TONGO v. TONGO (2020)

TONGO v. TONGO

(2020)LCN/15601(CA)

In the Court of Appeal

(BENIN JUDICIAL DIVISION)

On Monday, December 14, 2020

CA/B/169/2017

Before Our Lordships:

Moore Aseimo Abraham Adumein Justice of the Court of Appeal

Biobele Abraham Georgewill Justice of the Court of Appeal

Gabriel Omoniyi Kolawole Justice of the Court of Appeal

Between

MRS. MARY TONGO APPELANT(S)

And

ELDER DR. BEST G. A. TONGO RESPONDENT(S)

RATIO:

Anybody pleading averment must lead credible evidence in proof of the averments

It must be borne in mind that in law, averment in a pleading does not by itself constitutes evidence. Thus, a party who has pleaded facts is under a duty to lead credible evidence in support and in proof thereof at the trial if he must have judgment entered in his favor. A failure, to lead credible evidence in proof of the averments would render such averments abandoned and thereby going to no issue in the determination of the issues joined by the parties in the Suit. BIOBELE ABRAHAM GEORGEWILL, J.C.A.

Whether a party to a divorce petition have the right to benefit from a marriage that is a nullity

The Matrimonial Causes Act did not envisage a scenario whereby a marriage that is a nullity would confer rights on either party to benefit under an act that is null and void ab initio… BIOBELE ABRAHAM GEORGEWILL, J.C.A.

Duty of the Appellate court once a trial court diligently carries out critical appraisal and evaluation of issue and evidence of parties.

It is thus the duty of the Court below not only to merely review or restate the evidence led before it by the Parties but to critically appraise and evaluate it in the light of the issues of facts as disclosed and joined by the parties and in the course of doing so determine which evidence is relevant or admissible or credible or incredible and which weight to attach to the evidence. Consequently, once a trial Court had carried out this primary duty correctly and come to a right conclusion and sound decision in its judgment that is the end of the matter as no appellate Court worth its name and honor would interfere where the conclusion reached by the trial Court was right and its decision sound on the evidence as led before it. See TSA Industries Ltd. V. Kema Investments Ltd. (2002) 2 NWLR (Pt. 964) 300. See also Agbomeji V. Bakare (1998) 9 NWLR (Pt. 564) 1; Okada Airlines Ltd. V. FAAN (2015) 1 NWLR (Pt. 1439) 1@ p. 23. BIOBELE ABRAHAM GEORGEWILL, J.C.A.

When an Appellate court would be bound to interfere to re-evaluate the evidence reaching the decision of a trial court.

. BIOBELE ABRAHAM GEORGEWILL, J.C.A.

What error will will lead to a reversal of the judgment of a Court?

An appellate Court would therefore, readily interfere to re-evaluate the evidence in the printed record if is shown that the findings or decisions of the trial Court was perverse in that the conclusion drawn from the proved facts does not flow there from or runs contrary to such proved facts. However, it is not the law that a judgment of a Court is bound to be reversed on account of every error found in it but rather the law is that an error that will lead to a reversal of the judgment of a Court must be one that is substantial and had caused a miscarriage of justice. See Oladele V. Aromolaran II (1996) 6 NWLR (Pt. 453) 180. See also NBC Ltd. V. Olarenwaju (2007) 5 NWLR (Pt. 1027) 255; Okada Airlines Ltd. V. FAAN (Supra) @p. 22; Owor V. Christopher (2010) All FWLR (Pt. 511) 962; Sogbamu V. Odunaiya(2013) AII FWLR (Pt. 700) 1247. BIOBELE ABRAHAM GEORGEWILL, J.C.A.

Whether a party will be allowed to benefit from its own wrong

Whether a party in a divorce petition coming with unclean hand can benefit from his wrong

See also Solanke V. Abed & Anor (1962) WRNLR 92; Kasumu V. Baba Egbe 14 WACA 444; Motoh V. Motoh (2010) LPELR- 8643 (CA); The Queen V. Bartholomew Princewell (1963) NNLR 54 @ p. 55.
See further Section 370 of the Criminal Code, which provides as follows:
‘Any person who, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, is guilty of a felony, and is liable to imprisonment for seven years
This Section does not extend to any person whose marriage with such husband or wife has been dissolved or declared void by a Court of competent jurisdiction, nor to any person who contracts a marriage during the life of a former husband or wife, if such husband or wife, at the time of the subsequent marriage, shall have been absent from such person for the space of seven years, and shall not have been heard of by such person as being alive within that time.”
In law, a person such as the Respondent, of such slippery character, unashamed and unabashed by the very repulsive act of his and relying on the same repulsive and repugnant act to seek a relief from, not just a prayer house where confessions and redemption holds sway but, a Court of law, justice and equity where only those who come with clean hand would find succor, is not entitled in my finding to any favorable consideration, coupled with the total dearth of any relevant evidence in line with his copious pleading, but ought to have had his claims dismissed. See Green V. Green (2001) 45 WRN 90 @ P. 138, where Aniagolu, JSC, had opined inter alia thus:
“As a matter of General Principle of avoiding injustice and absurdity, a Court would not allow a person to profit by his own wrong. A person may not create a crisis in support of his interest.”
See also UBN Plc V. Ayodare & Sons (Nig.) Ltd(2007) 13 NWLR (1052) 567 @ p. 597, where Oguntade JSC., had stated inter alia thus:
“The question whether a contract declared void by statute is illegal has been considered in a number of cases which are referred to in Maxwell on the Interpretation of Statutes (10th Edition) at page 212 where the position is set out in this way:- It may, probably, be said that where a statute not only declares a contract void, but imposes a penalty for making it, it is not voidable merely. The penalty makes it illegal. In general, however, it would seem that where the enactment has relation only to the benefit of particular persons, the word ‘void ‘would be understood to as ‘voidable’ only at the election of the persons for whose protection the enactment was made and who are capable of protecting themselves…” not have been heard of by such person as being alive within that time.” BIOBELE ABRAHAM GEORGEWILL, J.C.A.

BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Edo State, Coram: G. O. Imadegbelo J., in Suit No. B/21D/2013: Elder Dr. Best G. A. Tongo V. Mrs. Mary Tongo, delivered on 19/9/2016, wherein the Respondent’s Petition for Nullification of the Marriage between the Appellant and the Respondent was granted, while the Cross Petition of the Appellant against the Respondent was dismissed.

The Appellant was dissatisfied with the said judgment and promptly appealed against it vide a Notice of Appeal filed on 2/11/2016 on six grounds of appeal at pages 124 – 130 of the Record of Appeal. The Record of Appeal was duly transmitted to this Court on 7/4/2017. The Appellant’s Brief was filed on 22/9/2017 but was deemed as properly filed on 30/5/2018. The Respondent’s brief was filed on 3/7/2018. The Appellant’s reply brief was filed on 18/11/2020 but was deemed as properly filed on 19/11/2020.

