of learned counsel for the Respondent submitted that, it is settled law that when dissolution of a marriage has been pronounced upon, ancillary matters arising therefrom are settled under the common law principles and equity, such as by initiating an action by way of Originating Motion or Summons supported by affidavit. The cases of Sobowale v. Sobowale (1969) NMLR 278 at 281 and
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Falobi v. Falobi (1976) NMLR 169 at 178 were cited in support and to further submit that, the Record of Appeal at pages 71 ? 78 of the Record of Appeal shows that such process was initiated and decided upon and there is no appeal against that Ruling. In the circumstances, learned counsel for the Respondent submitted that all the arguments of the Appellant on the issue of jurisdiction are misconceived and ought to be discountenanced.
Learned Counsel for the Respondent then went on to submit that, where the cause of action is established, the Court will not deny a party of a relief merely because it is brought under a wrong law. The cases of Henry Stephens Engineering Co. Ltd v. Complete Home Enterprises Ltd (1987) 1 S.C.54 at 73 and Falobi v. Falobi (supra) at 177 were cited in support. The case of United Australia Ltd v. Barclays Bank Ltd (1941) A.C.1 at 29 was then cited to submit that, the Courts do not allow the forms of action to deter them from rendering substantial justice in deserving cases. Furthermore, that where an action is commenced by an irregular procedure as alleged by the Appellant, a party who does not complain but took active part
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in the proceedings, he cannot later he heard to complain or take advantage of the irregularity to contend that incurable injustice had been done to him. The cases of Olubode v. Salami (1985) 2 NWLR (pt.7) 282; Noibi v. Fikolati (1987) 1 NWLR (pt.52) 613; Adebayo v. Shonowo (1969) 1 All NLR 176; etc, were cited in support. The case of Saude v. Abdullahi (1989) 7 S.C.N.J.216 at 217 ? 219 was then cited to submit that procedural irregularity is of no consequence unless miscarriage of justice is occasioned; but that such miscarriage of justice was not established in the instant case.
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It was further submitted by learned counsel for the Respondent that, the learned trial Judge found that the proceedings on ancillary relief was duly initiated by Originating Motion/Summons and coupled with the Amended Respondent?s Answer to the Petition and the Reply based on the Ruling of Ige, J (as he then was) at pages 71 ? 78 of the Record of Appeal. That the trial Court was therefore right in assuming jurisdiction to hear the case, as the Originating Summons was never abandoned as contended by the Appellant. On that note, we were urged to dismiss the appeal and affirm the judgment of the Court below.
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Now the complaint of the Appellant here is that the trial Court had no competence to entertain the Respondent?s reliefs as contained in the Amended Answer to the Petition. That the reliefs sought by the Respondent and granted by the trial Court being one for settlement of property falls under the definition of Matrimonial Cause within the contemplation of Section 114 of the Matrimonial Cause Act. That in the circumstances, it should have been initiated by way of a Cross-Petition. Furthermore, that the learned trial Judge was not right when it assumed jurisdiction to entertain the Respondent?s Claims in paragraphs 13.01A and 13.01B of the Amended Answer to the Petition contrary to Order VIII rule 1(2) of the Matrimonial Causes Rules.
It is not in doubt that amendment to petition can be made as stipulated in Order VIII Rule 1(1) of the Matrimonial Causes Rules which stipulate that:
?1(1). Subject to this rule, all such amendments as are necessary for the purpose of determining the real questions in controversy between the parties may be made to a pleading as are made in accordance with the succeeding provisions of this part.?
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Sub-rule (2) of the said Order VIII Rule 1 of the Matrimonial Causes Rules the stipulates that:
?1(2). An amendment shall not be made to a petition or answer; if the amendment would have the effect of instituting proceedings of a kind referred to in paragraph (c) of the definition of ?Matrimonial Cause.?
Incidentally, the amendment to the Answer to the Petition was granted by the trial Court on the 26/2/2003, per Ige, J. In granting the application to amend, Ige, J. (as he then was) held as follows:
?There is no doubt that this Court has the power to grant amendment to pleadings be it Petition or Answer where it will enable the Court determine the real question in controversy. The Court?s power is however curtailed in Sub-rule (2) of Order VIII Rule 1 of Matrimonial Causes Rules, 1983. Where the amendment sought is capable of being analogous to an institution of an action concerning matters mentioned therein, then it will be refused.?
