OGUNJOBI v. OGUNJOBI (2021)

OGUNJOBI v. OGUNJOBI

(2021)LCN/15492(CA)

In The Court Of Appeal

(IBADAN JUDICIAL DIVISION)

On Friday, January 22, 2021

CA/IB/196/2016

RATIO

RELEVANCE OF THE DOCTRINE OF LIS PENDIS

It is trite that the doctrine of lis pendis prevents the effective transfer of rights or interest in any property which is the subject of an action pending in Court during the pendency of the action. See ORONTI VS. ONIGBANJO (2012) 12 NWLR (PT. 1313) 23; OSIDELE VS. SOKUNBI (2012) 15 NWLR (PT.1324) 470; BFI GROUP CORPORATION VS. BUREAU OF PUBLIC ENTERPRISES (2012) 18 NWLR (PT. 1322) 209. PER FOLASADE AYODEJI OJO, J.C.A.

DISCRETIONARY POWER OF COURT: THE POWER OF A COURT TO ORDER PARTITIONING OF PROPERTY IN A DIVORCE PROCEEDING

The power of a Court to order partitioning of property in a divorce proceeding is an exercise of its discretionary powers which must be exercised judicially and judiciously. See Section 72(1) and (2) of the Matrimonial Causes Act which provide as follows:
“(1) The Court may, in proceedings under this Act, by order require the parties to the marriage, on 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.

PLEADINGS: RELEVANCE OF AVERMENTS IN PLEADINGS

It is trite that pleadings is not evidence and any averment in the pleadings not supported by evidence is deemed abandoned. Any averment in the pleadings on which no evidence is given except where it is admitted by the other party go to no issue. See CAMEROON AIRLINES VS. OTUTUIZU (2011) 4 NWLR (PT. 1238) 512; OJO VS. GHARORO (2006) 10 NWLR (PT.987) 173 AND IFETA VS. SHELL PETROLEUM DEVELOPMENT COMPANY (NIG.) LTD. (2006) 8 NWLR (PT.983) 585. PER FOLASADE AYODEJI OJO, J.C.A.

CIVIL PROCEEDING: BURDEN OF PROOF

The law is settled that the burden of proof in civil cases is on the person who desires the Court to give judgment in his favour and who will fail if no further evidence is given on either side. See Sections 131 and 132 of the Evidence Act and the cases of AKINBADE VS. BABATUNDE (2018) 7 NWLR (PT. 1618) 366; GBAFE VS. GBAFE (1996) 6 NWLR (PT. 455) 417 and EZEMBA VS. IBENEME (2004) 14 NWLR (PT. 894) 617. PER FOLASADE AYODEJI OJO, J.C.A.

APPEAL: POSITION OF THE LAW WHERE THERE IS NO GROUND OF APPEAL WHICH CHALLENGES SPECIFIC FINDINGS OF FACT

The law is settled that where there is no Ground of Appeal which challenges specific findings of fact, the adverse findings would be deemed as acceptable to the Appellant. Such findings stand admitted and undisputed. They remain valid and binding on all parties. See ENL CONSORTIUM LTD. VS. DONASULU BROTHERS NIGERIA LTD. (2020) 8 NWLR (PT. 1725) 179; HANATU VS. AMADI (2020) 9 NWLR (PT. 1728) 115; OLUKOGA VS. FATUNDE (1996) 7 NWLR (PT. 462) 516 and ANYANWU VS. OGUNEWE (2014) 8 NWLR (PT. 1410) 487. PER FOLASADE AYODEJI OJO, J.C.A.

DIVORCE: GROUND UPON WHICH DISSOLUTION OF MARRIAGE MAY BE ESTABLISHED

The law is settled that the only ground upon which a party seeking for dissolution of his marriage may base his petition under the Matrimonial Causes Act is that the marriage has broken down irretrievably. See Section 15 (1) of the Matrimonial Causes Act Cap 220 Laws of the Federation of Nigeria which provides as follows:
“A petition under this Act by a party to a marriage for a decree of dissolution of the marriage may be presented to the Court by either party to the marriage upon the ground that the marriage has broken down irretrievably”.
Section 15 (2) of the Act (supra) provides for situations when the Court shall hold the marriage to have broken down irretrievably. They are:

a) That the Respondent has willfully and persistently refused to consummate the marriage.
b) That since the marriage the Respondent has committed adultery and the Petitioner finds it intolerable to live with the Respondent.
c) That since the marriage the Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with the Respondent.
d) That the Respondent has deserted the Petitioner for a continuous period of at least one year immediately preceding the presentation of the petition.
e) That the parties to the marriage have lived apart for continuous period of at least two years immediately preceding the presentation of the petition and the Respondent does not object to a decree being granted.
f) That the parties to the marriage have lived apart for a continuous period of at least three years immediately preceding the presentation of the petition.
g) That the other party to the marriage has, for a period of not less than one year failed to comply with a decree or restitution of conjugal rights made under this Act.
h) That the other party to the marriage has been absent from the Petitioner for such time and in such circumstances as to provide reasonable grounds for presuming that he or she is dead. PER FOLASADE AYODEJI OJO, J.C.A.

APPEAL: ESSENCE OF A GROUND OF APPEAL

It is trite that the essence of a Ground of Appeal is to give sufficient notice and information to the Respondent of the precise nature of the complaint of the Appellant against the judgment appealed against.
Order 7 Rule 3 of the Court of Appeal Rules 2016 provides that a vague Ground of Appeal shall not be permitted and it is liable to be struck out. A vague Ground of Appeal is that which is imprecise, not cogent and not concise. It is one that is inaccurate, verbose, large, rigmarole and it is one incapable of making the Respondent or the Court understand what exactly it connotes. However, where the adverse party fully understands the complaint in the Ground of Appeal such ground cannot be incompetent. No Court should sacrifice substantial justice on the altar of technicalities or irregularities where the complaint has not occasioned a miscarriage of justice. A Court would therefore, in the determination of the competence of a Ground of Appeal consider the Ground of Appeal itself and the particulars in support of same. Once the Court is satisfied that the Respondent understands the complaint therein, it should not strike it out no matter how inelegantly drafted. See AGWU VS. JULIUS BERGER NIGERIA PLC (2019) 11 NWLR (PT. 1682) 165; LAGGA VS. SARHUNA (2008) 16 NWLR (PT. 1114) 427 and OLORUNTOBA-OJU VS. ABDUL RAHEEM (2009) 13 NWLR (PT. 1157) 83. PER FOLASADE AYODEJI OJO, J.C.A.