At the hearing of this appeal on 19/11/2020, Etosa Igbinemkaro Esq., learned counsel for the Appellant adopted the Appellant’s brief and reply brief as his arguments and urged the Court to allow the Appeal and set aside the judgment of the Court below and grant the Cross Petition of the Appellant, while dismissing the Petition of the Respondent. On his part, O. I. Usunobun Esq., learned counsel for the Respondent, appearing with I. K. Salami Esq., adopted the Respondent’s brief as their arguments and urged the Court to dismiss the appeal and affirm the judgment of the Court below.

By a Petition for Decree of Nullification of Marriage filed on 17/1/2013, the Respondent as Petitioner claimed against the Appellant as Respondent the following reliefs, to wit:
1. A Decree of nullity of the purported marriage between the Petitioner and the Respondent celebrated on 13th August, 2011 on the ground that the marriage is void ab initio, the Petitioner still legally married to Mrs. Elizabeth Tango at the time of celebration of the purported marriage.
2. A Decree of nullity of marriage on the ground that there was no registers certificate or notice of licence issued under Section 13 of the Matrimonial Causes Act before the said marriage.
3. A Decree of nullity of marriage on the ground that the consent of the Petitioner to the marriage was not a real consent having been obtained by duress.
4. AND any further ORDERS as may seem just. See pages 1 – 3 of the Record of Appeal.

Upon service of the Petition, the Appellant as Respondent filed on 24/6/2014 a Cross Petition against the Respondent claiming the following reliefs, to wit:
1. That the prayers of the Petitioner should be rejected and his Petition dismissed in entirety.
2. That an order of this Court be made declaring that the marriage between the Petitioner and the Respondent/Cross Petitioner was lawfully and legally contracted and same is valid and still subsisting.
3. A Declaration by this Court that the Petitioner consciously and deliberately deceived the Respondent/Cross Petitioner into marrying him by serially lying to the Respondent/Cross Petitioner
4. A Declaration by this Court that the purported marriage between the Petitioner and Mrs. Elizabeth Tango purportedly solemnized on the 17/7/2011 was unlawfully and illegally contracted and same is null and void ab initio.
5. A Declaration of this Court that the gift and donation by the Petitioner to the Respondent/Cross Petitioner of his four (4)bedrooms bungalow lying and situate at No.1, Calvin Street, off Benin Technical College Road, Benin City is a complete, valid and subsisting perfect gift to the Respondent/Cross Petitioner.
6. An Order of specific performance of this Honourable Court directing and mandating the Petitioner to execute for the benefit of the Respondent/Cross Petitioner a Deed of Gift transferring all that property and its appurtenances lying and situate at No.1, Calvin Street off Benin Technical College Road, Benin City, to the Respondent/Cross Petitioner.
7. An Order of this Court on the Petitioner for his payment to the Respondent/Cross Petitioner a monthly sum of N150,000.00k (One Hundred and Fifty Thousand naira) only as feeding, maintenance and upkeep allowance from the 17th day of January, 2013.
8. An Order of this Court on the Petitioner to pay the Respondent/Cross Petitioner a sum of N100,000.000.00 as a lump sum for the settlement of the Respondent/Cross Petitioner.
9. An Order of payment of the sum of N1,000,000.00 on the Petitioner to the Respondent/Cross Petitioner as incidental cost and expenses for defending the petition and conduct of the Cross Petitioner. See pages 21-43 of the Record of Appeal.

BRIEF STATEMENT OF FACTS:
On the one hand, the gist of the case of the Respondent as Petitioner/Cross-Respondent before the Court below as can be gleaned from the averments in his pleadings and evidence as in the Record of Appeal was that the Respondent then lawfully married to one Mrs. Elizabeth Tongo purportedly got married to the Appellant, formerly known as Mary Idubor at the Oredo Marriage Registry, Benin City, Edo State on 13/8/2011 under the Marriage Act. The Respondent has always ordered his life in accordance with Nigeria Law and that after the purported marriage the parties did not co – habit but lived separately and visited each other from time to time. The grounds for the Petition were that the purported marriage between the Respondent and the Appellant was void ab – initio in that at the time of the said purported marriage the Respondent was already married, to the knowledge of the Appellant, to Mrs. Elizabeth Tongo under Benin Native Law and Custom in 1975 which Marriage was subsequently Solemnized at the United Christ Redemption Church (Cathedral) Benin City on 17/7/2011 under the Marriage Act and the said marriage is still subsisting till date. There was no Registrar’s Certificate of Notice or License issued by Minister for the said purported marriage as the Respondent was deceived by the Appellant to the Oredo Marriage Registry to sign the purported Marriage Certificate after she had earlier taken the Respondent to one Church at I.C.E Road, Benin City and the Respondent refused to engage in any Marriage with the Appellant and the Pastor also refused to conduct the marriage because he knew the Respondent had a wife and children.

It was also the case of the Respondent that he was only told by the Appellant to accompany her and her daughters to Oredo Local Government Secretariat to see her friend only to be deceived to sign the purported marriage certificate because the Appellant has a great spiritual influence over the Respondent being a self – acclaimed Evangelist and prophetess who had been praying for him and keeping spiritual watch over him before the purported marriage. However, since the purported marriage, the Appellant was always coming to the Respondent’s office to fight him and on one occasion almost killed him on his return from overseas medical trip, if not for the help of neighbors who came to his rescue. The Appellant had threatened and still continues to threaten to kill the Respondent and inherit his property and he has not condoned or connived on the ground specified above and is not guilty of collusion in presenting the Petition.

On the one other hand, the gist of the case of the Appellant as Respondent/Cross Petitioner as can be gleaned from the averments in her pleadings and the evidence put forward by her and her witness as in the Record of Appeal was that she was approached by the Respondent, who represented himself as no longer married to the mother of his children, with a marriage proposal. Her inquiry led her to the eldest member of Respondent’s family who corroborated the claim of the Respondent. In contemplation of a marriage between the Respondent and Appellant and upon her acceptance of the Respondent’s marriage proposal, he in line with his promise handed over a 4 Bedroom bungalow apartment situate at No.1, Calvin Street, off Wisdom Street, Benin City, Edo State to her as an outright gift in the presence of witnesses and she was accordingly put in possession.

The marriage rites between Appellant and Respondent was thus commenced with the Marriage Introduction ceremony, followed with the Traditional Marriage on 23/7/2011, Church Blessing/Thanksgiving on the 24/7/2011 and Solemnization of the Marriage under the Marriage Act at the Oredo LGA of Edo State Marriage Registry on the 13/8/2011. The marriage ceremonies were widely publicized and attended by members of both families, especially notable members of Respondent’s family. Before the solemnization of the said marriage, the Respondent had caused to be issued and published by the Registrar of Marriage, a twenty one day’s Notice of the Marriage between the parties but while the said Notice of Marriage was subsisting and pending, the Respondent had on 17/7/2011, without notice to the Appellant, surreptitiously and covertly celebrated a purported marriage under the Marriage Act with one Elizabeth Tango and yet had on 13/8/2011, with full knowledge of his less than one month alleged marriage to the said Elizabeth Tango and without divulging his alleged status to either the Appellant or the Marriage Registrar, celebrated an elaborate marriage under the Marriage Act with the Appellant. Thereafter, they co – habited at No.1, Calvin Street, off Wisdom Street, Benin City, Edo State with full consortium and conjugal rights extended to the Respondent by the Appellant.

