OGUNNUBI v. OGUNNUBI
(2021)LCN/15501(CA)
In The Court Of Appeal
(IBADAN JUDICIAL DIVISION)
On Tuesday, March 30, 2021
CA/IB/221/2017
RATIO
WORDS AND PHRASES: CONSEQUENTIAL ORDER
A Court of law is imbued with the inherent jurisdiction to make consequential orders in the interest of justice even though the order was not specifically asked for: AKAPO vs. HAKEEM-HABEEB (1992) 7 SCNJ 119, LAYINKA vs. GEGELE (1993) LPELR (1769) 1 at 11 and EYIGEBE vs. IYAJI (2013) LPELR (20522) 1 at 24-25.
A consequential order is an order whose need arises naturally as a direct result of a substantive relief, to give effect to the substantive relief. A consequential order is an order which follows as a result of the main order. A consequential order is appurtenant to the main or principal order.
See AKINBOBOLA vs. PLISSON FISKO (NIG) LTD (1991) LPELR (343) 1 at 21, EZE vs. GOVERNOR OF ABIA STATE (2014) 7 SCNJ 30 at 57-58 and 60 and NOEKOER vs. EXECUTIVE GOVERNOR OF PLATEAU STATE (2018) LPELR (44350) 1 at 41-42. PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
DUTY OF COURT: EVALUATION OF EVIDENCE
It is the trial Court that sees the witnesses, hears their testimony and observes their demeanour. It therefore has the primary duty of evaluating and ascribing probative value to the evidence adduced. In its duty of perception of evidence, id est, receive all available relevant evidence, the lower Court took the evidence of the Respondent, it next had the duty to weigh that evidence in the context of the surrounding circumstances of the case. This is evaluation of evidence, after which it makes findings of facts on the evidence. See OLUFOSOYE vs. OLORUNFEMI (1989) 1 SC (PT 1) 29 or (1989) LPELR (2615) 1 at 9, GUARDIAN NEWSPAPER LTD vs. AJEH (2011) 10 NWLR (PT 1255) 574 at 592 and WACHUKWU vs. OWUNWANNE (2011) LPELR (3466) 1 at 50-51. In evaluation of evidence, the Court assesses the evidence to determine whether it preponderates in favour of the basic proposition which it seeks to establish: MOGAJI vs. ODOFIN (1978) 4 SC 91, ONWUKA vs. EDIALA (1989) 1 NWLR (PT 96) 182, AMEYO vs. OYEWOLE (2008) LPELR (3768) 1 at 9 and OBASI BROTHERS MERCHANT COMPANY LTD vs. MERCHANT BANK OF AFRICA SECURITIES LTD (2005) 4 MJSC 1 at 26. PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
WORDS AND PHRASES: DIFFERENCE BETWEEN PRINCIPLES AND RULES
But then the principles in the said cases remain no more than principles of law. They are not Rules. Rules operate in an all or nothing dimension. Principles do not. Principles merely incline decisions one way or the other. They only form a starting point. Where one ends up from that starting point will largely depend on the diacritical facts and circumstances of the particular case: SAHARA ENERGY RESOURCES LTD vs. OYEBOLA (2020) LPELR (51806) 1 at 43-44. Let me invite my Lord, Oputa, JSC to speak to this matter. Hear him in FAWEHINMI vs. NBA (NO.2) (1989) LPELR (1259) 1 at 139:
“It is good to call the Court’s attention to its pronouncements in a previous case. Under our system (which we inherited from England and from the common law) the formulation of general principles has not preceded decisions. Our case law is the law of the practitioner rather than the law of the philosopher. Decisions have drawn their inspiration and their strength from the very facts which framed the issues for decision. Once made, these decisions control future judgments of the Courts in like or similar cases. The facts of two cases must be either the same or at least similar before the decision in one can be used, and even then, as a guide to the decision in another case. What the former decision establishes is only a principle not a rule. Rules operate in an all or nothing dimension. Principles do not. They merely form a principium, a starting point. Where one ultimately lands will then depend on the peculiar facts and circumstances of the case in hand.”
So, for the principles relied upon to be applicable, it has to be shown that on the facts, the applicability of the principle is availing. PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
Before Our Lordships:
Jimi Olukayode Bada Justice of the Court of Appeal
Ugochukwu Anthony Ogakwu Justice of the Court of Appeal
Folasade Ayodeji Ojo Justice of the Court of Appeal
Between
OLADAPO OLUFUNLAYO OGUNNUBI APPELANT(S)
And
OMOBOLANLE ADENIKE OGUNNUBI RESPONDENT(S)
UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): The Respondent herein instituted proceedings before the High Court of Ogun State in SUIT NO. AB/68/2013: OMOBOLANLE ADENIKE OGUNNUBI vs. OLADAPO OLUFUNLAYO OGUNNUBI. In the said proceedings, the Respondent claimed a relief for the dissolution of her marriage to the Appellant herein, and other sundry reliefs for maintenance, custody of the children of the marriage and settlement of property.
