MRS. EYITOMI ERIN OYEDIPE v. MRS. ABIMBOLA M. OPARISON & ANOR
(2012)LCN/5658(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 13th day of November, 2012
CA/L/138A/01
RATIO
JUDGMENT: WHERE A SLIP OR ERROR IN A JUDGMENT WILL BE REVERSED BY THE APPELLATE COURT
“I will adopt what I said in the Judgment earlier delivered today as my contribution to this- “I only wish to comment on the Appellant’s grouse that the lower court relied on events that supposedly occurred after the Petition was filed. It is true that it is wrong of a court to act on subsequent facts in a matter before it, but his argument that the evidence regarding the issue of adultery should be discountenanced because she did not file a supplementary petition, cannot be sustained. Apart from the fact that the Respondent pleaded in the petition itself that the Appellant “has resumed and continued the act of adultery with the co-Respondent and both of them are presently residing together, it is not every slip or error committed by the Court that leads to a reversal of its Judgment by an appellate court – see Bayol v. Ahemba (1999) 10 NWLR (pt.623) 381, wherein Achike, JSC, stated – “For a slip or error in a judgment to lead to its reversal by an appellate court, it must have substantially affected the outcome of the decision. It is therefore not enough to allege error or slip in the judgment in question but the party complaining must demonstrate that the error or slip substantially affected the result of the decision as to result in a substantial miscarriage of justice.” Per AUGIE, J.C.A.
JUSTICES
AMINAT ADAMU AUGIE Justice of The Court of Appeal of Nigeria
ADAMU JAURO Justice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
Between
MRS. EYITOMI ERIN OYEDIPE Appellant(s)
AND
1. MRS. ABIMBOLA M. OPARISON
2. DR. MORAKINYO OPARISON Respondent(s)
RITA NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment): This Appeal emanates from the Co-Respondent, in Suit No.ID/I57WD/92 to a Matrimonial causes proceedings in the High Court of Lagos State, Lagos Judicial Division.
It is against the Judgment of Hon. Justice Moni Fiafade, delivered on the 14th day of January 1999, whereby she found the co-respondent guilty of adultery with the Respondent to the Petition.
The Respondents were husband and wife
The Appellant was consequently told to pay the sum of N100,000.00 (One hundred thousand naira) damages.
SNYNOPSIS OF THE CASE
In a Matrimonial Causes proceedings before a Lagos State High Court presided over by Hon. Justice Moni Fiafade, the Appellant was cited as the co-Respondent. The Suit was for Judicial Separation of the 1st and 2nd Respondents.
The 1st Respondent had alleged that the Appellant committed adultery with the 2nd Respondent claiming the sum of Three Million Naira (N3,000,000.00) as damages.
At the trial, the Appellant did not testify but she filed a separate answer to the petition.
The Appellant had proffered two issues for determination. They are:
1. Is the Lower Court’s finding of adultery against the Appellant sustainable in the light of the manifest deficiencies in the pleadings and evidence of the 1st Respondent on that issue?
2. Assuming, but not conceding, that adultery was established, is the lower Court’s consequential award of damages against the Appellant not liable to be set aside when the award did not reflect or flow from a consideration of the relevant principles and procedure, apart from the fact that such claim could only be made in a petition for dissolution of marriage and not one for a judicial separation as presented by the 1st Respondent?
Submitting that Issue No.1 is distilled from the Appellant’s first ground of Appeal, the Appellant argues that when the petition which is copied at Pages 2 – 7 of the Record states in its introductory paragraph, that it was presented on the grounds of adultery, and that the facts relied on by the petitioner as constituting each ground specified above are as follows:
a) Refusal to consummate the marriage
b) Adultery and intolerability,
Pages 4 & 5 of the Record of Appeal. The facts, he argues are not facts at all, but merely a repetition of the grounds.
Referring to order 5 Rule 1 (2) (g) of the Matrimonial causes Rules, he argues that the petitioner shall state the facts, but not the evidence by which the facts are to be proved.
with Respect, that provision of the Rules only provide for the format a petition must be.