The parties filed and exchanged pleadings and the matter proceeded to trial. At the trial, the Respondent/Petitioner testified as PW1 and tendered some documents admitted in evidence as Exhibits A and B and closed his case. In her defense and in proof of her Cross Petition, the Appellant/Respondent/Cross Petitioner testified as DW1 and called one witness, Ayo Idubor, who testified as DW2 and tendered some documents admitted in evidence as Exhibits C1, C2, D1 – D10, E1 – E12 and F and closed her case. The parties filed and exchanged written addresses, which were subsequently adopted by their counsel. On 19/9/2016, the Court below delivered its judgment granting the claims of the Respondent, while dismissing the Cross Petition of the Appellant, hence this appeal. See pages 111 – 123, 124 – 130 of the Record of Appeal.

ISSUES FOR DETERMINATION
In the Appellant’s brief, three issues were distilled as arising for determination from the six grounds of appeal, to wit:
1. Whether given the circumstances of this matter, the marriage between Appellant and Respondent in worst scenario, ought not to be voidable at the instance of the Appellant and not “void ab-initio” as held by the trial Court? (Distilled from Ground 3)
2. Whether the Respondent can set up his willful wrong as a ground to invalidate his marriage with the Appellant with the intention to rescind his commitments to the Appellant in the circumstances of Respondent having taken full benefits of Appellant’s companionship and other ancillary consortium? (Distilled from Grounds 1, 2 and 4)
3. Whether the trial Court properly evaluated the evidence placed before it and whether the Judgment of the trial Court is not misleading and ineffectual? (Distilled from Grounds 5 and 6)

In the Respondent’s brief, two issues were distilled as arising for determination from the three grounds of appeal, to wit:
1. Whether the learned trial judge having made a finding of fact that the Petitioner was lawfully married to someone else before the marriage between the Petitioner and Respondent/Cross-Petitioner on 13/8/2011 was not right to have given full effect to Sections 33 (1) and 35 Marriage Act, Cap M7 Laws of the Federation, 2004 and Section 3(1) (a) Matrimonial Causes Act, Cap M7, Laws of the Federation of Nigeria, 2004?
2. Whether the learned trial judge was not legally right in refusing to grant the Cross Petitioner/Appellant’s claim for a gift of house where the consideration is tainted in an illegality?

My Lords, upon due consideration of the pleadings on the issues as joined and the evidence as led by the parties before the Court below as can be gleamed from the Record of Appeal in the light of the findings in the judgment of the Court below, it does appear to me that the two issues for determination as distilled in the Respondent’s brief are the two apt issues for determination in this appeal, a consideration of which would, in my view, involve a consideration of all the three issues as distilled in the Appellant’s brief. However, all the issues in this appeal appears to me to be interwoven, I shall therefore consider the two issues for determination together and resolve them in one fell swoop.

ISSUES ONE AND TWO
Whether the learned trial judge having made a finding of fact that the Petitioner was lawfully married to someone else before the marriage between the Petitioner and Respondent/Cross-Petitioner on 13/8/2011 was not right to have given full effect to Sections 33 (1) and 35 Marriage Act, Cap M7 Laws of the Federation, 2004 and Section 3(1) (a) Matrimonial Causes Act, Cap M7, Laws of the Federation of Nigeria, 2004 AND whether the learned trial judge was not legally right in refusing to grant the Cross Petitioner/Appellant’s claim for a gift of house where the consideration is tainted in an illegality?

APPELLANT’S COUNSEL SUBMISSIONS
On his issue one, learned counsel for the Appellant had submitted that the Appellant was approached by the Respondent to marry him and that from the beginning, the marriage and nothing else was the subject of Respondent’s proposal to the Appellant and contended that the Respondent equally represented to the Appellant that he was a single man and lawfully available for re-marriage, the marriage between him and the mother of his children having been dissolved according to Bini customary rites and urged the Court to hold that the marriage celebrated between the parties with elaborate marriage ceremonies with attendance of family members, friends and well-wishers was valid in law and to set aside the perverse finding of the Court below and to allow the appeal and grant the Cross Petition of the Appellant.

It was also submitted that the Appellant celebrated a marriage with a man she was made to believe was single and unmarried but who had turned around to mischievously allege the existence of a prior marriage to some other person and contended that the totality of evidence unmistakably points to the fact that the schemes orchestrated by the Respondent were in order to place impediments to the validity of the marriage which the Appellant innocently celebrated with him and urged the Court to hold that in law knowledge and complicity by a party to a subsequent marriage of a prior and subsisting marriage of a spouse is an important factor in holding whether or not the subsequent marriage is valid, voidable or void ab-initio and therefore, at worst was merely voidable at the instant of the Appellant and not the Respondent as erroneously held by the Court below. Counsel relied on Spiers V. Hunt (1908) 1 K.B. 720; Alake V. Aderinlo (Unreported) High Court of Western State, Abeokuta Division; Sagay: Nigerian Law of Contract, 2nd Edition (Spectrum Books Limited) Ibadan, Nigeria, 2000 @ pp. 390-391.

It was further submitted that the circumstances of this appeal makes the marriage innocently contracted by the Appellant side by side the general representations and conducts of the Respondent, voidable at the instance of the innocent Appellant who would then be entitled to enforce acquired rights, interest and privileges against the Respondent for his criminal acts and contended that the Courts are enjoined to look beyond the letters of the law to uncover its spirit to avoid injustice but the Spirit of the letters if equitably scrutinized and harnessed would give life to the intendment of the makers of the Marriage Act and the Matrimonial Causes Act and urged the Court to so do. Counsel referred to Sections 33(2), 45, 46 and 47 of the Marriage Act; Sections 26, 28 and 35 of the Matrimonial Causes Act 1970 and relied on Amaechi V. INEC & 2 Ors (2008) 1 S.C. (Pt.1) 36 @p. 204; Abubakar & 2 Ors V. Yar’Adua & 13 Ors (2008) 12 SC (Pt.11) 1; Onwudinjo V. Onwudinjo (1958) ERNLR1 @ p. 4; Akuwudike V. Akuwudike (1963) 7 ENLR 5; Akparanta V. Akparanta (1972) 2 ECSLR 779.

On his issue two, learned counsel for the Appellant had submitted that it was clear before the Court below that the whole conduct of the Respondent was directed and targeted towards deceitfully and wrongfully taking undue advantage of the Appellant with the latent intention of setting up his wrong doings as a ground to avoid honouring his commitments to the Appellant, after enjoying all the ancillary benefits of marriage offered by the Appellant to her detriments, including loss of several pregnancies and general harassment and torture, and contended that the Respondent was merely seeking to take advantage of his wrongdoing and setting up his criminality pursuant to as a shield and urged the Court to hold that in law the Respondent cannot set up his willful wrongdoing constituting a crime as a ground to invalidate his marriage with the Appellant with the intention of rescinding his commitments to the Appellant. Counsel referred to Sections 45, 46 and 47 of the Marriage Act and relied on Ibekwe V. Maduka (1995) 4 NWLR (Pt. 392) 716; Muhammed V. Muhammed (2012) 11 NWLR (Pt. 1310) 1 @ pp. 42–43;MC Neir V. MC Neir, 178 Va 285 @ p. 293 (1941); Okafor V. Okafor (2002) FWLR (Pt.120)1712 @ p. 1715.