APPEAL: THE PRIMARY OBJECTIVE OF FILING A PRELIMINARY OBJECTION

It is trite that the primary objective of filing a Preliminary Objection is to terminate the proceedings at an early stage. Where a Preliminary Objection succeeds, the appeal would be held to be incompetent. It is therefore, expedient for a Preliminary Objection to be considered first before a consideration of the issues raised for the determination of an appeal. See OKOROCHA VS. UNITED BANK FOR AFRICA PLC (2018) 17 NWLR (PT. 1649) 441; AKEREDOLU VS. MIMIKO (2014) 1 NWLR (PT. 1388) 402; FIRST BANK OF NIGERIA PLC VS. T.S.A. INDUSTRIES LIMITED (2010) 15 NWLR (PT. 1216) 247 and ORIANZI VS. ATTORNEY-GENERAL RIVERS STATE (2017) 6 NWLR (PT. 1561) 224. PER FOLASADE AYODEJI OJO, J.C.A.

Before Our Lordships:

Jimi Olukayode Bada Justice of the Court of Appeal

Haruna Simon Tsammani Justice of the Court of Appeal

Folasade Ayodeji Ojo Justice of the Court of Appeal

Between

OGUNJOBI VICTOR BABAKEMI APPELANT(S)

And

OGUNJOBI INNAKWE CHINYERE RESPONDENT(S)

FOLASADE AYODEJI OJO, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Ogun State High Court, sitting in Abeokuta in Suit No. AB/237/2013.
BETWEEN OGUNJOBI VICTOR BABAKEMI AND OGUNJOBI INNAKWE CHINYERE delivered on 12th February, 2016.

The Appellant took out a divorce petition against the Respondent before the lower Court wherein he sought for the dissolution of the marriage between him and the Respondent. The reliefs sought in the petition are as follows:
(a) A decree of dissolution of marriage on the ground that the marriage has broken down irretrievably in that
(b) Since the marriage the Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with her.
(c) An Order granting the Petitioner the custody of the children of the marriage.

The Respondent filed an answer to the petition wherein she incorporated a cross petition in which she sought the following reliefs:
(a) A decree of dissolution of marriage celebrated between the Petitioner and Respondent on 22nd July, 1995 on the ground that the marriage has broken down irretrievably.

(b) Custody of (1) Ewaoluwa Ogunjobi and Ifeoluwa Ogunjobi and access to the Cross Respondent during school vacation.
(c) An Order on the Cross Respondent to be responsible for the school and other fees, clothing and medical bills of the children of the marriage.
(d) An Order for the partitioning into two equal parts of the following properties for the benefit of the Respondent:
1. 2 Plots of land at Federal Housing Estate, Obada Oko.
2. One plot of land at Federal Housing Estate, Elega Abeokuta and
3. 3 Bedroom Bungalow with boys’ quarter and an adjoining one acre of empty land at No. 21, Adetokunbo Ademola Crescent, Ibara GRA.
(e) That the Respondent be ordered to pay the Respondent the sum of N1 million for the trauma and emotion.

At the close of evidence at the lower Court, Learned Counsel for the respective parties filed and adopted written addresses. In a considered judgment delivered on the 12th of February, 2016, the learned trial Judge found against the Appellant and upheld the cross petition of the Respondent.

Dissatisfied with the decision of the lower Court the Appellant on the 7th of April, 2016 filed a notice of Appeal containing four (4) Grounds of Appeal wherein he sought the following reliefs:
(a) Order of Court dismissing the cross petition of the Respondent.
(b) Order of Court setting aside the orders of the lower Court made on settlement of properties.
(c) Order of Court setting aside the order of the Court in relation to the property at Ibara GRA as a nullity.

The Notice of Appeal is at pages 147 to 149 of the Record. The Record of Appeal was transmitted to this Court on the 27th of May, 2016. In line with the Rules and Practice of this Court parties filed and exchanged Briefs of Argument.

The Appellant‘s Brief of Argument filed on 30th of December, 2019 was deemed properly filed and served on 25th February, 2020. The Respondent’s Brief was filed on 9th March, 2020, as well as a Notice of Preliminary Objection. The argument in support of the Preliminary Objection is contained in the Respondent’s Brief of Argument. The Appellant filed a Reply brief on 23rd of March, 2020 which was deemed as properly filed on 28th October, 2020.

Two issues were formulated on behalf of the Appellant in his Brief of Argument settled by Akinbinu Olumide Fidelis of counsel. They are:
(1) Whether there were sufficient facts before the lower Court to ground a finding on conduct the Respondent could not be reasonably expected to live with and ipso facto a dissolution of marriage upon the cross petition of the Respondent.
(2) Whether the auxiliary order of sale and sharing of property particularly 3 bedroom bungalow and boys’ quarters at Ibara GRA, Abeokuta can be validly made upon evidence before the lower Court.

In the Respondent’s Brief of Argument settled by P.C. Iwu of counsel one sole issue was formulated for the determination of this appeal to wit:
“Whether the lower Court was right in entering the judgment for the Respondent having regard to the pleadings and evidence before the Court”.

On the 28th of October, 2020, when this appeal came up for hearing, Otunba Olumide Akinbinu of counsel appeared for the Appellant. Neither the Respondent nor his counsel was in Court. The Registrar informed the Court that the Counsel to the Respondent was served with hearing notice on 21st of October, 2020. Learned Counsel to the Appellant urged us to allow him argue the appeal pursuant to the provisions of Order 19 Rule 9 (4) of the Court of Appeal Rules 2016. His request was granted and he proceeded to argue the appeal. He urged us to deem the Respondent’s Brief of Argument as having been argued. He adopted and relied on the Appellant’s Brief of Argument and the Appellant’s Reply Brief in urging us to allow the appeal.