A cursory look at Pages 2 – 6 of the Record of Appeal, show that the Petition complied essentially with the Provisions of the Matrimonial Causes Act – Order 5 Rule 3 thereof. In the present petition, ex facie it states facts as to viz:
1. MARRIAGE
2. BIRTH OF PETITIONER & RESPONDENT
3. DOMICILE OR RESIDENCE
4. COHABITATION
5. CHILDREN
6. FACTS
7. CONDONATION, CONNIVANCE & COLLUSION
8. PROPOSED ARRANGEMENT FOR CHILDREN
9. PROPOSED ARRANGEMENT FOR CHILDREN EDUCATION
10. MORAL OBLIGATION
11. MAINTENANCE
12. CUSTODY
13. ACCESS
14. ORDERS SOUGHT
These facts were stated on the petition. Order 5, Rule 3 of the Matrimonial Causes Rules, does not envisage where facts as to Adultery should be stated on the Petition.
Therefore the argument of Appellant at page 4 of her brief, that the mandatory nature of this rule and the total absence of any fact(s) in the petition to support the allegation/ground of adultery makes the petition fatally flawed, and cannot be the basis for any finding of adultery is misconceived. Same is hereby discountenanced.
The petition has argued that the facts of adultery relied on, concern events that supposedly occurred after the petition was filed.
Now from records, (Page 1 of Record of Appeal) the Petition was filed on the 16th of December 1992.
At page 42 of the record of Appeal (REPLY TO ANSWERS AND ANSWER TO CROSS-PETITION), Paragraphs 2 and 3 are instructive – I shall reproduce same verbatim.
2. “The Respondent and co-respondent have exhibited much familiarity between themselves and they are often together at different occasion.
3. Specifically on the 20th day of February 1994, when the Petitioner paid a visit to a family friend, Mr. & Mrs. Kunle Tuyo No. 2 Obanra close, off Obanra Avenue, Ikeja, the Petitioner met both the Respondent and Co-respondent who had come together to visit the said Mr & Mrs. Kunle Tuyo and there the Petitioner noticed that the correspondent was pregnant.
I am of the humble view that the facts in Paragraph 2, depict a situation, whereby the Appellant and Co- respondent, had been familiar over time, culminating in the filing of the Petition and indeed after the petition was filed.
For the learned trial Judge to have relied on events that occurred after the petition was filed is of no moment. The fact that he relied on all available facts before him, is enough.
That argument of Appellant is misconceived. There was therefore no need for the 1st Respondent to file a supplementary petition.
Exhibit “C” records one Mr Akin Oparison and one Eyitomi Erin as the father and mother of a baby girl called Amada Osieyi.
The learned trial Judge had this to say in her Judgment, (specifically pages 166 -167 of the Record of Appeal).
I deem it pertinent to reproduce same.
“….. Co-respondent was seen pregnant in the company of respondent on 24/2/94. Exhibit C, the birth certificate tendered states that a baby girl named Amadaeyi Oluwatodimu Oparison was born to a father called Akin Oparison a Management Consultant a mother called Eyitomi Erin – a legal Practitioner on 6th April 1994. Cross- examined on Exhibit C, respondent said he is neither saying he is not the father of the child in Exhibit C nor that he is the father. Respondent in deliberate efforts to absolve himself from the allegation refused to answer question from the Counsel of Petitioner and error from the Court with the aid of his Counsel who told the Court that it is forbidden in respondent’s home or village to answer questions which amount to Counting number of children a person has. Respondent confirmed his name is Morakinyo Oporison and co-respondents’ names ore Eyitomi Erin – Oyedipe. I cannot agree more with Counsel for petition that Akin in Exhibit C is a shortened form of Morakinyo. Again the names in Exhibit C1 agree are the names of co-respondents. She has not come to count to deny it. What is more, Akin Oparison in Exhihit C is said to be Management Consultant…
…….Exhibit C stated the mother of the child Eyitomi Erin to be a legal practitioner. I find respondent and co-respondent are the father and mother of the child born in Exhibit C on 16/4/94”
He went further –
“…Considering all the uncontroverted and unrebutted evidence before the Court, admissions by Respondent inclusive and circumstances surrounding this case, I cannot but find that Respondent did in fact like an adulterous life with co-respondent which resulted in the birth of the child Amadaoseyi Oluwatodimu Oparison. I find respondent and co-respondent committed adultery while the marriage between petitioner and respondent still subsists”
With respect I cannot disturb this finding.
This issue is consequently resolved in favour of the 1st respondent and against the Appellant.