On his issue three, learned counsel for the Appellant had submitted that the Court below failed to duly evaluate the evidence adduced before it in that it failed to take cognizance of the fact that the Appellant’s Cross-Petition was largely unchallenged and uncontradicted by the Respondent who did not file a Reply to the Cross-Petition and so also were the evidence adduced by the Appellant largely uncontroverted by the Respondent and contended that had the Court below properly evaluated the evidence adduced before it, it would have found for the Appellant against the Respondent and urged the Court to re-evaluate the totality of the evidence led by the parties and come to the correct findings in favor of the Appellant and to allow the appeal and set aside the judgment of the Court below and hold that the marriage was voidable with all the accrued rights of the Appellant intact on its being voided by this Court.

Counsel referred to Section 15 of the Court of Appeal Act (2010 Amendment); Section 38 (2) of the Matrimonial Causes Act 1970and relied on Ezeoke & Ors V. Nwagbo (1988) 3 SCNJ 37 @ p. 48; Mogaji & Ors V. Odofin & Ors {1978} 3 SC 91 @ p. 95.

RESPONDENT’S COUNSEL SUBMISSIONS
On issue one, learned counsel for the Respondent had submitted that Section 33(1) of the Marriage Act, Cap M7 laws of the Federation of Nigeria, 2004 is mandatory and leaves no room for private interpretation and contended that the said provision of the Act invalidates any marriage in Nigeria where either of the parties to that marriage at the time of its celebration was previously married under customary law to any other person and urged the Court to hold that in law once the words in a Statute are clear and unambiguous they should be given their natural and ordinary meaning. Counsel relied on AG. Lagos State V. A G. Federation &Ors(2014) 9 NWLR(Pt.1412) 217 @ p. 304; Ibrahim V. Barde (1996) NWLR (Pt.474)513 @ p. 577; Oba Gabriel Aromolaran V. Dr. (Rev) Roland Agoro (2014) 18 NWLR (Pt.1438) 153 @ p. 174.

It was also submitted that the Court below having rightly found as fact that the Respondent was married to someone else, one Mrs. Elizabeth Tongo under Benin Native Law and Custom in 1975, which marriage was solemnized at the United Christ Redemption Church (Cathedral) Benin City on 17/7/2011, as in Exhibit A which was not challenged or controverted and thus good evidence, in law the subsequent purported marriage of the Respondent with the Appellant on 13/8/2011, as in Exhibit B, was a null and void and urged the Court to so hold and to affirm the correct finding of the Court below and dismiss the appeal for lacking in merit. Counsel relied on Alhaji Akande V. Jimoh Adisa (2012) 15 NWLR (Pt.1324) 538 @ p. 558; Gaji V. Paye (2003) FWLR (Pt.163) 1.

It was further submitted that in the light of the finding of facts that the marriage contracted between the Appellant and the Respondent on 13/8/2011 was void by reason of the earlier valid and subsisting marriage between the Respondent and his wife contracted under Native law in 1975 and solemnized under the Marriage Act on 17/7/200, the Court below was left with no option that to give effect to the Statutory provisions of the Marriage Act to declare the said latter marriage void and contended that it would have been ultra vires or beyond the jurisdiction of the Court below to have declared the said void marriages merely voidable and urged the Court to so hold and to affirm the findings of the Court below that the marriage between the parties was void and to dismiss the appeal for lacking in merit. Counsel referred to Section 3(1) of the Matrimonial Causes Act 1970 and relied on Oba Gabriel Aromolaran V. Dr. (Rev) Roland Agoro (2014) 18 NWLR (Pt.1438) 153 @ pp. 174 – 175; Adewumi V. AG. Ekiti State (2002) 2 NWLR (Pt.751) 474; Garba V. Federal Civil Service Commission (1988) 1 NWLR (Pt.71) 449; Niger Progress Ltd V. NEL Corp. (1989) 3 NWLR (Pt.107) 68; Ojokolobo V. Alamu (1987) 3 NWLR (Pt.61) 377; Savannah Bank V. Ajilo(1987) 2 NWLR (Pt.57) 421; Adisa V. Oyinwola (2000) 10 NWLR (Pt.674) 116; Corporate Ideal Insurance Ltd V. Ajaokuta Steel Company Ltd (2014) 7 NWLR (Pt.1405) 165 @ p. 193.

It was also submitted that the parties were ad idem that the Respondent was validly married to another person under the Marriage Act before his purported subsequent marriage to the Appellant and since in law facts admitted need no further proof, the Court below was right to make such finding as fact and to nullify the said marriage between the parties and contended that the position under common law for holding a subsequent marriage voidable on the basis of a prior subsisting marriage being to preserve public policy and public morality is untenable and inapplicable under the Marriage Act and the Matrimonial Causes Act and urged the Court to hold that in Nigeria there is no provision under law that makes a subsequent marriage to a person previously married either under the Act or Customary law voidable at the instance of an innocent party. Counsel relied on Hauwa Ubudu V. Bulama Abdul-Razak (2001) 7 NWLR (Pt.713) 669; NIDB V. Olalomi Industries Ltd (2002) 5 NWLR (Pt.761) 532.

It was further submitted that in law, no Court can look beyond the letters of a statute to uncover its spirit when the Statute is clear and unambiguous other than give it, it’s clear and literal meaning as anything otherwise would amount to going on a voyage of discovery and contended that when by a written law, a subsequent marriage is adjudge invalid, null and void, the effect is that such a marriage is illegal, of no value and never existed ab initio in the eyes of the law and urged the Court to so hold and to affirm the judgment of the Court below and to dismiss the appeal for lacking in merit. Counsel referred to Section 33(1) Marriage Act and Section 3(1) (a) Matrimonial Causes Act; Blacks law Dictionary, Tenth Edition by Bryan A. Garner, @ P. 1235 and relied on Ojokolobo V. Alamu (1987) 3 NWLR (Pt.61) 377 @ p. 402; Cotecna Int’l Ltd V. Churchgate (Nig) Ltd (2010) 18 NWLR (Pt.1225) 346; Ndoma-Egba V. Chukwuogor (2004) 6 NWLR (Pt. 869) 382; Moses Oghnerume Taiga vs. Nneka Mercy Moses-Taiga (2012) 10 NWLR (Pt.1308) 219 @ p. 251; Nkiru Amobi V. Mrs. Grace Nzegwu & 2 Ors (2014) 2 NWLR (Pt.1392) 510 @ p. 551; Nanna V. Nanna (2006) 3 NWLR (Pt.966) 1.