Order 19 Rule 9 (4) of the Court of Appeal Rules 2016 provides as follows:
“When an appeal is called and the parties have been duly served with the Notice of hearing, but if any party or any legal practitioner appearing for him does not appear to present oral argument even though briefs have been filed by all the parties concerned in the appeal, the appeal will be treated as having been duly argued”.
It is clear from the foregoing that where a party who has filed a Brief of Argument is absent at the hearing, the appeal will be treated as having been argued on the briefs. See A.C.B. LIMITED VS. APUGO (2001) 5 NWLR (PT. 707) 483; NWOKORO VS. ONUMA (1990) 3 NWLR (PT. 136) 22; KOLO VS. FIRST BANK OF NIGERIA PLC (2013) 3 NWLR (PT. 806) 216.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

</br<>

The power of this Court to hear the appeal on the briefs filed by counsel having been invoked, this appeal is deemed as duly argued pursuant to Order 19 Rule 9(4) (supra).

As noted earlier on, the Respondent filed a Notice of Preliminary Objection which was argued at paragraphs 4.0 to 4.50 of the Respondent’s Brief of Argument. It is trite that the primary objective of filing a Preliminary Objection is to terminate the proceedings at an early stage. Where a Preliminary Objection succeeds, the appeal would be held to be incompetent. It is therefore, expedient for a Preliminary Objection to be considered first before a consideration of the issues raised for the determination of an appeal. See OKOROCHA VS. UNITED BANK FOR AFRICA PLC (2018) 17 NWLR (PT. 1649) 441; AKEREDOLU VS. MIMIKO (2014) 1 NWLR (PT. 1388) 402; FIRST BANK OF NIGERIA PLC VS. T.S.A. INDUSTRIES LIMITED (2010) 15 NWLR (PT. 1216) 247 and ORIANZI VS. ATTORNEY-GENERAL RIVERS STATE (2017) 6 NWLR (PT. 1561) 224.
It is premised on the foregoing that I shall decide the Preliminary Objection first before the consideration of the merit of this appeal if necessary.

The grounds of the Preliminary Objection as contained in the Notice of Preliminary Objection filed on behalf of the Respondent are as follows:
1. Ground 1 of the Grounds of Appeal is incompetent because it is ambiguous, vague and misleading as to what the complaint of the Appellant actually is.
2. Ground 2 of the Grounds of Appeal is incompetent because it is a ground of mixed law and fact and no leave of Court was obtained to file and argue same.
3. Ground 3 of the Grounds of Appeal is incompetent because no leave of Court was obtained to argue same.
4. Ground 4 of the Grounds of appeal is incompetent however it cannot sustain the appeal because the two issues formulated for determination by the Appellant are based on specific findings of the trial Court which cannot be argued under an omnibus ground.
5. The two issues formulated for determination by the Appellant were formulated in the abstract.

The Preliminary Objection is argued at paragraphs 4.0 to 4.50, pages 6-11 of the Respondent’s Brief of Argument. Arguing the Preliminary Objection, Learned Counsel to the Respondent submitted Ground 1 of the grounds of appeal is incompetent as it is ambiguous, vague and misleading. According to him, the actual complaint of the Appellant is not clearly stated in the ground and that particular (d) of the Grounds of Appeal is defective.

On Ground 2, it is the contention of counsel that the Appellant failed to seek and obtain leave of Court to file same as required by law being a ground of mixed law and fact. He called in aid of his submission the cases of FBN VS. ABRAHAM (2008) 36 NSCQR (PT. 11) 1059 and AMADASUN VS. UME (2007) 13 NWLR (PT. 1051) 219.

On Ground 3 of the Grounds of Appeal, he submitted it alleges a misdirection of facts for which leave of Court is required, and failure to do so renders the ground incompetent. He craved in aid of his submission the provision of Section 241 (1) and Section 242 (1) of the Constitution of the Federal Republic of Nigeria 1999 and the case of OBIJURU VS. OZIMS (1985) 2 NWLR (PT. 6) 167 and ERISI VS. IDIKA (1987) 4 NWLR (PT. 66) 503.

He argued further and urged us to hold that issues 1 and 2 formulated for determination of this appeal which are based on specific findings made by the lower Court cannot be argued under the omnibus ground as done by the Appellant. It is his further contention that all issues formulated on Grounds 1, 2 and 3 of which are incompetent go to no issue and are liable to be struck out. He urged us to so do. He cited the cases ofNWOKIDU VS. OKANU (2010) 41 NSCQR (PT. 1) 215 and LAGGA VS. SARHUNA (2008) 36 NSCQR 82.

On Ground 5 of the Objection, Learned Counsel contended that the two issues formulated by the Appellant for the determination of this appeal are not related to any Ground of Appeal. He submitted appeals are decided on issues and this being so any issue for determination must arise from the Grounds of Appeal. He cited the cases of WACHUKWU VS. OWUNWANNE (2011) 46 NSCQR 1; ADEOGUN VS. FASOGBON (2011) 45 NSCQR 594 and TAIWO VS. ADEGBORO (2011) 46 NSCQR 82 in support and urged us to uphold the Preliminary Objection and dismiss the appeal.

For his part, Learned Counsel to the Appellant urged us to dismiss the Preliminary Objection as it is lacking in merit. He submitted the grounds of appeal are competent as they contain sufficient particulars to sustain them. He argued that Courts have been enjoined to consider the totality of the ground and its particulars to determine whether the ground is competent or not. He cited the cases of MR. I.Z. UMORU (RTD) VS. ALHAJI ABUBAKAR ZIBIRI (2003) FWLR (PT. 172) 1920; I.B. OGUNSOLA & 1 OR. VS. TAIYE IBIYEMI (2008) ALL FWLR (PT. 400) and 731; PROFESSOR E.A. ABE VS. UNIVERSITY OF ILORIN & ANOR. (2013) 5 SCNJ 766 in support.

He drew our attention to the particulars in support of grounds 1, 2 and 3 and urged us to hold that the grounds are competent and uphold the issues formulated thereon.