The parties filed and exchanged pleadings and the matter proceeded to trial. The Respondent testified in proof of her Petition and she was duly cross examined by the Appellant’s counsel. The Appellant did not testify and did not call any witness. At the end of the trial, the lower Court entered judgment in favour of the Respondent in the following terms:-
“On the whole, this Court finds and Orders as follows:-
(i) The marriage between the Parties herein contracted on 30/12/95 at the Methodist Church, Festac, Lagos, Nigeria has broken down irretrievably and I hereby declare the marriage as dissolved. A decree nisi is hereby ordered in favour of the Petitioner.
(ii) The Petitioner is entitled to have the property known as No. 9, Fountain of Love Street, Off St. Cyril Church, Okota Lagos settle on her for her benefit. To this end the Respondent shall execute a deed of transfer of the said property in her favour. The property known as 42, Adewunmi Kosemani Street, Idimu, Lagos is hereby partitioned in favour of the Respondent.
(iii) The Respondent shall be responsible for the education of the three children of the marriage including other costs incidental thereto up to tertiary institution.
(iv) The Petitioner shall be responsible for the upkeep, maintenance and feeding of the children of the marriage.
(v) The parties herein shall jointly be responsible for the health and clothing of the children as the need arise.
(vi) Reliefs sought for in Paragraphs 11 (4), (5), (6), (7), (8), (9) and (11) for [sic] the Petition having been refused are hereby dismissed.
This Petition partially succeeds.”
The Appellant was happy with the decree nisi for the dissolution of the marriage, but he was peeved with the other reliefs and orders made by the lower Court. To give vent to his dissatisfaction, the Appellant filed an appeal against the whole decision, except the decree of dissolution of the marriage. The chafed judgment of the lower Court, which was delivered on 31st May 2016 is at pages 154-185 of the Records; while the Notice of Appeal, filed on 12th July 2016 is at pages 186-195 of the Records.
In prosecution of the appeal, the Records of Appeal was compiled and transmitted on 14th June 2017, but deemed as properly compiled and transmitted on 30th November 2020. Thereafter, the parties filed and exchanged briefs of argument which they adopted and relied upon at the hearing of the appeal. The briefs on which the appeal was argued are:-
1. Appellant’s Brief of Argument filed on 22nd November 2018 but deemed as properly filed on 30th November 2020.
2. Respondent’s Brief of Argument filed on 30th November 2020.
3. Appellant’s Reply Brief filed on 15th January 2021 but deemed as properly filed on 23rd February 2021.
The Appellant distilled three issues for determination in the appeal as follows:-
1. Whether the trial Court was not wrong in law when the Court held that ‘by choosing to stay away from trial to substantiate his answer to petition (pleadings) he is deemed to have abandoned same. (Ground 1, 2)
2. Whether the learned trial judge did not err when he found that the ‘1st property is known as 42, Adewunmi Kosemani Street, Idimu Lagos. The property was purchased solely by the Respondent during parties’ Courtship’ and ’I therefore accept Exhibit B (a survey plan) as establishing that Okota Property is a joint property of parties’ went ahead and conclude that ‘the properties can be regarded as products of their joint efforts.’ (Grounds 3, 4, 5, 6 and 7).
3. Whether the trial Court was not wrong in law (and fact) when the Court granted to the respondent a claim which was not sought by her at the trial Court. (Ground 8).
The Respondent equally formulated three issues for the determination, namely:
(1) Whether the Trial Court was wrong in law when he held that ‘by choosing to stay away from trial to substantiate his answer to petition (pleadings) he is deemed to have abandoned same? (Grounds 1 and 2 of the Notice of Appeal)
(2) Was the Trial Court not right by finding that properties known as 42, Adewunmi Kosemani Street, Idimu Lagos (Idimu property) and 9 Fountain of love Street, Off St. Cyril Church, Okota Lagos (Okota Property) are products of Appellant and Respondent’s joint efforts’? Grounds 3, 4, 5, 6 and 9 of the Notice of Appeal)
(3) Whether the Trial Court granted any relief it ought not to have granted? (Ground 8 of the Notice of Appeal)
Even though the issues thrust up for determination by the parties are differently worded, the said issues are the same in their true essence and purport. The issues are the same two and tuppence. Accordingly, it is the issues as crafted by the Appellant that will be the lodestar in the consideration of the submissions of learned counsel and determination of this appeal.
ISSUE NUMBER ONE
Whether the trial Court was not wrong in law when the Court held that ‘by choosing to stay away from trial to substantiate his answer to petition (pleadings)’ he is deemed to have abandoned same.
SUBMISSIONS OF THE APPELLANT’S COUNSEL
The Appellant submits that the burden of proof is on the party who substantially asserts the affirmative of an issue, and that where the burden is not discharged, the decision must go against such party vide IMANA vs. ROBINSON (1979) 3-4 SC 1 at 9. It was posited that evidence elicited in cross examination on matters that are pleaded is admissible. The cases of ADEOSUN vs. GOVERNOR OF EKITI STATE (2012) ALL FWLR (PT 619) 1044 at 1059 and OMISORE vs. AREGBESOLA ELC (2015) 2239 SC 1 ratio 14 were referred to. The Appellant was said to have been represented at the trial by his counsel and as such his presence was not necessary as his counsel sufficiently conducted the case in his absence. The case of DURU vs. FRN (2013) 4 SCM 40 at 53 was relied upon. It was maintained that since the Appellant was represented by counsel who elicited evidence from the cross examination of the Respondent, the lower Court was wrong to have held that by choosing to stay away from trial to substantiate his answer to the Petition, that the Appellant is deemed to have abandoned his Answer to the Petition.