It was also further submitted that though the Court below having declared the marriage between the parties as null and void had still proceeded to issue a Decree Nisi to become absolute in three months, which was an error, but such an error does not affect the correct decision of the Court below as the Appellant was not misled and it was also not perverse and contended that they are in the circumstances and at the best ancillary Orders of Court below and urged the Court to hold that on the proved facts only an order of nullity of the said marriage can be made by the Court below since the said marriage was not merely voidable but void in law. Counsel referred to Sections 5(1)(a) (d) and Section 38 of the Matrimonial Causes Act.

It was further submitted that to declare a void marriage as merely voidable at the instance of the Appellant is to call upon the Court to give effect to an ex facie illegally and contended that in law where a Statute declares a transaction between parties not only void ab initio but imposes sanctions for its violation, such a transaction is illegal ab initio and the Court has a duty not to enforce such transaction under the latin maxim “exturpi causa non oritor actio” and contended that by Section 39 of the Marriage Act, a penalty of five years imprisonment is imposed on a person who being unmarried goes through a marriage ceremony under the Act with a person whom he/she knows to be married to another person and urged the Court to hold that this Court has the powers under Section 16 of the Court of Appeal Act, LFN 2004 to and should expunge the ancillary Orders of the Court below. Counsel relied on Mrs. Nkiru Amobi V. Grace Nzegwu & 2 Ors (2014) 2 NWLR (Pt.1392) 510.

On issue two, learned counsel for the Respondent had submitted that where a provision of a gift is hinged on an exfacie illegal act or consideration flowing from what the Statute terms an illegality with a punishment prescribed by law for its breach, such a promise or consideration cannot be enforce by any Court in Nigeria on the maxim ex turpi causa non oritur actio, and contended that the Respondent’s Petition was presented to void his marriage with the Appellant on the grounds of nullity having been and still married to another person under customary law in 1975 and under the Marriage Act on 17/6/2011 and urged the Court to hold that in law a gift of House No. 1, Calvin Street, off Benin Technical College, Benin City, which is denied by the Respondent, as consideration for entering into marriage with the Respondent though the Appellant knew that the Respondent had a wife and grown up children was not proved as no such evidence was led by the Appellant as was rightly held by the Court below, which at any rate had no such jurisdiction to determine such a claim in a matrimonial cause and to affirm the finding of the Court below and to dismiss the appeal. Counsel relied on Tukur V. Government of Gongola State (1989) 4 NWLR (Pt.117) 517; AG. Kwara State V. Olawale (1993) 1 NWLR (Pt.272) 645; Isaac Obiuweubi V. CBN (2011) 7 NWLR (Pt.1247) 465; Goldmark (Nig) Ltd V. Ibafon Co.(2012) 10 NWLR (Pt.1308)291; AG. Federation V. AG. Lagos State (2017) 8 NWLR (Pt.1566)20; Chief Rita Lori Ogbebor & Ors V. INEC & Ors (2018) 6 NWLR (Pt.1614) 1 @ p. 21; George V. Dominion Flour Mills (1963) 1 SCNCR 177; Knight Frank and Rutley (Nig) Ltd V. Kano State (1998) 7NWLR (Pt.556) 1; Akinyemi V. Gov. Oyo State (2003) FWLR (Pt.140) 1821 @ p. 1834.

It was further submitted that the Appellant is not entitled to all or any of her claims in the Cross Petition against the Respondent as a result of the consequences of the illegality of the marriage on which it was based and contended that in law no Court would come to the assistance of any party to an illegal contract who wishes to enforce it and urged the Court to so hold and to affirm the judgment of the Court below and dismiss the appeal for lacking in merit. Counsel relied on Olowu V. Building Stock Ltd (2018) 1 NWLR (Pt.1601) 343 @ pp. 394 – 396.

APPELLANT’S COUNSEL REPLY SUBMISSIONS
In his reply, learned counsel for the Appellant virtually reiterated his earlier submissions and had further submitted that neither the Marriage Act nor the Matrimonial Causes Act 1970 was intended by their framers to be used as instrument or vehicle for the perpetration of fraud and to defeat the general purpose of making law and contended that any interpretation of these statutes in whatever manner that finally fuels the vehicle of fraud is an interpretation that defeats the intention of the Legislature and therefore, ultra- vires the powers of the Court and urged the Court to hold that from the facts and circumstance of this case, it is clear that upholding the letters of the Statutes concerned without considering the spirit behind the letters as the Respondent has invited this Court to do, will not meet the legislative intention of the draftsman but would ultimately lead to absurdity not contemplated by the law maker, the result of which would also defeat the purpose of law making, namely: to promote peace, order and good government. Counsel referred to Section 4 (2) and (3) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and relied on AG. Lagos State V. AG. Federation (2014) 9 N.W.L.R (Pt.1412) 217 @ p. 236; Abubakar & 2 Ors V. Yar’Adua & 13 Ors (2008) 12 S.C (Pt.II) 1@ p. 236; Udolisa V. Awanosike (1973) ECSLR 653; Obijiaku V. Offiah (1995) 7 NWLR (Pt.409) 510 @ p. 520.

RESOLUTION OF ISSUES ONE AND TWO
My Lords, the resolution of the issues in this appeal is not, in my view, so much of whether the Marriage entered into between the Appellant and the Respondent on 13/8/2011 was void or voidable, as it appears to me that on the clear position of the law, the said marriage contracted between the Appellant and the Respondent at the time there was and still is a subsisting marriage between the Respondent and one Elizabeth Tongo under both the Benin Native law in 1975 and under the Marriage Act on 17/7/2011 was void, but rather at whose instance should the said marriage be declared void by the Court below?

Now, by the combined effect of Sections 33(1) and 35 Marriage Act, Cap M7 Laws of the Federation, 2004 and Section 3(1) (a) Matrimonial Causes Act, Cap M7, laws of the Federation of Nigeria, 2004, the marriage entered into between the parties was void in the circumstances in which at the time of the said marriage one of the parties to the said marriage, that is the Respondent, was already legally married to another person and that marriage, on the unchallenged evidence before the Court below, had not been dissolved but is still valid and subsisting.
So, in law, does it require any of the parties to the said marriage to go to before the Court below in order to declare the said marriage a nullity? Furthermore, in the circumstances of the pleadings and evidence led by the parties before the Court below as in the Record of Appeal, who as between the Respondent and the Appellant should in law and good conscience be the person at whose instance the said marriage contracted between them on 13/8/201, though already void ab initio, should be liable to be declared void and nullified by the Court below? These, in my view, are the real crux of this appeal. So, from the pleadings and evidence as to the circumstances surrounding and leading the void marriage between the parties and the roles played by each of them coupled with the knowledge of culpability attributable to each of them, as between the Appellant and the Respondent, who in law, ought to be the person at whose instance the said null marriage should be formally, if need be at all, be declared null and voided by the Court below?

At the trial before the Court below, while the Respondent testified on his own behalf and tendered some documents admitted in evidence as Exhibit A and B and closed his case, the Appellant testified for herself and called one additional witness and tendered several documents admitted in evidence as Exhibits and closed her case.