I wish to state from the onset that the instant Preliminary Objection in the main is a challenge to the grounds of appeal contained in the Notice of Appeal filed by the Appellant. It is trite that the essence of a Ground of Appeal is to give sufficient notice and information to the Respondent of the precise nature of the complaint of the Appellant against the judgment appealed against.
Order 7 Rule 3 of the Court of Appeal Rules 2016 provides that a vague Ground of Appeal shall not be permitted and it is liable to be struck out. A vague Ground of Appeal is that which is imprecise, not cogent and not concise. It is one that is inaccurate, verbose, large, rigmarole and it is one incapable of making the Respondent or the Court understand what exactly it connotes. However, where the adverse party fully understands the complaint in the Ground of Appeal such ground cannot be incompetent. No Court should sacrifice substantial justice on the altar of technicalities or irregularities where the complaint has not occasioned a miscarriage of justice. A Court would therefore, in the determination of the competence of a Ground of Appeal consider the Ground of Appeal itself and the particulars in support of same. Once the Court is satisfied that the Respondent understands the complaint therein, it should not strike it out no matter how inelegantly drafted. See AGWU VS. JULIUS BERGER NIGERIA PLC (2019) 11 NWLR (PT. 1682) 165; LAGGA VS. SARHUNA (2008) 16 NWLR (PT. 1114) 427 and OLORUNTOBA-OJU VS. ABDUL RAHEEM (2009) 13 NWLR (PT. 1157) 83.
I have carefully gone through Ground 1 of the Notice of Appeal and its particulars and I have no doubt that the complaint therein is well understood by the Respondent. The particulars provide an insight into what the Appellant’s complaint is. I therefore hold that, ground 1 of the Notice of Appeal is neither vague nor ambiguous.

It is further the complaint of the Respondent that the instant appeal is not one to be filed as of right. Counsel submitted leave of Court is required to do so.
This appeal is against the decision of the Ogun State High Court granting an Order nisi dissolving the marriage between the Appellant and the Respondent.
Section 241 (1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) provides for when appeals would lie as of right to this Court from the Federal High Court, High Court of a State or of the Federal Capital Territory. It provides thus:
“241 (1) An appeal shall lie from the decisions of the Federal High Court or a High Court to the Court of Appeal as of right on the following cases:
(a) Final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance;
(b) Where the Ground of Appeal involves questions of law alone, decisions in any civil or criminal proceedings;
(c) Decisions on any civil or criminal proceedings on questions as to the interpretation or application of this constitution;

(d) Decisions in any civil or criminal proceedings on questions as to whether any of the provisions of Chapter IV of the Constitution has been, is being or is likely to be, contravened in relation to any persons;
(e) Decisions in any criminal proceedings in which the Federal High Court or a High Court has imposed a sentence of death;
(f) Decisions made or given by the Federal High Court or a High Court:-
(i) Where the liberty of a person or the custody of an infant is concerned,
(ii) Where an injunction or the appointment of a receiver is granted or refused,
(iii) In the case of a decision determining the case of a creditor or the liability of a contributory or other officer under any enactment relating to companies in respect of misfeasance or otherwise.
(iv) In the case of a decree nisi in a matrimonial cause or decision in an admiralty action determining liability, and
(v) In such other cases as may be prescribed by any law in force in Nigeria.
It is clear from the foregoing that an appeal shall lie to this Court as of right from the decisions of the Federal High Court or High Court of a State where the decision is a final decision in any civil or criminal proceeding where the Ground of Appeal involves questions of law alone; any civil or criminal proceedings on questions as to the interpretation or application of the constitution and in the case of a decree nisi in a matrimonial cause amongst others. See ECO BANK NIGERIA LTD. VS. HONEYWELL FLOUR MILLS PLC (2019) 2 NWLR (PT. 1655) 55; AQUA LIMITED VS. ONDO STATE SPORTS COUNCIL (1988) 4 NWLR (PT. 91) 622 and TOTAL INTERNATIONAL LIMITED VS. AWOGBORO (1994) 4 NWLR (PT. 337) 147.
The instant appeal is against the decree nisi made by the lower Court on 12th of February, 2016. It therefore falls squarely within the provision of Section 241 (1) (f) (iv) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). In that section of the law, the right of appeal granted to an Appellant to appeal against any order nisi made by a lower Court to this Court is devoid of any qualification. It only provides that an appeal shall lie as of right to this Court from decision from the Federal High Court or High Court of a State in the case of a decree nisi in a matrimonial cause. There is no condition attached thereto. To my mind and I believe, that is the intention of the makers of the law, the right of appeal may be exercised as of right in cases of a decree nisi in a matrimonial cause and I so hold. The distinction sought to be made by the Respondent that some of the grounds of appeal are grounds of mixed law and fact is unnecessary and of no moment and I so hold. This appeal being one which has arisen from an order nisi made by the Ogun State High Court is one that may be filed as of right.

In any event grounds 2 and 3 of the Grounds of Appeal which Respondent complains are of mixed law and fact for which leave is required to my mind are grounds of law. I have subjected the grounds to the principles laid down by the Supreme Court in the case of NJEMANZE VS. NJEMANZE (2013) 8 NWLR (PT. 1356) 376 AT 393 – 395 PARAS H-C where Galadima J.S.C. held as follows:
“This Court, for quite long, has set out some of the criteria for distinguishing a ground of law from that of mixed law and fact. Some of these principles can be summarised in the following manner:
i. First is the thorough examination of the grounds of appeal in the case to see whether they reveal a misunderstanding by the lower Court of the law, or a misapplication of the law to the facts already proved or admitted.
ii. Where a ground complaining of a misunderstanding by the lower Court of the law or misapplication of the law to the facts already proved or admitted, it is a ground of law.
iii. Where a Ground of Appeal questions the evaluation of facts before the application of the law it is ground of mixed law and fact.
iv. A ground which raises a question of pure fact, is a ground of fact.
v. Where the lower Court finds that the particular events occurred although there is no admissible evidence before the Court that the event did in fact occur, the ground is that of law.
vi. Where admissible evidence has been led, the assessment of that evidence is entirely for the Court. If there is a complaint about the assessment of the admissible evidence, the ground is that of fact.
vii. Where the lower Court approached the constitution of a legal term of art in a statute on the erroneous basis that the statutory wording bears its ordinary meaning, the ground is that of law.

viii. Where the lower Court or tribunal applying the law to the facts in a process which requires the skill of a trained lawyer, this is a question of law.
ix. Where the lower Court reaches a conclusion which cannot reasonably be drawn from the facts as found, the appeal Court will assume that there has been a misconception of the law. This is a ground of law.
x. Where the conclusion of the lower Court is one of possible resolutions but one which the appeal Court would not have reached if seized of the issue, that conclusion is not an error in law.
xi. Where the Court of Appeal finds such application to be wrong and decides to make its own findings such findings made by the Court of Appeal are issues of fact and not of law.
xii. Where the Court of Appeal interferes in such a case and there is a further appeal to a higher Court of Appeal on the application of the facts the grounds of appeal alleging such misdirection by the lower Court of appeal is a ground of law and not of fact.
xiii. A Ground of Appeal which complains that the decision of the trial Court is against evidence or weight of evidence or contains unresolved contradictions in the evidence of witnesses, it is purely a ground of fact (which requires leave for an appeal to a Court of Appeal or a further Court of Appeal).