SUBMISSIONS OF THE RESPONDENT’S COUNSEL
The Respondent submits that pleadings not supported by evidence are deemed abandoned vide JADOCOM LTD vs. OGUN ELECTRICAL (2004) 3 NWLR [no part stated] 153 at 184, JOLAYEMI vs. ALAOYE (2004) 12 NWLR (PT 887) 322 at 340, DUROSARO vs. AYORINDE (2005) 8 NWLR (PT 927) 407 at 425. It was opined that while it is correct that a party can elicit evidence from the cross examination of a witness called by the other party, but that such evidence must be on the facts pleaded by the party and relevant for the determination of the question in controversy between the parties. The case of ANDREW vs. INEC (2018) 9 NWLR (PT 1625) 507 at 584 was cited in support. It was stated that the Appellant had a duty to show that he elicited evidence in support of his case as pleaded during cross examination, and it was asserted, that the decision of the lower Court that the Appellant abandoned his pleadings is not perverse. The cases of ATOLAGBE vs. SHORUN (1985) 1 NWLR (PT 2) 360, ADIMORA vs. AJUFO (1988) 3 NWLR (PT 80) 1 at 4 and OJU vs. INEC (2007) 14 NWLR (PT 1054) 242 at 273 were referred to on the meaning of a perverse decision.
The Respondent further contended that the evidence elicited in cross examination did not substantiate the Appellant’s answer to the Petition. The lower Court, it was maintained, rightly held as such at page 168 of the Records, as a result of which the answer was in consequence abandoned. It was stated that in DURU vs. FRN (supra) relied upon by the Appellant, the apex Court held at page 53 that when the matter is one in which the party will be required to give evidence or say or do something which his counsel cannot legally do, then his presence in Court becomes necessary; more so as counsel cannot give evidence, qua counsel, to support the pleadings of a party. It was conclusively stated that the Appellant’s failure to give evidence at the trial to support his pleadings means that he had abandoned his pleadings.
APPELLANT’S REPLY ON LAW
The Appellant submits in the Reply Brief that an appeal is by way of rehearing and that it is for this Court to look through the Records to see whether the evaluation of evidence and conclusion reached by the lower Court are vindicated in the Records; especially as an appellate Court is in the same position as a trial Court to evaluate the evidence where it does not involve the credibility of witnesses. The cases of WOLUCHEM vs. GUDI (1981) 5 SC 291 at 326-330, EBBA vs. OGODO (1984) 4 SC 84, MOGAJI vs. ODOFIN (1978) 4 SC 91 at 93, AKINLOYE vs. EYIYOLA (1968) NWLR 92 at 95, MOBIL PRODUCING NIG UNLTD vs. MONOKPO (2004) ALL FWLR (PT 195) 575 at 660 or (2003) 18 NWLR (PT 852) 346 at 437-438 and NWANA vs. FCDA (2007) 11 NWLR (PT 1044) 59 at 84 were called in aid.
The Appellant doubled down on his submission that evidence elicited in cross examination forms part of the case of the party cross examining, such that even where the party does not call a witness, it cannot be said that such a party abandoned his case. The cases of AKOMOLAFE vs. GUARDIAN PRESS LTD (2010) LPELR-366 (SC) at 15-16 and OMISORE vs. AREGBESOLA (2015) LPELR-24803 (SC) were relied upon.
RESOLUTION OF ISSUE NUMBER ONE
The salient facts on which the disceptation under this issue is predicated are not convoluted. The parties filed and exchanged pleadings at the lower Court. Issues were joined on the pleadings. The Respondent led evidence in support of her pleadings by testifying. The Appellant did not activate his pleadings by leading evidence in respect thereof as he did not testify and he also did not call any witness. The parties have latched on to two trite principles of law in accentuation of their disparate contentions. For the Respondent, and as held by the lower Court, the failure of the Appellant to lead evidence meant that he had abandoned his pleadings. The cases of JOLAYEMI vs. ALAOYE (supra) and DUROSARO vs. AYORINDE (supra) among others relied on by the Respondent are apt in this regard.
The Appellant is equally on a strong wicket in his reliance on the trite principle of law that evidence elicited from a party or his witnesses under cross examination which goes to support the case of the party cross examining constitutes evidence in support of his case and such a party may decide not to call any witness and rely on the evidence elicited from cross examination. Such evidence in support of his case constitutes his evidence in the case and even if he does not call any witness, it cannot be said that he did not lead evidence. The cases of AKOMOLAFE vs. GUARDIAN PRESSS LTD (supra), OMISORE vs. AREGBESOLA (supra) among others which the Appellant relied on are idoneous.