On 11/2/2014, the Respondent testified on his behalf and stated that he knows one Elizabeth Tongo who is his wife and that he got married to her under the Marriage Act on 17/7/2011 and was issued a Marriage Certificate, which was admitted in evidence as Exhibit A. He also stated that prior to the marriage under the Marriage Act to Mrs Elizabeth Tongo on 17/7/2011, he was already married to her under the Bini Native Law and Custom in 1975 and has remained married to her and living together with her till date. He stated that he also knows the Appellant, as Evangelist Idubor now Mary Tongo and that he got married to her on 13/8/11 at the Marriage Registry at the Oredo Local Government Council and they were issued a Marriage Certificate, which was admitted in evidence as Exhibit B. He further stated that the original of Marriage Certificate in Exhibit B was with the Appellant who had refused to release same to him and he had to get a Certified True Copy of it from the Marriage Registry for his use in the proceedings before the Court below. He then prayed the Court below to grant his reliefs in the Petition for nullification of the marriage entered into on 13/8/2011 between him and the Appellant and closed his case. This was the entirety of the evidence of the Respondent, despite the copious averments in his pleadings on the facts and circumstances leading to the marriage between him and the Appellant. See pages 83 – 84 of the Record of Appeal.

On her part, the Appellant testified and called one Ayo Idubor, who testified as DW2. The Respondent approached and proposed marriage to the Appellant as a single person and the Appellant accepted and on 13/8/2011, after other marriage rites including the introductions, they got married at the Oredo Marriage Registry and became husband and wife. At the Marriage Registry, they were given a list, which the Respondent paid for the registration and the list was admitted in evidence as Exhibits C1 and C2, while the Notice of Marriage issued by the Registrar was admitted in evidence as Exhibit D. They were issued with a Marriage Certificate and the photographs taken at the marriage ceremony were admitted in evidence as Exhibits D1 – D10, while photographs taken at their other ceremonies were admitted in evidence as Exhibits E1-E12. Invitation Card for the marriage was admitted in evidence as Exhibit ‘F’. The Appellant maintained that the Respondent never informed her that he had a wife, which information was confirmed by his brother that the Respondent had no wife. She denied using any spiritual influence over him leading to the marriage between them, though he was a member of her church.

She recalled that on 17/7/2011, she attended a marriage along with her husband, the Respondent and took excuse from him and went to attend her Church Harvest. During proposal, the Respondent promised to give her a land and to build a Cathedral for her Church but was yet to fulfill his promise. However, he gave her the house she is presently living in at Calvin Street as a gift for marrying him in the presence of her daughter, Dorothy and one Felix Tongo by giving the keys to the said bungalow to her and that She had series of miscarriages for the Respondent because of beating by his children but she does not want the Court to dissolve the marriage. She was thoroughly cross examined and she maintained that she was not aware that the marriage ceremony of 17/7/2011 was in respect of Elizabeth Tongo and that it was not true that the Respondent was married to Elizabeth under Native Law. At the close of her evidence, DW2 also testified in line with the averments in her pleadings and was also thoroughly cross examined. See pages 85 – 87 88 – 89 of the Record of Appeal.

Now, it was on the strength of the pleadings and the above pieces of evidence, both oral and documentary as led by the parties that the Court below had in its judgment delivered on 19/9/2016, while finding for the Respondent against the Appellant, had held inter alia as follows:
“…The sole issue for determination is whether there is a valid marriage between the Petitioner and Respondent. The Petitioner averred that he married the Respondent/Cross Petitioner on the 13/8/2011, prior to this marriage, he was married to Elizabeth Tongo under Benin Native Law and Custom in 1975 which marriage was solemnized at the United Christ Redemption Church (Cathedral) Benin City on 17/7/2011… The Respondent/Cross Petitioner averred that the Petitioner informed her that he was previously married under native law and custom, and the marriage was dissolved which was confirmed to her by the Okaigbe (Head) of the family. The Respondent/Cross Petitioner did not lead evidence in support of this fact that the marriage between the Petitioner and Elizabeth Tongo under native law and custom was dissolved.…I find and hold that there is a previous marriage between the Petitioner and Elizabeth Tongo… The Respondent/Cross Petitioner did not put before Court evidence that she is in possession of title documents to the property. Her evidence and that of her witness is that the Petitioner handed over the keys of the property to her. This does not imply that the house was given to her by an implied contract or agreement to establish a legal or equitable right. The Matrimonial Causes Act did not envisage a scenario whereby a marriage that is a nullity would confer rights on either party to benefit under an act that is null and void ab initio… I find that the Respondent/Cross Petitioner is not entitled to any reliefs sought in her answer and cross petition… Having said the foregoing, I find and hold that the marriage solemnized between the Petitioner and Respondent/Cross Petitioner is a nullity.” See pages 111 – 123 of the Record of Appeal. I bear in mind in law the primary duty of evaluating, reviewing and ascribing probative value and relative weight to the evidence as led by the parties is that of the trial Court. It is thus the duty of the Court below not only to merely review or restate the evidence led before it by the Parties but to critically appraise and evaluate it in the light of the issues of facts as disclosed and joined by the parties and in the course of doing so determine which evidence is relevant or admissible or credible or incredible and which weight to attach to the evidence. Consequently, once a trial Court had carried out this primary duty correctly and come to a right conclusion and sound decision in its judgment that is the end of the matter as no appellate Court worth its name and honor would interfere where the conclusion reached by the trial Court was right and its decision sound on the evidence as led before it. See TSA Industries Ltd. V. Kema Investments Ltd. (2002) 2 NWLR (Pt. 964) 300. See also Agbomeji V. Bakare (1998) 9 NWLR (Pt. 564) 1; Okada Airlines Ltd. V. FAAN (2015) 1 NWLR (Pt. 1439) 1@ p. 23.
It is thus the law that it is only when a trial Court had not carried out its primary duty correctly or shrieked from its responsibility to do so or had reached wrong conclusions not flowing from the admitted evidence before it or has misapplied the relevant principles of law to the established facts before it and had in all these instances occasioned a miscarriage of justice that an appellate Court will be duty bound to interfere to re-evaluate the evidence on the printed record, particularly in circumstances not involving the credibility of witnesses to make proper findings as justified by the evidence on the printed record. See Obajimi V. Adeobi (2008) 3 NWLR (Pt. 1075) 1 @ p. 19. See also Olonade V. Sowemimo (2014) 9 SCM 106 @p. 121; CSS Bookshop Ltd. V. The Regd. Trustees Muslim Community in Rivers State (2006) 4 SCM 310; Mogaji V. Odofin (1978) 4 SC 91; Ojokolobo V. Alamu (1998) 9 NWLR (Pt. 565) 225; Guardian Newspaper Ltd. V. Rev. Ajeh (2011) 10 NWLR (Pt. 1256) 574; Onwuka V. Ediala (1989) 1 NWLR (Pt. 96) 182; Nwoti V. Mbonu (2012) QRR 53, Aregbesola V. Olagunsoye (2011) 9 NWLR (Pt. 1253) 458; Bida V. Abubakar (2011) 5 NWLR (Pt. 144) 384; Mini Lodge Ltd. v. Ngei (2010) All FWLR (Pt. 506) 1806.
An appellate Court would therefore, readily interfere to re-evaluate the evidence in the printed record if is shown that the findings or decisions of the trial Court was perverse in that the conclusion drawn from the proved facts does not flow there from or runs contrary to such proved facts. However, it is not the law that a judgment of a Court is bound to be reversed on account of every error found in it but rather the law is that an error that will lead to a reversal of the judgment of a Court must be one that is substantial and had caused a miscarriage of justice. See Oladele V. Aromolaran II (1996) 6 NWLR (Pt. 453) 180. See also NBC Ltd. V. Olarenwaju (2007) 5 NWLR (Pt. 1027) 255; Okada Airlines Ltd. V. FAAN (Supra) @p. 22; Owor V. Christopher (2010) All FWLR (Pt. 511) 962; Sogbamu V. Odunaiya(2013) AII FWLR (Pt. 700) 1247.