The learned trial Judge, Ige, J (as he then was) then took into consideration the fact that the issue subject of the
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amendment sought related to ?settlement?, in exercising his discretion whether or not to exercise his discretion in favour of the Respondent to the Petition. After also considering the applicable principles of law on the issue, the learned trial Judge held at page 76 ? 77 of the Record of Appeal as follows:
?Applying the above principles to the facts of this case, I am of the view that the amendments sought in this matter are not new to the Petitioner because the main base of the amendments have been claimed in paragraphs 12.09, 13.00, 13.01, 13.02 and 13.03 of the Original Answer to the Petition filed by the Respondent on 8th December, 1999. The facts relied upon for the claim recapitulated above are pleaded in paragraphs 13.04 ? 15.04 of the said Original Answer. The Petitioner, as stated earlier on in this ruling joined issues with the Respondent on all of these matters in paragraphs 1 ? 34 of the Reply to Answer filed by the Petitioner in this Court on 14th May, 2001 and it is dated 14th May, 2001.
I have perused the proposed amendments cautiously and very calmly and I have no doubt in my mind that the
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amendments sought merely give details and further illumination to the properties she is claiming as belonging to her and the Petitioner. Whether she will be able to establish her case against the Petitioner is another matter. This is a matter for trial.
It is equally important to stress that the amendments proposed by the Respondent are not at all caught by the provisions of Order VIII Rule 1(2) of the Matrimonial Causes Rules, 1983 because the Respondent is not setting up an entirely new cause of action or proceedings of the kind stated in Section 114(1)(c) of the Matrimonial Causes Act aforesaid. As a matter of fact the amendment is designed to bring into proper perspective the real matter in controversy in order to enable the Court be in proper position to decide the issues between the parties.?
?The import of the Ruling cited above is that, the claim of the Respondent was properly introduced into the proceedings for divorce between the Appellant and the Respondent. In granting the application, the trial Court also determined that the amendment sought and granted did not introduce anything new to the proceedings and therefore, did not
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infringe Section 114(1)(c) of the Matrimonial Causes Act. That it did not also breach Order VIII Rule 1(2) of the Matrimonial Causes Rules, 1983. There is no appeal against the Ruling of Ige, J (as he then was) delivered on the 26/2/2003. The effect therefore is that the relief sought by the Respondent, subject of this appeal was validly pleaded in the Amended Answer to the Petition. Indeed the facts pleaded relate the a claim for settlement of property covered by Exhibit ?P2?.
?It is not in doubt that, in a divorce proceeding, one of the issues the Courts are often confronted with is the issue of settlement of property, which in most times is acquired during the subsistence of the marriage. When such issues come up before the Court, the trial Court is required to make orders as to settlement of property in a manner that is just and equitable, considering the circumstances of each case. The learned trial Judge realized this fact when he held at page 133 lines 1 ? 11 of the Record of Appeal as follows:
?It is well settled that spouses married under the Matrimonial Causes Act (hereinafter referred to as ?the Act?)
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may, on dissolution of the marriage, apply to the Court for settlement of their properties. Such a claim must be made in the Petitioner?s Petition or in the Respondent?s Answer, as in the instant case?. In the determination of the issue, the Court may, in proceedings under the Act, make an order for the settlement of property to which both or other of the parties is entitled, whether in possession or in reversion, for the benefit of both or either of the parties and the children of the marriage as it considers just and equitable in the circumstances of the case in accordance with the provisions of Section 72(1) of the Act
?In the instant case, the Respondent had pleaded and made a claim of joint ownership of the property covered by Exhibit ?P2?, which is covered by a Certificate of Occupancy registered as No. 25 at page 25 in Volume 3281 of the Register of titles in Ibadan, dated 15th day of September, 1998. It is not in dispute that after the grant of a Petition for divorce, the Court is empowered by Section 72 of the Matrimonial Causes Act to order one party to settle any property or properties to which he or
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she is entitled on any or both parties to the marriage and/or the children of the marriage as the Court may consider just and equitable. In the instant case, the trial Court found that the parties were agreed that upon the grant of the order nisi what remained to be determined is the issue of settlement of the dispute property between the Appellant and the Respondent. The learned trial Judge had therefore made preliminary findings at page 114 line 1 ? 115 line 3 as follows:
?On the 13th day of June, 2001, this Court, presided over by Honourable Justice M.O. Adio, C.J (now Rtd), granted an order nisi for the dissolution of the marriage between the Petitioner and the Respondent. Parties are ad idem that the remaining issue of this petition is the order granted the Respondent by His Lordship, Honourable Justice O.O. IGE, on the 26th February, 2003 which relates to the ownership of the property covered by document dated 15th September, 1998 and registered as Instrument No. 25 at page 25 in Volume 3281 of the Lands Registry at Ibadan pleaded in paragraphs 13.01A and 13.01B of the wife/Respondent?s Amended Answer to the Petition for
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Dissolution of Marriage dated 27th February, 2003 and filed 28th February, 2003.?