But then the principles in the said cases remain no more than principles of law. They are not Rules. Rules operate in an all or nothing dimension. Principles do not. Principles merely incline decisions one way or the other. They only form a starting point. Where one ends up from that starting point will largely depend on the diacritical facts and circumstances of the particular case: SAHARA ENERGY RESOURCES LTD vs. OYEBOLA (2020) LPELR (51806) 1 at 43-44. Let me invite my Lord, Oputa, JSC to speak to this matter. Hear him in FAWEHINMI vs. NBA (NO.2) (1989) LPELR (1259) 1 at 139:
“It is good to call the Court’s attention to its pronouncements in a previous case. Under our system (which we inherited from England and from the common law) the formulation of general principles has not preceded decisions. Our case law is the law of the practitioner rather than the law of the philosopher. Decisions have drawn their inspiration and their strength from the very facts which framed the issues for decision. Once made, these decisions control future judgments of the Courts in like or similar cases. The facts of two cases must be either the same or at least similar before the decision in one can be used, and even then, as a guide to the decision in another case. What the former decision establishes is only a principle not a rule. Rules operate in an all or nothing dimension. Principles do not. They merely form a principium, a starting point. Where one ultimately lands will then depend on the peculiar facts and circumstances of the case in hand.”
So, for the principles relied upon to be applicable, it has to be shown that on the facts, the applicability of the principle is availing. The Appellant has to show that the evidence he elicited in cross examination of Respondent indeed supports his case. It does not suffice merely to show that he cross examined the Respondent and elicited evidence from her. The lower Court fully appreciated the regnant principles of law in this regard and at pages 167-169 it stated:
“As earlier stated above in this Judgment, the Respondent did not for once attend the trial of this suit and as such proffered no evidence in support of his pleadings though he was represented by Counsel who cross-examined the Petitioner. By choosing to stay away from trial to substantiate his Answer to Petition (Pleadings) he is deemed to have abandoned same.
The position of the law is that Pleadings not supported by evidence is deemed by the Court as having been abandoned and should be disregarded by the Court…
The Respondent Counsel had in his submissions stated that he shall be relying on the parties Pleadings amongst other evidence placed before the Court.
I am unable to agree with this submission of Counsel as the Respondent failed to lead evidence in support of the averments contained in his Pleadings.
I have compared the Pleadings filed by the Respondent with the evidence elicited or obtained from the Petitioner during Cross-examination, I do not think the elicited evidence substantiate the averments contained in the Respondent’s pleadings. It does not in my considered view.
Moreover, the law is trite that only pleaded facts (by either party) elicited during cross-examination is admissible while cross examination on matters not pleaded are inadmissible…
Therefore, on the foregoing, the Court shall in this Judgment consider the Pleadings of the Petitioner, her evidence in chief and Parties pleaded evidence elicited during cross-examination.”
The lower Court held that the evidence elicited under cross examination did not substantiate the averments contained in the Appellant’s pleadings. It is the Appellant who contends that the decision of the lower Court is wrong, so he is under the bounden duty to show that the evidence he elicited in cross examination supports his pleadings. Where he is unable to do so, then the principle he relies upon will be unavailing and the inexorable consequence would be that as held by the lower Court, the Appellant abandoned his pleadings by not leading evidence in support thereof.
The Respondent rightly submitted that the Appellant has the duty to show that the evidence he elicited under cross examination supports his case. In replication, the Appellant submits that since an appeal is by way of rehearing, it is for this Court to look through the Record to see whether the evaluation and conclusion reached by the lower Court is borne out by the Records. Undoubtedly, appeals are by way of rehearing, but it does not absolve an appellant from making out his case as complained against the decision appealed against. It has to be remembered that an appellate Court does not proceed like Don Quixote, the knight-errant roaming at will in pursuit of its own ideal of what the beauty of the law should be in any situation. Our system of jurisprudence is adversarial, not inquisitorial; so where the Appellant fails to show that the evidence elicited under cross examination supports his case and how the concomitance is that the lower Court was wrong in holding the contrary and that he had abandoned his pleadings, the Court will not embark on any inquisition in that regard under the guise of rehearing the case. After all it is not in the place of a Court to maraud all over the place in a quest for chivalric virtues. Doing so will be skewed justice. See ADEYEMI vs. OLAKUNRI (1999) LPELR (170) 1 at 16, OBI vs. INEC (2007) LPELR (2166) 1 at 54 and IDOGHOR vs. OKAGBARE (2014) LPELR (24500) 1 at 17.
The law is that the conclusions of the trial Court on the facts is presumed to be correct, so that presumption must be displaced by the person seeking to upset the judgment on the facts. See WILLIAMS vs. JOHNSON (1937) 2 WACA 253, BALOGUN vs. AGBOOLA (1974) 1 ALL NLR (PT 2) 66 and EHOLOR vs. OSAYANDE (1992) LPELR (8053) 1 at 43. From what I have said thus far, the inevitable summation is that the Appellant has failed to displace the presumption that the conclusions of the lower Court on the facts that the evidence elicited under cross examination does not substantiate the averments in the Appellant’s pleadings and that the Appellant abandoned his pleadings are correct in order to upset the judgment on the facts: ONI vs. JOHNSON (2015) LPELR (24545) 1 at 13 and 24. Concomitantly, this issue number one is resolved against the Appellant.
I will take issue numbers two and three together. While issue number two deals with evaluation of the evidence in respect of the properties acquired and/or developed during the currency of the parties marriage, issue number three deals with the reliefs awarded by the lower Court as a product of its evaluation of the evidence and ascription of probative value thereto. It is therefore convenient to take the issues together as the one nicely dovetails into the other.