My conclusion from all I have said concerning the challenge to the Grounds of Appeal as contained in the notice of Preliminary Objection filed and argued by the Respondent is that it is unmeritorious and deserves to be dismissed. It is accordingly dismissed.

Now, to the substantive appeal. Upon a careful perusal of the issues formulated on behalf of the parties I find the sole issue formulated on behalf of the Respondent sufficient to determine this appeal. It is comprehensive and takes care of the two issues formulated on behalf of the Appellant.

I shall therefore proceed to determine this appeal on the sole issue formulated on behalf of the Respondent which is:
Whether the lower Court was right in entering judgment for the Respondent having regard to the pleadings and evidence before the Court.

Learned Counsel to the Appellant urged us to note that both parties concede that they behaved in such a way that they cannot be reasonably expected to live with each other again. This he said accords with the provision of Section 15 (2) (c) of the Matrimonial Causes Act, 2004. He argued that this being so both the Appellant and the Respondent who also filed a cross petition had the evidential burden to prove facts which constitute the behaviour the other party cannot reasonably be expected to live with. He submitted a party must succeed on the strength of his own case.

It is further the argument of counsel that some findings of the learned trial Judge were not borne out of the evidence on record and went on to highlight such findings and that the Respondent did not prove her cross petition.

On the order made by the learned trial Judge on the properties, he submitted that the Respondent who had the burden to prove joint ownership of the property failed to discharge it. He cited in support the case of EWO VS. ANI (2004) 3 NWLR (PT. 861) PG. 610.

He finally urged us to allow this appeal and set aside the orders made by the lower Court.
Arguing per contra, Learned Counsel to the Respondent submitted the lower Court was right when it entered judgment for the Respondent. This he said is because the Respondent adduced sufficient evidence to prove that the marriage between her and the Appellant had broken down irretrievably.

He submitted the lower Court satisfactorily performed its function of evaluation of evidence in accordance with laid down principles and urged us not to disturb the findings made by the learned trial Judge. He relied on the cases of MOGAJI VS. ODOFIN (1978) 4SC 91 and TINUBU VS. KHALIL & DIBBO TRANS LTD. (2000) 11 NWLR (PT. 677) 171.

The marriage between the Appellant and the Respondent was contracted on the 22nd of July, 1995. The Appellant as Petitioner filed a petition for the dissolution of the marriage before the lower Court in the year 2013. The Respondent in the answer to the petition incorporated a cross petition.

In the petition and cross petition, both parties are ad idem that the marriage between them had broken down irretrievably. The lower Court in its judgment found the Appellant failed to prove his petition and dismissed it. It however found the cross petition filed by the Respondent proved and granted the reliefs sought in part.

The lower Court at page 137 of the Record held thus:
“Consequently, having found the fact of Petitioner’s petition unproved. I accordingly dismiss it as lacking in merit”.

On the cross petition filed by the Respondent, the lower Court at pages 145 – 146 of the Record held as follows:
“Consequently, I order that the Petitioner settle- on the Respondent/Cross Petitioner the following:

(i) One of the parties two (2) plots of land at Federal Housing Estate, Obada Oko by a deed of Assignment.
(ii) Half (1/2) a plot of the parties one plot at Federal Housing Estate, Elega Abeokuta, by a deed of assignment.
(iii) The 3 bedroom bungalow and boys quarters at Ibara G.R.A. Abeokuta are to be sold and the proceeds shared between parties equally.
I also order that the unsold one (1) acre adjoining the property be shared equally between the parties.
Relief E sought by the Respondent is hereby refused because she did not adduce any evidence in support of the claim.
Relief B sought for by Respondent is also refused as the two children of the marriage are now adults.
The provision of Section 71 (1) does not apply to them.
I shall however grant Respondent’s Relief C because the welfare of children of marriage is of utmost importance to the Courts in divorce proceedings. See ODUCHE VS. ODUCHE (2005) LPELR – 5976 (CA).
I also consider the fact that they are both still in school and presently live with the Petitioner. In effect I order that the Petitioner shall be responsible for the two children school fees, medical bills and upkeep.

The Respondent is however ordered to be responsible for their clothing being female children.
On the whole the cross petition succeeds”.

Learned Counsel to the Appellant has argued that several findings made by the learned trial Judge in arriving at his decision are not supported by the evidence on record. The Respondent on the other hand argued that several of the findings complained about have not been appealed against.
The law is settled that where there is no Ground of Appeal which challenges specific findings of fact, the adverse findings would be deemed as acceptable to the Appellant. Such findings stand admitted and undisputed. They remain valid and binding on all parties. See ENL CONSORTIUM LTD. VS. DONASULU BROTHERS NIGERIA LTD. (2020) 8 NWLR (PT. 1725) 179; HANATU VS. AMADI (2020) 9 NWLR (PT. 1728) 115; OLUKOGA VS. FATUNDE (1996) 7 NWLR (PT. 462) 516 and ANYANWU VS. OGUNEWE (2014) 8 NWLR (PT. 1410) 487.

Learned Counsel to the Respondent, in the Respondent’s Brief of Argument highlighted some specific findings which he said were not appealed against. It includes the finding of the learned trial Judge at page 139 of the Record of Appeal to wit that the Appellant did not deny the allegation of threat to Respondent’s life. He submitted further that there is no appeal against the finding that the Appellant deserted the Respondent for months before driving her out of the matrimonial home. Other findings highlighted include that the Respondent quantified her contributions to the acquisition of the properties in cash and kind and also that where the Court found there is no credible evidence before the Court that the property is subject of litigation.