It is clear therefore that the issue of settlement of the dispute proper was not in contention before the Court below. The competence of the trial Court to determine the issue of settlement of the property was never contested by the Appellant in the Court below, as the parties were ad idem that the issue be determined by the trial Court. The issue is therefore being raised for the first time in this Court. It is the settled law that, where a party desires to raise a new or fresh issue on appeal, leave of this Court must first of all be sought and obtained. In other words, this Court will not allow a party to raise and argue a new or fresh issue which did not feature in the Court below, to be raised on appeal except where the leave of Court has been sought and obtained. See Obieze v. A.G; Rivers State (2001) 18 NWLR (pt. 746) 524; Owners of M/V Gongola Hope & Anor v. Smurfit (Nig.) Ltd & Anor (2007) 15 NWLR (pt.1056) 189 and Osun State Government v. Dalami (Nig.) Ltd (2007) LPELR ? 2817 (SC). In any case, the trial Court had the vires or jurisdiction by
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virtue of Section 72(2) of the Matrimonial Causes Act to determine on the settlement of the property in dispute. The said Section 72(2) of the Act stipulates that:
?72(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 (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 postnuptial settlement on the parties to the marriage or either of them.?
By this provision therefore, the trial Court has a duty to pronounce on what becomes of the property after the marriage had been dissolved. See Oghoyone v. Oghoyone (2010) 3 NWLR (pt.1182) 564;
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Mgbeahuruike v. Mgbeahuruike (2017) LPELR ? 42434 (CA); Hayes v. Hayes (2000) 3 NWLR (pt.648) 276 and Igwemoh v. Igwemoh (2014) LPELR ? 46807 (CA). See also Doherty v. Doherty (2010) All FWLR (pt. 519) 1165. Thus in the case of Oghoyone v. Oghoyone (supra), this Court, per Rhodes-Vivour, JCA (as he then was) said:
?Anyway one looks at it, the learned trial Judge was correct. Since it is clear that the said property is not included in the list of properties in Exhibit ?P2?, that the parties agreed to share? The learned trial Judge had a duty to make a pronouncement on what becomes of the property after the marriage had been declared void. Section 17 of the Married Women?s Property Act confers on the Judge power to make orders in respect of property in dispute as he thinks fit and such order must be fair, just and equitable. That the parties share proceeds of the sale equally is what is expected in equity. If on the other hand the fact that the marriage is void means no property rights accrue, then the parties were simply living together as friends or in a similar manner. What then becomes of property they both claim to have
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contributed to purchase?. Surely, such property can only be addressed in the way the learned trial Judge did.?
Though it may appear that the above cited case was decided by reference to the Married Women?s Property Act, the principles enunciated therein, are relevant to the facts and circumstances of this case; and in view of Section 72(1) & (2) of the Matrimonial Causes Act.
Now, the learned trial Judge relied on Section 72(1) of the Matrimonial Causes Act and in doing that, the learned trial Judge took into consideration the pleadings of the parties as contained in the Respondent?s Amended Answer to the Petition and the Appellant?s Reply in response to the Answer to the Petition. The learned trial Judge also considered the entire evidence by the parties and particularly Exhibit ?P2? (the Certificate of Occupancy), and after making findings of facts, held at page 156 lines 9 ? 13 of the Record of Appeal as follows:
?In view of the foregoing, I hereby hold that the Respondent is entitled as of right to half of the property conveyed to her jointly with the Petitioner vide the Certificate of
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Occupancy dated 15th September, 1998 and registered as Instrument No. 25 at page 25 in Volume 3281 of the Register of Titles at Ibadan and the building thereon. I so order.