Let me preface my consideration of these issues by restating that the Appellant has not appealed against the decree nisi for the dissolution of the marriage. It was in consideration of the facts on which it can be held that the marriage between the parties had broken down irretrievably in order to found that the parties had lived apart for at least three years, that the lower Court held that No. 8 Alabukun Street, Abule Oshun, Lagos was the matrimonial home of the parties and that the Appellant packed out of the said matrimonial home. See pages 170-174 of the Records. Accordingly, since the propriety of the decree nisi for the dissolution of the marriage is not a live issue in this appeal, the question of whether No. 8 Alabukun Street, Abule Oshun, Lagos was the matrimonial home of the parties is a moot point which will not impact on the live issues in this appeal.
Howbeit, I fail to appreciate the kerfuffle the Appellant is making in this regard. In paragraph 4 (iii) of the Amended Petition (page 60 of the Records), the Respondent pleaded particulars of the places and periods, where the parties co-habited; stating that they co-habited at No. 8 Alabukun Street, Abule Oshun Lagos from October 2006 to January 2010. Incidentally, it was in January 2010 that co-habitation ceased between the parties. In paragraph 2 of the Amended Answer to the Petition (page 70 of the Records), the Appellant admitted paragraph 4 of the Amended Petition. This should ordinarily lay to rest any issue as to whether No. 8 Alabukun Street, Abule Oshun, Lagos was the matrimonial home, since it stands to reason that a place where a married couple co-habited for over three years, cannot be anything but their matrimonial home. In the circumstances, since there is no challenge in this appeal on the dissolution of the marriage, it will be inutile to join the parties on their odyssey into whether the lower Court was right to hold that No. 8 Alabukun Street, Abule Oshun, Lagos was the matrimonial home of the parties. It would play no part in my consideration of issue numbers two and three.
ISSUE NUMBERS TWO AND THREE
Whether the learned trial judge did not err when he found that the ‘1st property is known as 42, Adewunmi Kosemani Street, Idimu Lagos. The property was purchased solely by the Respondent during parties’ Courtship’ and ‘I therefore accept Exhibit B (a survey plan) as establishing that Okota property is a joint property of parties’ went ahead and conclude that ‘the properties can be regarded as products of their joint efforts.’
Whether the trial Court was not wrong in law (and fact) when the Court granted to the respondent a claim which was not sought by her at the trial Court.
SUBMISSIONS OF THE APPELLANT’S COUNSEL
The Appellant submits that the lower Court was wrong when it held that the Respondent contributed towards the building of the Idimu property and the acquisition and building of the Okota property and was therefore entitled to a share of the properties. It was maintained that the finding is not borne out by the evidence and that the law is settled that the owner of the land owns everything attached to the land. It was stated that the Respondent conceded that the Idimu property was solely purchased by the Appellant during their Courtship and so even if the Respondent contributed anything while the building was being constructed, it would not make her a joint owner of the property that was acquired before their marriage.
It was contended that the Respondent did not produce any evidence to prove that she actually contributed the amount she claimed she contributed to the building of the house. Section 132 of the Evidence Act and the cases of AWUZIE vs. NKPARIAMA (2002) 1 NWLR (PT 747) 1, OKEREKE vs. UMAHI (2016) 10 SCM 144 at 177 and UNIV. OF ILORIN vs. OBAYAN (2018) 4 SCM 188 at 199 were referred to. It was posited that the Respondent did not keep any record or document of the N3million she allegedly contributed and left the lower Court to speculate and guess, which a Court should not do vide RAJCO INT’L LTD vs. LE CAVALIER MOTELS & RESTAUARANTS LTD (2016) LPELR-40082 (CA) at 20, GEORGE vs. UBA LTD (1972) 8-9 SC 4 and SEISMOGRAPH LTD vs. OGBENI (1976) 4 SC 85 at 101. It was asserted that the Respondent conceded that the Idimu property was solely acquired by the Appellant.
On the property at Okota, that Appellant concedes that Exhibit B, the survey plan of the property, shows that it is jointly owned by the parties. It was however stated that the evidence is that the property was jointly built in the names of the parties for the benefit of their children. It was opined that the lower Court, rather than give the house to the children, ordered that a deed of transfer be executed in favour of the Respondent, thereby occasioning a miscarriage of justice.
The Appellant further argued that the Respondent did not produce credible evidence of the value of the Okota house and how she contributed up to N10 million for the property, when in fact she admitted that what she did was “supervision to ensure the building was completed”. It was posited that the evidence adduced was not of such a quality for Respondent to be entitled to judgment. The case of OBASI BROTHERS MERCHANT CO. LTD vs. MERCHANT BANK OF AFRICA SECURITIES LTD (2005) NSCQR VOL. 21 275 at 284 and 286 was called in aid. It was conclusively contended that the lower Court erred when it held that the properties at Idimu and Okota were joint property and product of their joint efforts and therefore ordered that the Okota property be transferred to the Respondent while the Idimu property be partitioned in her favour.