On Issue No. 2, the Appellant’s Counsel argued that the court below had failed to carry out any assessment of the actual value of the 2nd Respondent (Appellant in this Appeal) as determinable by his pecuniary assistance to the 1st Respondent before the Appellant supposedly entered into the scene. He refers to Order 14 Rule 4 (5) (6) and (7) of the Matrimonial Causes Procedure Rules. This, in my view is misconceived as the provisions of law referred to have to do with ancillary relief as it affects spouses, maintenance of a party to the proceedings, or of a child of the marriage.
Order 14 Rule (1) has this to say
“This rule shall not apply to proceedings for ancillary relief that are instituted by petition or by answer to petition.”
Order 14 Rule 7(1) (assessment of Court) specifically says
“This rule shall apply in a case where proceedings for ancillary relief have been instituted seeking a decree with respect to the maintenance, pending the disposal of proceedings of the Claimant of a child of the marriage or of the Claimant and a child of the marriage”
At page 174 of the Record of Appeal, the learned trial judge had this to say:
Co-respondent is also said to have abandoned her pleadings. On the unchallenged evidence of petitioner I find co-respondent is a cousin of petitioner’s. I agree must have aggravated petitioners injured feeing in this matter. While damages against co-respondent are not awarded to punish her, they are awarded to compensate the petitioner for losing the consortium of her husband and the outrage to her honour and family caused by the adultery. Petitioner in this case must have placed some trust, reliance and friendship in co-respondent who is a cousin of her. It is no gainsaying that the impact of the adultery on petition has plunged her into untold hardship.,
I am of the view that in the absence of any specific provisions in the Matrimonial causes Rules, as to the assessment of damages to co-respondent, where adultery is alleged, the learned trial Judge has a discretion in the matter.
The award of damages should not be disturbed as it was based on grounds of law and equity.
In the circumstances, the appeal is devoid of merit and same is hereby dismissed in its entirety.
The Judgment of the Honourable Justice Moni Fafiade, delivered on the 14th day of January 1989 is hereby affirmed. No order as to costs.
AMINA A. AUGIE, J.C.A.: I have read before now the lead Judgment just delivered by my learned brother, Pemu, JCA and I agree with him that the appeal lacks merit.
This is a sister appeal to the main appeal filed by the 2nd Appellant, wherein Judgment was delivered earlier on today by my learned brother. The 1st Appellant in this appeal was cited as a Co-Respondent in the Petition filed by the Respondent at the lower Court, and I will adopt what I said in the Judgment earlier delivered today as my contribution to this-
“I only wish to comment on the Appellant’s grouse that the lower court relied on events that supposedly occurred after the Petition was filed. It is true that it is wrong of a court to act on subsequent facts in a matter before it, but his argument that the evidence regarding the issue of adultery should be discountenanced because she did not file a supplementary petition, cannot be sustained. Apart from the fact that the Respondent pleaded in the petition itself that the Appellant “has resumed and continued the act of adultery with the co-Respondent and both of them are presently residing together, it is not every slip or error committed by the Court that leads to a reversal of its Judgment by an appellate court – see Bayol v. Ahemba (1999) 10 NWLR (pt.623) 381, wherein Achike, JSC, stated –
“For a slip or error in a judgment to lead to its reversal by an appellate court, it must have substantially affected the outcome of the decision. It is therefore not enough to allege error or slip in the judgment in question but the party complaining must demonstrate that the error or slip substantially affected the result of the decision as to result in a substantial miscarriage of justice”.
In this case, the lower court had more than enough evidence before it to sustain the allegation of adultery, and it is for this and the other reasons in the lead Judgment that I also hold that the appeal lacks merit and dismiss same”.
In other words, I also dismiss this appeal for lacking in merit. I also abide by the consequential orders in the lead Judgment.
ADAMU JAURO, J.C.A.: I have had the benefit of reading in draft the lead Judgment of my learned brother, R. N. Pemu, JCA, just delivered. I agree with his reasoning and conclusion that the appeal lacks merit and should be dismissed.
I also find no merit in the appeal and same is hereby dismissed by me. The judgment of the lower Court delivered on 14th January, 1999 is hereby affirmed
Appearances
F. C. A Okoli Esq., with him is Ayodeji Faleye Esq.For Appellant
AND
For Respondent