The evidence before the Court below from the Respondent did not disclose any of the facts and circumstances leading to the marriage entered into between him and the Appellant as he told the Court below was that he was validly married to another woman on 17/7/2011 before he proceeded to enter into yet another marriage with the Appellant on 13/8/2011. Incidentally, it was he who tendered both Marriage Certificates in evidence as Exhibits A and B respectively before the Court below. On the other hand, the Appellant gave evidence of the facts and circumstances surrounding and leading to the marriage with the Respondent on 13/8/2011 and maintained that the Respondent approached her as a single person and sought her hand in marriage and that his status as a single person was confirmed to her by his own brother.

On the state of the facts and circumstances and in the absence of any evidence from the Respondent, I find the evidence of the Appellant as unchallenged and find as fact that the Respondent led the Appellant into the said marriage on the basis that he was a single person. I believe the Appellant that she was never aware that the Respondent was married at the time he approached her for her hand in marriage. I therefore, do not find anything wrong in the Appellant accepting the proposal of marriage by the Respondent.

I therefore agree with the learned counsel for the Appellant that the Appellant celebrated the marriage with the Respondent, a man she was made to believe was single and unmarried but who had turned around to allege the existence of a prior marriage to some other person. On the totality of evidence, it seems clear to me that this was a schemes orchestrated by the Respondent to have his way with the Appellant under a bogus marriage and then turn round, as allowed by law, to vilify the marriage and have an escape route out of it to the detriment and embarrassment of the Appellant.

On the proved facts, by the credible and unchallenged evidence of the Appellant and her daughter DW2, it does appear to me the whole conduct of the Respondent was directed and targeted towards deceitfully and wrongfully taking undue advantage of the Appellant with the very evil intention of setting up his wrong doings as a ground to avoid honouring his commitments to the Appellant, after enjoying all the ancillary benefits of marriage offered by the Appellant to her detriments, including loss of several pregnancies and general harassment by his children.

I think the Respondent from the space evidence led by him, which was so fallow and shallow and did not answer any of the evidence led by the Appellant, was merely seeking to take advantage of his wrongdoing and setting up his criminality as a shield against the Appellant. In law, the Respondent cannot and should not be allowed or indulged as the Court below regrettably did even without evaluating the unchallenged and uncontroverted evidence of the Appellant, to set up his willful wrongdoing constituting a crime as a ground to invalidate the said marriage at his instance. See Sections 45, 46 and 47 of the Marriage Act.
In Ibekwe V. Maduka (1995) 4 NWLR (Pt.392)716, it was stated inter alia thus:
“It is morally despicable for a person who has benefited from an agreement to turn around and say that the agreement is null and void. No Court of law will allow a person to benefit from his own wrongdoing.”
Also in Mohammed V. Mohammed (2012) 11 NWLR (Pt. 1310) 1 @ pp. 42-43, it was also stated inter alia thus:
“Where a party entered into an agreement with his eyes open and received consideration which he never returned to the other contracting party, equity will come to stop him from retracting from the agreement. He cannot at that stage, having benefited, refuse to give consideration to the other party…..”
See also Okafor V. Okafor (2002) FWLR (Pt.120)1712 @ P. 1715.
I find that the Court below failed woefully to duly evaluate the evidence adduced before and thereby failed to take cognizance of the fact that the Appellant’s evidence was largely unchallenged and uncontradicted by the Respondent, in the first place did not even file a ‘Reply to the Cross-Petition’.
It seems clear to me and I so hold that had the Court below properly evaluated the evidence adduced before it, it would have found that the Appellant was a victim of the deceit by the Respondent and that at best the marriage entered into between the parties as in Exhibit B, which by virtue of Exhibit A was void, is one which ought to be nullified at the instance of the Appellant and not at the instance of the offending party, who is the Respondent, as was erroneously done by the Court below.
Now, while the Respondent led basically no evidence save that he was previously and still presently married to Elizabeth Tongo before he also went ahead to contract a marriage with the Appellant, every other averments in his pleadings were not supported by any iota of evidence and are thus deemed abandoned since in law pleadings do not constitute evidence, yet the Court below peremptorily saw nothing useful at all in the copious evidence of the Appellant, much if not all of which pieces of evidence as led by the Appellant and her witness were unchallenged, cogent, credible as well as formidable and ought to have been believed by the Court below.
Here is a man, the Respondent, with no evidence before the Court below of any impediment to his senses as at the year 2011 when in under one month he contracted two marriages under the Marriage Act at the Marriage Registry to two different women, a fact on which he even based his Petition, and who with such a filthy and bigamous hands had the temerity to approach a Court of law, which as well a Court of Justice and equity to declare a marriage he had with his open eyes intentionally contracted with the full knowledge of its illegality. This is the kind of person who readily found the sympathy of the Court below merely because he admitted to have committed such illegality and grave infraction of the very same Marriage Act under which he sought the decree of nullification of his marriage to the Appellant.