The Appellant’s submission on the third issue he distilled for determination is that the relief claimed by the Respondent is for the Okota property to be settled by the Appellant, but that the lower Court granted an order which “violently run riot” against the relief claimed, when it ordered that a Deed of Transfer for the Okota property should be executed in favour of the Respondent and that the Idimu property be partitioned in favour of the Respondent. It was posited that a Court does not grant reliefs which were not claimed since the Court is not Father Christmas. The cases ofAKINDURO vs. ALAYA (2007) NSCQR, VOL. 30, 601 at 620 and A-G ABIA vs. A-G FEDERATION (2006) NSCQR, VOL. 28, 161 at 259 were cited in support.
It was contended that the relief claimed in respect of the property was too wide, vague, unmanageable and unspecific and that the lower Court should have refused the relief instead of tinkering with the relief and granting what was not claimed as the effect of settling property is not the same as transferring a property by deed. It was stated that being a divorce case, the relief for settlement of property was for the property to be shared and not for it to be given to one of the parties. Page 3847 of Black’s Law Dictionary, 2004, Electronic Edition was referred to. This Court was urged to interfere with the findings made by the lower Court. The case of USHIE vs. THE STATE (2018) SCM 189 at 199 was relied upon.
SUBMISSIONS OF THE RESPONDENT’S COUNSEL
The Respondent submits that the Appellant, having chosen to rely on the evidence of the Respondent and not adduce his own evidence, the effect was that what the Respondent said in evidence was true. It was stated that the Appellant did not lead any evidence to disprove the Respondent’s evidence that she invested in the Idimu property. It was opined that the lower Court did not find the parties joint owners of the Idimu property, but that it rightly stated that the property was developed through the joint effort of the parties.
The Respondent asserted that ventures entered into as a married couple are to yield rewards that are shared as a married couple and therefore the Respondent’s contribution was towards a home for the family which they would have shared if not for the breakdown of the marriage. The lower Court, it was maintained, rightly held that the Idimu property was a product of the joint effort of the parties. The Respondent contended that as a wife, developing a property and contributing by any means, not just financially, where she and her family are to live, she will not be expected to keep receipts in anticipation of the end of the marriage, as correctly found by the lower Court at page 179 of the Records. It was stressed that the Appellant did not contradict the Respondent’s testimony on her contribution to the development of the properties in cross examination and also failed to proffer alternative evidence, as a result of which the lower Court acted on the available evidence.
With respect to the Okota property, it was contended that the Respondent never stated that all she did was supervise the construction of the building, but clearly stated that she spent up to N10 million on the property, which was not debunked or controverted and could therefore be taken as valid and credible. The Court was urged to affirm the findings of the lower Court that the Respondent contributed towards the building of the Idimu property and the acquisition and building of the Okota property, such that both properties were products of the joint efforts of the parties.
The quiddity of the Respondent’s submission on issue number three is that while a Court cannot award a relief not claimed, the Court still has the power to grant a consequential order which may not necessarily be based on the relief claimed vide AGWARANGBO vs. NAKANDE (2000) 9 NWLR [no part stated] 341, ATOLAGBE vs. SHORUN (1985) 1 NWLR (PT 2) 360, GARBA vs. UNIVERSITY OF MAIDUGURI (1986) 1 NWLR (PT 18) 530 among other cases.
Relying on Sections 70 and 72 of the Matrimonial Causes Act, 2004, the Respondent contends that the Court can, in exercise of discretion, require settlement of property belonging to either or both parties where the Court considers it just and equitable in the circumstances of the case. The cases of KAFI vs. KAFI (1986) 3 NWLR (PT 27) 175 at 186 and AKINBUWA vs. AKINBUWA (1998) 7 NWLR (PT 559) [no page stated] were relied upon.
APPELLANT’S REPLY ON LAW
The Appellant submits in his Reply Brief that assuming, but without conceding, that the Respondent’s evidence was unchallenged or uncontradicted, the Court is not expected to take the evidence where it is not credible, preposterous, inconclusive and insufficient. The case of NEKA B.B.B. MANUFACTURING CO. LTD vs. ACB LTD (2004) ALL FWLR (PT 198) 1175 at 1197 was cited in support. It was contended that any order made pursuant to Section 72 of the Matrimonial Causes Act ought to have been restricted to the relief sought which is to settle the property for the Respondent’s benefit and not extend to execution of deed of transfer of the property which was not claimed in the action.
RESOLUTION OF ISSUE NUMBERS TWO AND THREE
The contest under these issues are the properties situate at No. 9 Fountain of Love Street, off St. Cyril Church, Okota, Lagos and No. 42 Adewunmi Kosemani Street, Idimu, Lagos. It is agreed on all sides that the Okota property was acquired in the joint names of the parties. It is equally agreed that the Appellant purchased the property at Idimu before the marriage but that the development on the land was made after the parties had become married.
In the consideration and resolution of issue number one, I arrived at the conclusion that the lower Court was right when it found and held that the Appellant abandoned his pleadings and that the evidence elicited by the Appellant in cross examination of the Respondent did not support the averments in the Appellant’s Answer to the Petition.