I have carefully examined the four grounds of Appeal contained in the Notice of Appeal at pages 147 – 149 of the record. The Appellant in Ground 1 of the Notice of Appeal and the Particulars thereto challenge the finding made by the learned trial Judge that the Respondent proved by credible evidence that she could not be reasonably expected to put up with the Appellant and also the finding made in respect of beating the Respondent after the birth of the first child of the marriage and issues relating thereto.

In Ground 2 of the Notice of Appeal the Appellant challenge the order of the trial Court made on the marriage property while Ground 3 is a challenge to the finding that the Respondent adduced evidence to justify the grant of the order on the marriage property.

It is premised on the foregoing that I am unable to agree with submissions made by Learned Counsel to the Respondent that the stated specific findings of fact made by the learned trial Judge were not challenged by the Appellant. I find no merit in this line of argument of counsel.

The law is further settled that the Petitioner who alleged that the marriage has broken down irretrievably because of intolerable behaviour has a duty to prove two sets of facts to wit.
i. The sickening and detestable behaviour of the Respondent and

That the Petitioner finds it intolerable to live with the Respondent.
See DAMULAK VS. DAMULAK (2004) 8 NWLR (PT. 874) 151; BIBILARI VS. BIBILARI (2011) LPELR 4443 (CA) and BAKAU VS. BAKAU (2013) LPELR – 22687 (CA).
In IBRAHIM VS. IBRAHIM (2007) 1 NWLR (PT. 1015) 383 AT 403 PARAS A-F, this Court per Ariwoola J.C.A. (Now J.S.C.) held as follows:
“In respect of the provisions of Section 15 (2) (c) of the Matrimonial Causes Act as stated above, it is pertinent to ask; what sort of behaviour of the Respondent should the Petitioner not reasonably be expected to put up with”.
In KATZ VS. KATZ (1972) 3 ALL ER 219, Sir George Baker, P. stated thus:
“Behaviour is something more than a mere state of affairs or a state of mind, such as for example, a repugnance to sexual intercourse, or a feeling that the wife is not reciprocating his love, or not being as demonstrative as he thinks she should be. Behaviour in this context is action or conduct by the one which affects the other. Such conduct may either take the form of acts or omissions or may be a course of conduct and in my view it must have some reference to the marriage”. In other words, the conduct of a Respondent that a Petitioner will not be reasonably expected to put up with must be grave and weighty in nature as to make further cohabitation virtually impossible.
However, before the Court will come to that conclusion, the entire history of the marriage has to be considered. In other words, the Court must consider the totality of the matrimonial history of the parties to the petition. See IBEAWUCHI VS. IBEAWUCHI unreported, decision of this Court in Suit No. FAC/E/5/82 delivered on 22nd September, 1982 per Oputa, J. (as he then was).
It is thus the law that the burden on the parties as Petitioner and Cross Petitioner is to prove by credible evidence the conduct of the other which makes cohabitation impossible. The standard of proof is provided in Section 82 (1) and (2) of the Matrimonial Causes Act which reads thus:
“82 (1) For the purpose of this Act, as a matter of fact shall be taken to be proved if it is established to the reasonable satisfaction of the Court.
(2) Where a provision of this Act requires the Court to be satisfied of the existence of any ground or fact or as to any other matter, it shall be sufficient, if the Court is reasonably satisfied of the existence of that ground or fact or as to that other matter.”

The conduct that would amount to intolerable behaviour is not at large. It is governed by the provisions of Section 16(1)(a) – (g) of the Matrimonial Causes Act which provide as follows:
“16.(1) Without prejudice to the generality of Section 15(2) of this Act, the Court hearing a petition for a decree of dissolution of marriage shall hold that the Petitioner has satisfied the Court of the fact mentioned in the said Section 15(2)(c) of this Act if the Petitioner satisfies the Court that:
(a) Since the marriage the Respondent has committed rape, sodomy or bestidity; or
(b) Since the marriage, the Respondent has, for a period of not less than two years
(i) Been a habitual drunkard; or
(ii) Habitually been intoxicated by reason of taking or using to excess any sedative, narcotic or stimulating during or preparation, or has for a part or parts of such a period, been a habitual drunkard and has for the other part or parts of the period habitually been so intoxicated; or

(c) Since the marriage, the Respondent has within a period not exceeding five years –
(i) Suffered frequent convictions for crime in respect of which the Respondent has been sentenced in the aggregate to imprisonment for not less than three years; and
(ii) Habitually left the Petitioner without reasonable means of support; or
(d) Since the marriage, the Respondent has been in prison for a period of not less than three years after conviction for an offence punishable by death or imprisonment for life or for a period of five years or more and is still in prison at the date of the Petition; or
(e) Since the marriage and within a period of one year immediately preceding the date of the Petition, the Respondent has been convicted of – (i) Having attempted to murder or unlawfully to kill the Petitioner; or
(ii) Having committed an offence involving the intentional infliction of grievous harm or grievous hurt on the Petitioner or the intent to inflict grievous harm or grievous hurt on the Petitioner; or
(f) The Respondent has habitually and willfully failed, throughout the period of two years immediately preceding the date of the petition, to pay maintenance for the Petitioner.
(i) Ordered to be paid under an order of, or an order registered in, a Court in the Federation; or
(ii) Agreed to be paid under an agreement between the parties to the marriage providing for their separation or
(g) The Respondent:
(i) Is at the date of the petition, of unsound mind and unlikely to recover;
(ii) since the marriage and within the period of six years immediately preceding, the date of the petition, has been confined for a period of, or for periods aggregating, not less than five years in an institution where persons may be confined for unsoundness of mind in accordance with law, or in more than, one such institution.”
It follows therefore, that for a Court to hold the Respondent/Cross-Respondent has conducted himself/herself in such a way that the other person cannot be reasonably expected to live with him/her the Petitioner/Cross Petitioner must establish a conduct or act within the provisions of Section 16(1)(a) to (c) of the Matrimonial Causes Act. This would involve not only a consideration of the behaviour of the Respondent but also the character, personality and disposition of the Petitioner.