Leg 1 of the Respondent?s prayers as per paragraph 13.01A of the Amended Respondent?s Answer is accordingly granted.?
The learned trial Judge then took refuge in Section 73(d) and (f) of the Matrimonial Causes Act to order that, the property covered by Exhibit ?P2? be sold and the proceeds of the sale thereof, be shared equally between the Appellant and the Respondent. The Chief Registrar of the High Court was accordingly appointed as trustee to superintend the execution of the order of the Court in terms of the sale and sharing of the proceeds. The order of the Court was informed by the findings of fact made by the learned trial Judge as follows:
?I prefer the evidence of the Respondent to that of the Petitioner. I watched the demeanor of both of them in the witness box during trial and I am convinced and find as a fact that the Respondent did take active part in the Stationaries Shop family business which was shown from the evidence to be
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the only means of subsistence of the parties at the material time.?
?
Referring further to the testimony of the Appellant, the learned trial observed as follows:
?According to him, he was dealing in office equipment business since 1988 when he came to Ibadan before he met the Respondent in 1996 and as at when he met her, there was no agreement as to business. I find it difficult to see how a man born in 1964, who conducted a traditional marriage in 1994 when was 30 years old with a JSS III pupil who was born in 1980 when she was only 14 years old? and later married her under the Act in 1996 can claim justifiably and even morally that he did not enter into any agreement with the said ?young person? as to the business he was carrying on at the material time. Although the Respondent, in paragraph 2 of the Amended Answers to the Petition, denied that she was born in 1980 but 1977. Even at that, she was only 17 years old in 1994 when the traditional marriage took place, after which, according to the Petitioner under Cross-Examination, the Respondent used to come to his house intermittently to stay and went back to her mother
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and only came to live with him permanently after the church wedding in 1996 and that he did not support her staying with her mother after the said traditional wedding. This, to my mind, goes to show that even if the young girl was not living with the Petitioner permanently after the traditional marriage, she was staying with him more than she was staying with her mother.?
?
The learned trial Judge in further findings of facts went on to state that:
?I do not believe the Petitioner did not know the Respondent was a student of Queen School, Ibadan because he did not tell us what the young girl of 17 years of age she conducted traditional marriage with in 1994 told him she was doing or engaged in. He even said he asked the Respondent where she was schooling but he did not tell the Court the answer the Respondent gave him. I believe and find as a fact that the Petitioner knew the fact that the Respondent was a JSS III student at the time he conducted traditional marriage with her and I believe the Respondent and also find as a fact that she left school when the Petitioner persuaded her to come and join him in his Stationaries business. I also
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believe and find as a fact the Petitioner actually engaged the Respondent in the carrying on and for the purpose of his business which was the only means of subsistence of their family.?
The learned trial Judge went on to make findings of fact as follows:
?The Petitioner said further that he single-handedly bought the property in question before the issuance of Exhibit ?P2? and processed same by submitting the application form in which he submitted the two names despite the fact that the Respondent neither took part in his business nor contributed a kobo to the acquisition of the said property but because he had love and affection for the Respondent and because of his children, which regrettably, eventually failed to come. It is also in evidence that, under these circumstances, the Petitioner even went further to hand over the document of title of the property, Exhibit ?P2?, to the Respondent.?
?
It should be noted that there is no appeal against those findings of fact made by the trial Court. It is the law that, where the Court has made findings of fact, a party who disputes such findings must appeal
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against same. Where such party does not appeal, he is deemed to have admitted same and those facts remain established. See Ogunbiyi v. Ishola (1996) 5 SCNJ 145 at 154; Oshodi & Ors v. Eyifunmi & Anor (2000) LPELR ? 2805 (SC) and Ilona v. Idakwo & Anor (2003) LPELR ? 1496 (SC).
Now, it is the law that in making an order for the settlement of property in a matrimonial cause, the Court will consider what is just and equitable in the circumstances of a given case. Thus, what is suitable and appropriate in one case may not meet the justice of another. See Kakulu v. Kakulu (2016) LPELR ? 41552 (CA); Aderounmu v. Aderounmu (2003) 2 NWLR (pt.803) 1 and Kafi v. Kafi (1986) 3 NWLR (pt. 27) 175. In the case of Ibeabuchi v. Ibeabuchi (2016) LPELR ? 41268 (CA), this Court held that, what the Court will consider in the exercise of its discretion in making an award under the settlement of property principles, are whether or not the property in question was acquired by the parties or by one of them during the course of the marriage, and if so, what was the contribution of each party to the cost of the acquisition. It was however held,
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per Abiru, JCA in the Ibeabuchi case (supra) that:
?It is correct that the contribution of a party does not necessarily have to be in the nature of 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… It is however essential that the property 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.?