The Respondent was the Petitioner before the lower Court, so she bore the evidential burden of proving her case on the preponderance of evidence and balance of probability. It is the trial Court that sees the witnesses, hears their testimony and observes their demeanour. It therefore has the primary duty of evaluating and ascribing probative value to the evidence adduced. In its duty of perception of evidence, id est, receive all available relevant evidence, the lower Court took the evidence of the Respondent, it next had the duty to weigh that evidence in the context of the surrounding circumstances of the case. This is evaluation of evidence, after which it makes findings of facts on the evidence. See OLUFOSOYE vs. OLORUNFEMI (1989) 1 SC (PT 1) 29 or (1989) LPELR (2615) 1 at 9, GUARDIAN NEWSPAPER LTD vs. AJEH (2011) 10 NWLR (PT 1255) 574 at 592 and WACHUKWU vs. OWUNWANNE (2011) LPELR (3466) 1 at 50-51. In evaluation of evidence, the Court assesses the evidence to determine whether it preponderates in favour of the basic proposition which it seeks to establish: MOGAJI vs. ODOFIN (1978) 4 SC 91, ONWUKA vs. EDIALA (1989) 1 NWLR (PT 96) 182, AMEYO vs. OYEWOLE (2008) LPELR (3768) 1 at 9 and OBASI BROTHERS MERCHANT COMPANY LTD vs. MERCHANT BANK OF AFRICA SECURITIES LTD (2005) 4 MJSC 1 at 26.
It bears restating that the Appellant did not call any witness and the lower Court rightly held that the evidence elicited by the Appellant in cross examination of the Respondent did not support the averments in the Appellant’s Answer to the Petition; consequent upon which the Answer stood abandoned. It is indisputable that where the party in an action offers no evidence in his defence, the evidence before the Court goes one way and there will be nothing to put on the other side of the imaginary scale of justice as against the evidence for the other side. The onus of proof in such a case is discharged on a minimal of proof. In ASAFA FOODS FACTORY LTD vs. ALRAINE (NIG) LTD (2002) LPELR (570) 1 at 29, Iguh, JSC stated:
“In the absence of the defendants in the present case adducing any evidence whatsoever, their own side of the imaginary scale remained weightless and unable to tilt the proverbial scale which clearly was heavily laden in one direction, to wit, on the side of the Plaintiff. The onus of proof in such a case by a Plaintiff is discharged quite easily on minimum proof.”
See also NWABUOKU vs. OTTIH (1961) 2 SCNLR 232, BROADLINE ENTERPRISES LTD vs. MONTEREY MARITIME CORPORATION (1995) LPELR (807) 1 at 27 and OGUNJUMO vs. ADEMOLU (1995) LPELR (2337) 1 at 23-24.
This is precisely the position in this matter. There is nothing on the Appellant’s side of the imaginary scale of justice. All the evidence is stacked on the Respondent’s side of the scale and it discharges the burden of proof on her on a minimal proof; an expression which has been held to mean “as little as possible or very little”: LARMIE vs. DATA PROCESSING MAINTENANCE & SERVICES LTD (2005) LPELR (1756) 1 at 38-39.
I have gone through the evidence on record with the finery of a judicial toothcomb and I am unable to agree with the Appellant that the evidence adduced by the Respondent, though uncontradicted is not such that a reasonable tribunal would believe. The evidence discharged the onus on the Respondent on a minimal of proof and the lower Court rightly held that the Respondent contributed towards the building, acquisition and building of the two properties (see pages 179 of the Records).
The guidelines which a Court adopts in applying the settlement of property principles in matrimonial causes include determining whether or not the property in question or some other property was acquired by the parties or one of the parties during the course of the marriage, and if so, what was the contribution of each party to the cost of acquisition. See RIMMER vs. RIMMER (1952) 2 ALL ER 863, ANADI vs. NWOSU (1992) 6 SCNJ 59 and ADEROUNMU vs. ADEROUNMU (2003) 2 NWLR (PT 803) 1. The Appellant argues that the Respondent did not produce any document to authenticate her claim that she contributed to the ownership of the properties. I am not enthused by this contention. It has to be remembered that the relationship between the parties was not a business relationship. They were in a marital relationship, for better for worse until death do them part; though the irretrievable breakdown of the marriage made them part; but then, given the marital relationship, it would have been strange for the Respondent to have kept documents showing what she was expending in building the house for their marital union. In this regard, I agree with the lower Court, when it held as follows at page 179 of the Records:
“It happens often that a good number of transactions embarked upon during the course of a marriage are done on trust based on the relationship of marriage and as such, it is not expected that such transactions would be documented as in a business/commercial relationship.”
Be that as it may, it is pertinent to state that the contribution of a party does not necessarily have to be in the nature of a cash outlay for the purchase or development of the property. It can be by way of moral and/or financial contribution to the business of a husband by a wife where the property is purchased from the profits of the business. 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 or some development on the property was completed after and in the course of the marriage. See generally SANDERS vs. SANDERS (1967) 116 CLR 366, WATCHEL vs. WATCHEL (1973) ALL ER 829, KAFI vs. KAFI (1986) 3 NWLR (PT 27) 175 and IBEABUCHI vs. IBEABUCHI (2016) LPELR (41268) 1 at 30-31.
The matter does not end there. At least not yet. A claim originates an action. It is the cynosure of the case. It sets out the reliefs or relief sought in the action. A party who comes to Court knows where the shoe pinches him and therefore knows what he wants from the Court. The generosity or charity of a Court of law is confined strictly to the relief or reliefs sought, such that a Court cannot give a party what he did not claim. See OSUJI vs. EKEOCHA (2009) LPELR (2816) 1 at 44 and 55, DUMEZ NIG LTD vs. NWAKHOBA (2008) LPELR (965) 1 at 26 and EAGLE SUPER PACK (NIG) LTD vs. ACB PLC (2006) 10 NWLR (PT 1013) 20 or (2006) LPELR (980) 1 at 40.