In law, the Respondent cannot be allowed to benefit from his own wrong. See Soyinka V. Oni & Ors (2011) LPELR- 4096 (CA) @ p. 35 per Aboki JCA., (as he then was now JSC), where it was reiterated inter alia thus:
“This is a case of the application of the principle of “Ex Turpi causa Non Oritur Actio” this principle is to the effect that a party does not have a right to enforce performance of an agreement founded on the consideration that is contrary to public interest. It is a base cause, based on illegal transaction…No Court should give its aid to a cause tainted with crime.”
See alsoSolanke V. Abed & Anor (1962) WRNLR 92; Kasumu V. Baba Egbe 14 WACA 444; Motoh V. Motoh (2010) LPELR- 8643 (CA); The Queen V. Bartholomew Princewell (1963) NNLR 54 @ p. 55.
See further Section 370 of the Criminal Code, which provides as follows:
‘Any person who, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, is guilty of a felony, and is liable to imprisonment for seven years
This Section does not extend to any person whose marriage with such husband or wife has been dissolved or declared void by a Court of competent jurisdiction, nor to any person who contracts a marriage during the life of a former husband or wife, if such husband or wife, at the time of the subsequent marriage, shall have been absent from such person for the space of seven years, and shall not have been heard of by such person as being alive within that time.”
In law, a person such as the Respondent, of such slippery character, unashamed and unabashed by the very repulsive act of his and relying on the same repulsive and repugnant act to seek a relief from, not just a prayer house where confessions and redemption holds sway but, a Court of law, justice and equity where only those who come with clean hand would find succor, is not entitled in my finding to any favorable consideration, coupled with the total dearth of any relevant evidence in line with his copious pleading, but ought to have had his claims dismissed. See Green V. Green (2001) 45 WRN 90 @ P. 138, where Aniagolu, JSC, had opined inter alia thus:
“As a matter of General Principle of avoiding injustice and absurdity, a Court would not allow a person to profit by his own wrong. A person may not create a crisis in support of his interest.”
See also UBN Plc V. Ayodare & Sons (Nig.) Ltd(2007) 13 NWLR (1052) 567 @ p. 597, where Oguntade JSC., had stated inter alia thus:
“The question whether a contract declared void by statute is illegal has been considered in a number of cases which are referred to in Maxwell on the Interpretation of Statutes (10th Edition) at page 212 where the position is set out in this way:- It may, probably, be said that where a statute not only declares a contract void, but imposes a penalty for making it, it is not voidable merely. The penalty makes it illegal. In general, however, it would seem that where the enactment has relation only to the benefit of particular persons, the word ‘void ‘would be understood to as ‘voidable’ only at the election of the persons for whose protection the enactment was made and who are capable of protecting themselves…” On the evidence, while there is not a shred of doubt that the marriage contracted between the Appellant and the Respondent on 13/8/2011 was void abinitio by reason of the subsisting marriage between the Respondent and one Elizabeth Tongo, the person entitled to a decree of nullification of that illegal contraption called marriage is not and cannot in good conscience and in law be the Respondent but rather, in my finding the Appellant.
My Lords, I have already held firmly above that the decision of the Court below to dismiss the grant, the claims of the Respondent, whose conduct was so unconscionable and whose hands were so heavily soiled with bigamy was perverse, I find further that the person at whose instance the charade orchestrated by the Respondent can be dealt the death knell to which it so richly deserve is the Appellant.
At any rate, in the proved circumstances of this case, the only inviolable truth is that the marriage between the Appellant and Respondent was one dead on arrival and indeed never even existed in the eyes of the law, but as to at whose instance it could be so declared a nullity and nullified, the Appellant who is clearly the innocent party here stands on a better moral pedestal and legal basis to have this orchestrated charade of the Respondent declared both a nullity and formally and legally nullified by an order of Court.

I therefore, find the granting of the claims of the Respondent and the dismissal of all the claims of the Appellant, in the proved circumstances of this case, as very unfair and amounting clearly to a travesty of justice. I shall say no more on this!

I have taken time to evaluate the totality of the pleadings in so far as it was supported by evidence and I find that the Respondent failed to prove his claims and his Petition ought to have been dismissed while the Appellant’s claim for settlement, subject to assessment of damages, succeeds and ought to have been granted by the Court below while nullifying the entire charade orchestrated by the Respondent for being a nullity ab initio. Looking at the unchallenged evidence of the gravity of the embarrassment to which the Respondent had subjected the Appellant to and the further unchallenged evidence of several miscarriages caused the Appellant by acts attributable to the children of the Respondent coupled with the shame of having contracted a marriage which in the eyes of the law was and remains a nullity, I assess the Appellant’s entitlement to settlement from the Respondent for his orchestrated charade of an illegal marriage at the sum of N5,000,000.00.

My Lords, it is my view that the nullification of the void marriage between the parties but at the instance and pleasure of the Respondent is to allow him to profit not only from his own wrongful and illegal acts but also to destroy the remaining vestiges of morality in our society. It should not and ought not to be condoned by a Court of Law. On the contrary, while regrettably the Court below saw any redeeming features in the claims of the Respondent, I find the claims of the Respondent so distasteful, repulsive, immoral and unconscionable! However, as regards the various claims of the Appellant against the Respondent, I do not find any evidence to support any of the other claims of the Appellant, save the claim to some form of settlement from the Respondent, and would therefore affirm the findings to that effect by the Court below.

My Lords, the Court below was under a duty not only to properly evaluate and appraise the entirety of the evidence led by the parties and arrive at correct finding flowing therefrom but also to act as a Court of law, justice and equity, which it had failed woefully to do in its judgment appealed against by the Appellant. Thus, a failure to do so would be fatal to the judgment of the Court below, more so where such failure results into a perverse finding. See Ogbe V. Asade (2009) LPELR 2275 – (SC).

In the circumstances therefore, I hereby partly resolve issues one and two in favor of the Appellant against the Respondent and hold firmly that the Court below was in grave error when it granted the Claims of the Respondent while dismissing in its entirety the Claims of the Appellant without due regards to the circumstances of the proved evidence before it.

On the whole therefore, and in the circumstances of the proved evidence of the Appellant, I hold that this Appeal has merit and ought to be allowed in part. Consequently, I hereby so allow it in part.

In the result, the judgment of the High Court of Edo State, Coram: G. O. Imadegbelo J., in Suit No. B/21D/2013: Elder Dr. Best G. A. Tongo V. Mrs. Mary Tongo, delivered on 19/9/2016, wherein all the Claims of the Appellant against the Respondent were dismissed and all the claims of the Respondent were granted against the Appellant is hereby set aside, while the Order of the Court below dismissing all the other claims of the Appellant, save the claim for lump settlement from the Respondent as well as the Order Decree Nisi nullifying the marriage contracted between the Appellant and the Respondent, is hereby affirmed.

Consequently, the claim of the Appellant against the Respondent for payment of a lump sum settlement is hereby granted, and it is hereby ordered as follows:
1. The sum of N5,000,000.00 only as damages by way of payment of lump sum settlement of the Appellant by the Respondent.
2. There shall be cost of N100,000.00 in favor of the Appellant against the Respondent.

MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I had a preview of the judgment of my learned brother, BIOBELE ABRAHAM GEORGEWILL, JCA just delivered. I agree with the decision of my learned brother and I abide with all the consequential orders made by him.

GABRIEL OMONIYI KOLAWOLE, J.C.A.: My learned brother, the HON. JUSTICE BIOBELE ABRAHAM GEORGEWILL JCA, afforded me with the draft of the lead judgment that was just delivered.

I am in agreement with the detailed analysis of the issues distilled in the appeal and the resolutions therein.

I agree that the lower Court led itself into the error of improper evaluation of the evidence adduced by the parties in the appeal, and had thereby arrived at a perverse conclusion which culminated into the judgment being appealed.
I too find the appeal meritorious and hereby allow it.
I abide with the consequential orders made as to costs.

Appearances:

ETOSA IGBINEMKARO, ESQ. For Appellant(s)

O. I. USUNOBUN, ESQ., with him, I. K. SALAMI, ESQ. For Respondent(s)