A case germane to the facts of this case is Kafi v. Kafi (1986) 3 NWLR (pt. 27) 175. In that case, after dissolving the marriage based on the wife?s Cross-Petition, the Court in the exercise of its powers under Section 72 of the Matrimonial Causes Act made an order for settlement of certain property in favour of the wife and children of the marriage. On appeal by the husband, it was argued that, there was no evidence that the wife was a joint purchaser or developer of
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the property with the husband. In rejecting that argument, this Court held that, evidence of joint purchase or development was not necessary in making such an order. In taking that view, the Court considered that the wife had actively managed the husband?s business at Ilesha when the husband moved to Lagos to establish another shop. The wife also actively participated in the supervision and construction of the husband? properties in Lagos. Furthermore, that the wife and the husband jointly negotiated and purchased the plot of land on which the property was built; and finally, that the wife provided the necessary support for the business activities of the husband. In dismissing the appeal, this Court held that:
?This finding, be it noted, speaks not only of contribution towards development of the properties, but also contribution to success of the business of the Appellant. It is on the basis of these two considerations that the said properties ?can be regarded as the product of their joint efforts?. This contribution has not been quantified by the Respondent only in monetary terms, vide her affidavit of means.
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The Court?s findings are also not so limited. It is therefore wrong to conclude that the order was made ?on the basis of joint purchase and development? only. It was based on more than that, as the evidence which was led, and which the trial Judge believed, shows.?
?In the instant case, the evidence led at the trial Court show unequivocally that the Appellant married the Respondent when she was in junior secondary school. The Appellant who was much older, convinced her, barely a fourteen (or sixteen) years old teenager to abandon her academic pursuit and therefore her future. The evidence led also show that the Respondent actively and physically participated in the running of the Appellant?s business which experienced sudden increase in the course of the marriage. The financial status of the business and the family also boomed. Most importantly, it was at that time that the Appellant purchased and developed the plot of land covered by the Certificate of Occupancy (Exhibit ?P2?) in their joint names. Though the Respondent might not have contributed financially or in the nature of cash outlay towards the purchase of the
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land and subsequent development thereof, there is uncontroverted evidence that she actively contributed towards the success of the business of the Appellant which ultimately fetched the money with which the land was developed. In the circumstances, it will be unjust and inequitable for the Court to accede to the selfish plan of the Appellant do deny her the fruit of what she had sacrificed her future to achieve. This Court, being of law and equity, will not allow that to happen. The learned trial was therefore right when he ordered that the property in question be sold and the proceeds of sale be equally shared between the Appellant and the Respondent.
Having held as above, it is obvious that this appeal lacks merit. It is accordingly dismissed. The judgment of the Oyo State High Court of Justice holden at Ibadan, delivered on the 21st day of June, 2010 in Suit No. I/805HD/99 is hereby affirmed. I award One Hundred Thousand Naira (N100,000.00) as the cost of this appeal in favour of the Respondent and against the Appellant.
JIMI OLUKAYODE BADA, J.C.A.: I read before now the draft of the lead Judgment of my learned brother
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HARUNA SIMON TSAMMANI, JCA just delivered and I agree with my Lord?s reasoning and conclusion.
It is also my view that this appeal lacks merit and it is dismissed by me.
I abide by the consequential order made in the said lead Judgment.
FOLASADE AYODEJI OJO, J.C.A.: I have had the opportunity to read in draft the judgment Just delivered by my learned brother, Haruna Simon Tsammani JCA and I agree with the reasoning contained therein and the conclusion thereat. His Lordship has resolved all the issues submitted for determination in this appeal. I have nothing more to add. I also dismiss the appeal and adopt all the consequential orders made in the lead judgment including the order as to costs.
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Appearances:
B.O. Okeke, Esq.For Appellant(s)
J.O.A. Ajakaiye, Esq.For Respondent(s)
Appearances
B.O. Okeke, Esq.For Appellant
AND
J.O.A. Ajakaiye, Esq.For Respondent