The Respondent knew precisely what she wanted from the Court as the person wearing the shoes and who knew where it was pinching her. So having averred in the Petition that the properties at Okota and Idimu were developed by the joint effort and contribution of the parties continued and averred as follows in paragraph 8 vii of Amended Petition:
“vii. The Petitioner sequel to the contribution she made to the purchase of the land in Okota and in the building of the property at Okota and Idimu avers that she is entitled to the property at Okota.” So the Respondent restricted her entitlement to the property at Okota. This becomes more effulgent by the relief claimed in paragraph 11 (10) of the Amended Petition at page 65 of the Records thus:
“(10) An order that the Respondent settles the property situate at and known as 9, Fountain of Love Street, Off St. Cyril Church, Okota, Lagos being one of the two properties jointly purchased and developed by the Petitioner and Respondent.”
In the light of the relief claimed for settlement of property which limited the claim to the Okota property, the claim was binding on the parties and the Court. The Court was therefore duty bound to adjudicate on settlement of property in respect of the Okota property only, which was the claim before it: OSUJI vs. EKEOCHA (supra) at 44, AKINTERINWA vs. OLADUNJOYE (2000) LPELR (358) 1 at 40 and EAGLE SUPER PACK (NIG) LTD vs. ACB PLC (supra). The lower Court therefore had no business making orders for settlement of property in respect of the property at Idimu; there was no such relief before the Court and the order of partition made by the lower Court in respect of the Idimu property is an unsolicited and unwarranted charity, which a Court, not being Santa Claus, should not engage in.
The Appellant complained that the lower Court was wrong to have made an order for a deed of transfer to be executed in favour of the Respondent in respect of the Okota property on the ground that such a relief was not claimed. The Appellant contended that the order of the lower Court ought to have simply been for the property to be settled on the Respondent as claimed. With due deference, a Court does not engage in mere verbiage nor does it make a vague order. A Court of law is imbued with the inherent jurisdiction to make consequential orders in the interest of justice even though the order was not specifically asked for: AKAPO vs. HAKEEM-HABEEB (1992) 7 SCNJ 119, LAYINKA vs. GEGELE (1993) LPELR (1769) 1 at 11 and EYIGEBE vs. IYAJI (2013) LPELR (20522) 1 at 24-25.
A consequential order is an order whose need arises naturally as a direct result of a substantive relief, to give effect to the substantive relief. A consequential order is an order which follows as a result of the main order. A consequential order is appurtenant to the main or principal order.
See AKINBOBOLA vs. PLISSON FISKO (NIG) LTD (1991) LPELR (343) 1 at 21, EZE vs. GOVERNOR OF ABIA STATE (2014) 7 SCNJ 30 at 57-58 and 60 and NOEKOER vs. EXECUTIVE GOVERNOR OF PLATEAU STATE (2018) LPELR (44350) 1 at 41-42. On the settled state of the law, the order of the lower Court for a deed of transfer to be executed in favour of the Respondent in respect of the Okota property is a consequential order flowing naturally from the grant of the relief for the settlement of the Okota property on the Respondent. The order was properly made as it need not be specifically pleaded and claimed.
The harbour looms into sight and it is now the appropriate time to berth the vessel that is this judgment at the quays. Except for the order made by the lower Court for the partition of the Idimu property, there is no basis to interfere with the evaluation of evidence by the lower Court and ascription of probative value thereto or interfere with the settlement of the Okota property with consequential order for a deed of transfer to be executed in favour of the Respondent. In a coda, the appeal succeeds in part but only as it relates to the Idimu property. For good order sake, order (ii) made by the lower Court at page 184 of the Records is modified to read as follows:
“The Petitioner (Respondent herein) is entitled to have the property known as No. 9 Fountain of Love Street, off St. Cyril Church, Okota, Lagos settle on her for her benefit. To this end the Respondent (Appellant herein) shall execute a Deed of Transfer of the said property in her favour.”
Save for this modification, the other orders embodied in the decision of the lower Court are hereby affirmed. There shall be no order as to bear costs.
JIMI OLUKAYODE BADA, J.C.A.: I read before now the draft of the lead Judgment of my learned brother UGOCHUKWU ANTHONY OGAKWU, JCA just delivered.
My Lord has dealt with all the issues in this appeal in a meticulous manner. I have nothing to add.
I agree with the reasons given as well as the conclusion that the appeal succeeds in part.
I abide by the consequential orders made in the said lead Judgment.
FOLASADE AYODEJI OJO, J.C.A.: I have read before now the judgment just delivered by my learned brother, UGOCHUKWU ANTHONY OGAKWU, JCA. I agree with the reasoning and conclusion that the appeal should succeed in part.
I abide by all the orders made in the lead Judgment.
Appearances:
Olusola Oke, Esq., with him, Ms. O. E. Ogunleye For Appellant(s)
Olusegun Olaiya, Esq. For Respondent(s)