Upon a perusal of the Record of Appeal, I find that most of the averments in the pleadings of the Appellant were not supported by evidence. It is trite that pleadings is not evidence and any averment in the pleadings not supported by evidence is deemed abandoned. Any averment in the pleadings on which no evidence is given except where it is admitted by the other party go to no issue. See CAMEROON AIRLINES VS. OTUTUIZU (2011) 4 NWLR (PT. 1238) 512; OJO VS. GHARORO (2006) 10 NWLR (PT.987) 173 AND IFETA VS. SHELL PETROLEUM DEVELOPMENT COMPANY (NIG.) LTD. (2006) 8 NWLR (PT.983) 585. All averment in the pleadings of the Appellant before the lower Court which have not been given life via oral and/or documentary evidence are deemed abandoned and shall be discountenanced by me.
I have carefully examined the pleadings of parties in the Petition and cross petition as well as the admissible evidence adduced thereon, and I have no hesitation in coming to the conclusion that the case presented by both parties in this appeal as Petitioner and Cross Petitioner do not come under what constitute intolerable behaviour under Section 16(1)(a) – (g) of the Matrimonial Cause Act. It follows therefore that both of them failed to prove intolerable behavior against each other and I so hold.

The Respondent as Cross Petitioner however further allege that the Appellant deserted her for a continuous period of at least one year prior to the institution of the cross petition. Desertion is a ground for dissolution of marriage under Section 15(2)(d) of the Matrimonial Causes Act. Desertion is the withdrawal of support and cessation from co-habitation without the consent of the other spouse and with the intention of abandoning allegiance, fidelity or responsibility and to remain separated forever. See NWANKWO VS. NWANKWO (2014) LPELR – 24396 (CA); ANIOKE VS. ANIOKE (2011) LPELR – 3774 (CA); BAKARE VS. BAKARE (2016) LPELR – 41344 (CA) and MRS. HELEN NWOSU VS. HON. DR. CHIMA NWOSU (2011) LPELR – 465 (CA). Furthermore, the Petitioner must establish that the Respondent deserted him for a continuous period of the year.

In NWANKWO VS. NWANKWO (Supra) this Court per TSAMMANI J.C.A. held as follows:
“To constitute desertion therefore, the Petitioner must plead and lead credible evidence to prove the following facts:
(a) Defects or physical separation;
(b) The manifest intention to remain permanently separated;
(c) Lack of just cause for withdrawal from cohabitation; and
(d) Absence of consent of the deserted spouse.
A defect or physical separation of the spouse does not necessarily mean living apart from each other. In law, there are two types of desertion to wit; simple desertion and constructive desertion. Simple desertion occurs where the deserting party abandons the matrimonial home while in constructive desertion, the spouse remains in the home but has abdicated all matrimonial responsibility and has thus, by his conduct expelled the other spouse. In that respect, desertions remain a matter of fact and law to be determined by the Court hearing the matter.”
I am in complete agreement with my learned brother quoted above on what constitutes desertion. Physical movement from the matrimonial home by the Respondent/Cross-Respondent is not a pre-condition for constructive desertion.

In the instant appeal, the Respondent/Cross-Petitioner gave evidence that the Appellant moved out of their bedroom to the guest room on 21st March, 2011 on the ground that she snores and remained there until April, 2012 when he moved out of the matrimonial home. There is further evidence that the Appellant returned to the house in December, 2012 to drive the Respondent out.

It is against this background that the learned trial Judge found at page 140 of the Record as follows:
“I also find the Petitioner in constructive desertion because he first abandoned Respondent for months and later drove her out of the matrimonial home which the latter could not return till date.”
The above finding of the learned trial Judge is supported by evidence on record. It cannot be faulted.

Furthermore, there is evidence on record that the Appellant drove the Respondent out of the Matrimonial home in December, 2012. Between December 2012 and 30th of January, 2014 when the Respondent filed her cross petition is a period of about thirteen continuous months. There is no evidence of consent between the parties. I am satisfied that there is evidence that the Appellant deserted the Respondent for a continuous period of one year immediately preceding the presentation of her cross petition and I so hold.

The grounds relied upon by the Respondent in her cross petition at page 33 of the record are as follows:
“53. The facts relied on by the Cross Petitioner as constituting the grounds specified above is as follows:
(a) That since the marriage the Respondent has behaved in such a way that, the Petitioner cannot be reasonably expected to live with the Respondent.
(b) That the Respondent has deserted the Petitioner for a continuous period of at least one year immediately preceding the presentation of the petition.”

The Respondent proved the second ground of her cross petition. She is therefore entitled to the decree nisi granted in her favour by the lower Court dissolving the marriage between her and the Appellant pursuant to her Cross Petition.

At paragraph 54 (d) of her cross petition the Respondent sought the following reliefs:
“(D) An order for the partitioning into two equal parts of the following properties for the benefit of the Respondent.
(1) 2 plots of land at Federal Housing Estate, Obada Oko;

(2) One plot of land at Federal Housing Estate, Elega, Abeokuta and
(3) 3 bedroom bungalow with boys quarters and an adjoining one acre of empty land at No.21, Adetokunbo Ademola Crescent, Ibara, G.R.A. Abeokuta,

In its judgment, the lower Court at page 145 of the record found the properties claimed by the Respondent were jointly acquired and held as follows:
“Consequently, I order that the Petitioner settle on the Respondent/ Cross Petitioner on the following:
i) One of the parties two (2) plots of land at Federal Housing Estate Obada Oko by a Deed of Assignment.
ii) Half (1/2) a plot of the parties one plot at Federal Housing Estate, Elega Abeokuta by a Deed of Assignment.
iii) The 3 bedroom bungalow and boys quarters at Ibara G.R.A. Abeokuta are to be sold and the Deeds shared between parties equally.
I also order that the unsold 1 acre adjoin the property be shared equally between the parties.”

Learned Counsel to the Appellant has argued that the Respondent did not prove by credible evidence that the properties were jointly owned by them. The question now is whether the lower Court was right when it ordered the partition and sale of the properties the way it did. In a proceeding to partition or settle matrimonial property it is important to consider whether or not the property or properties in questions were acquired by both parties or one of them during the pendency of the marriage and if so what was the contribution of each party to the cost of acquisition. See MUELLER VS. MUELLER (2006) 6 NWLR (PT. 977) 627; IBEABUCHI VS. IBEABUCHI (2016) LPELR – 41268 (CA) and ADEROUNMU VS. ADEROUNMU (2003) 2 NWLR (PT.803) 1.

(2) The Court may, in proceedings under this Act, make such order as the Court considers just and equitable with respect to the application for the benefit of all or any of the parties to, and the children of the marriage of the whole or part of property dealt with by ante-nuptial or post-nuptial settlement on the parties to the marriage or either of them.
See also the cases of ANACHEBE VS. IJEOMA (2014) 14 NWLR (PT.1426) 168; MBA VS. MBA (2018) 15 NWLR (PT. 1614) 177 and UNION BANK OF NIGERIA PLC VS. ASTRA BUILDERS W/A LIMITED (2010) 5 NWLR (PT.1186) 1.
I have carefully examined the issues joined by the parties vide their pleadings and the evidence led thereon. The Respondent who asserted in the affirmative that the properties in question were jointly owned by her and the Appellant had the burden to prove her claim. By virtue of the provisions of Sections 131 and 132 of the Evidence Act, a party who asserts the existence of a fact in the affirmative has a duty to prove its existence. It follows therefore that, the Respondent who desired the Court to give her the right to equal share of the disputed property had a duty to prove joint ownership of same. There is no evidence on record to support the Respondent’s claim of joint ownership of the properties. She did not present facts upon which a finding of joint ownership of the disputed properties could be made. It is significant to note that the Respondent failed to give details and particulars of her contribution to the acquisition of the properties. She failed to prove that the properties are jointly owned by her and the Appellant. She has not discharged the burden placed on her to entitle her to reliefs claimed in Paragraph 54 (d) of her cross petition. In the absence of evidence of joint ownership of the properties on record, the trial Judge erred when he made the orders partitioning the properties as he did and I so hold.
The lower Court also found that there is no credible evidence that one of the properties i.e. one acre of land adjoining the 3 bedroom bungalow at Ibara, G.R.A. Abeokuta is a subject of litigation. This finding of the learned trial Judge is not borne out of the evidence on Record.
While answering questions put to her under cross examination, the Respondent at page 104 of the Record stated as follows:

“I agree that the interest of our children is more important. The Petitioner told me he sold part of the land and I saw people i.e. taking possession of the portion sold by cutting trees. I am aware that a part of the property not sold is a subject of litigation.”
In light of the above admission by the Respondent, what further credible evidence does the learned trial Judge require that part of the property sought to be partitioned is a subject of litigation. The fact that the unsold one acre of land situate at Ibara G.R.A. Abeokuta is a subject of litigation as alleged by the Appellant is established and I so hold.
It is trite that the doctrine of lis pendis prevents the effective transfer of rights or interest in any property which is the subject of an action pending in Court during the pendency of the action. See ORONTI VS. ONIGBANJO (2012) 12 NWLR (PT. 1313) 23; OSIDELE VS. SOKUNBI (2012) 15 NWLR (PT.1324) 470; BFI GROUP CORPORATION VS. BUREAU OF PUBLIC ENTERPRISES (2012) 18 NWLR (PT. 1322) 209.

It follows from all of the above that, the learned trial Judge did not exercise his discretion judicially and judiciously in the settlement and partitioning of the properties in question and I so hold. I therefore set aside the lower Court’s order on the partitioning and sale of the properties made in the judgment the subject of this appeal.

I have earlier on held that, the decree nisi for the dissolution of marriage celebrated between the Petitioner and Respondent pursuant to the cross petition of the Respondent by the lower Court stands. The dissolution of the marriage between the parties as ordered by the lower Court is hereby affirmed. The orders of the lower Court at page 145 of the Record granting the reliefs claimed by the Respondent pursuant to Paragraph 54 (d) of her cross petition is hereby set aside. This appeal therefore succeeds in part.

The marriage between the parties having been dissolved, I find it appropriate to make orders on the properties listed in the cross petition of the Respondent. I have taken into consideration the fact that when the going was good the parties shared intentions in relation to the properties and that now that things have turned sour equity demands that each of them gets a fair share of the benefits and burdens. It is against this background that I make the following orders:

1. In the interim, neither of the parties is entitled to the unsold one acre of land adjoining the 3 bedroom bungalow at Ibara, G.R.A. Abeokuta which is a subject of litigation. The ownership of the land shall be determined by the Court in which the matter is pending.
2. The three (3) bedroom bungalow and boys quarters at Ibara G.R.A. Abeokuta shall serve as home to the Appellant and the two children of the marriage.
3. Each of the parties shall be entitled to one (1) plot each of the two (2) plots of land at Federal Housing Estate, Obada Oko.
4. One plot of land at Federal Housing Estate, Elega is to be sold and the proceeds of the sale to be shared equally between the parties.
Parties are to bear their respective costs.

JIMI OLUKAYODE BADA, J.C.A.: I had a preview of the lead Judgment of my Lord FOLASADE AYODEJI OJO, J.C.A., just delivered.
My Lord’s analysis and conclusion in this Appeal is detailed, I have nothing to add.

Having also read the Record of Appeal and the Briefs of Argument filed by the parties, I agree that the Appeal succeeds in part. I abide by the consequential Orders made in the said lead Judgment.

HARUNA SIMON TSAMMANI, J.C.A.: I had the advantage of reading in advance, the draft of the Judgment delivered by my learned brother, FOLASADE AYODEJI OJO, J.C.A.

The Preliminary Objection to the hearing of the appeal is devoid of any merit. The Appellant’s appeal was properly filed as of right in view of Section 241(i) (f) (iv) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). It is accordingly dismissed.

My learned brother has exhaustedly considered the essential issues that called for determination in the main appeal. I agree with the findings and conclusions reached by my learned brother. In that respect, I also hold that the learned trial Judge did not properly exercise his discretion judicially and judiciously on the issue of settlement of properties. The appeal therefore, has merit and is hereby allowed.
I abide by the consequential orders made by my learned brother.

Appearances:

OTUNBA OLUMIDE AKINBINU with him, F. S. ADEGBESAN For Appellant(s)

RESPONDENT COUNSEL ABSENT. For Respondent(s)