UZOWULU v. UZOWULU
(2020)LCN/15783(CA)
In The Court Of Appeal
(ENUGU JUDICIAL DIVISION)
On Monday, June 29, 2020
CA/E/295/2017
Before Our Lordships:
Ignatius IgweAgube Justice of the Court of Appeal
Joseph Olubunmi Kayode Oyewole Justice of the Court of Appeal
Abubakar Sadiq Umar Justice of the Court of Appeal
Between
(MRS.) CHINYERE UZOWULU APPELANT(S)
And
AFAM UZOWULU RESPONDENT(S)
RATIO:
THE ULTIMATE OBJECT OF A NOTICE OF APPEAL
The law is trite that the ultimate object of a notice of appeal is to convey to the Respondent and also to the Appellate Court the nature of the Appellant’s complaint against the judgment appealed against. The greater latitude or broader interpretation that must be accorded to decisions of customary Courts as admonished by the Supreme Court does not extend to rules guiding appellate practice and brief writing.
THE DECISION OF CUSTOMARY COURTS ON TECHNICAL GROUNDS
I am of the view that the decision of the Apex Court is for the sole purpose of preventing the slaying of decisions of customary Courts on technical grounds such as failure of the customary Court to adhere to some evidential principles or procedures. The Appellate Courts in this instance are therefore enjoined to consider whether such decisions are seen to accord with the view of persons of common sense completely devoid of legalistic principles. In a nutshell, an Appellate Court is enjoined not to set aside the decision of a customary Court even on the face of procedural defects.
ABUBAKAR SADIQ UMAR, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the Customary Court of Appeal sitting in Enugu delivered by Honourable Justice G. C. Nnamani, Honourable Justice C. A. B. Onaga and Honourable Justice P. A. Obayi on 18th December, 2015.
BRIEF STATEMENT OF FACTS
The Respondent on record approached the Nike Uno Customary Court with a petition seeking the dissolution of the customary marriage contracted with the Appellant. The Appellant not only refuted the claims of the Respondent as per the Petition but also filed a counter claim against the Respondent.
After the conclusion of hearing, the trial Court made the following orders:
“1. That the customary marriage between Mr. AfamUzowulu and Dr. (Mrs.) Chinyere Uzowulu is hereby dissolved with effect from today 24th June, 2014.
2. That the defendant takes custody of all the three children till they attain adulthood eighteen years.
3. That the Plaintiff pays to Chinyere through her account or through the Registrar of this Court monthly the sum of sixty Thousand Naira (N60,000) as feeding allowance not later than 2nd week of the new month.
4. That the payment allowance takes effect from July, 2014.
5. That the Plaintiff continues as promised in No. 22 (d) of his Claim.
6. That the Plaintiff shall defray medical bill of the three children in case of illness.
7. That the Plaintiff shall have access to the children in schools and churches.
8. That the Defendant vacates No. 3 Uzowulu Avenue, Trans-Ekulu, Enugu on or before 31st December, 2014.
Dissatisfied with the decision of the trial Court, the Appellant appealed to the Court below. The Court below in a unanimous decision delivered on the 18th day of December, 2015 dismissed the Appellant’s appeal hence a further appeal to this Court. The appeal to this Court was set in motion vide an undated Notice of Appeal filed on 14th January, 2016. The Appellant also filed an Amended Notice of Appeal dated 28th July, 2016 and filed on 12th August, 2016. The Appellant’s Appeal was argued on the Amended Notice of Appeal (supra).
In line with the Rules of this Court, the parties filed and exchanged their briefs of argument. The Appeal was heard on 10th June, 2020 wherein both counsel adopted their briefs and made oral adumbrations in respect of their postures in the determination of the appeal. However, in the course of writing judgment, I discovered that the Record is incomplete, therefore counsel were invited to furnish the Court with supplementary records. On 10th June, 2020, counsels submitted the additional record and re-adopt their briefs and the matter was reserved for judgment.
The Appellant’s Brief of Argument dated 12th November, 2018 and filed on 13th November, 2018 was deemed properly filed and served by an order of this Court made on 14th, November, 2018. The said Brief was settled by EKENNE IKE, ESQ. who at paragraph 3.00 of his Brief distilled two issues for the determination of this appeal to wit:
i. ”Whether the Lower Court (i.e.) the Customary Court of Appeal of Enugu State was right to have dismissed the appeal from Nike Uno Customary Court without evaluating the evidence of both parties in that Court arising from Grounds 1, 2, 3, 4, 5, 6, 8 and 10 of the amended Notice of Appeal.
ii. Whether a proper evaluation of the evidence of the parties in the Court of first instance by the Court below would have resulted in a judgments (sic) upholding the appeal grounds as seen in grounds 2, 4, 7 and 10 of the record of appeal.”
The Respondent’s Brief is dated 8th February, 2019 and filed on 11th February, 2019. The Brief was deemed properly filed and served by an Order of this Court made on 15th April, 2019. Same was settled by Dr. G. C. OGUAGHA who merely adopted the issues distilled by the Appellant.
ARGUMENTS AND SUBMISSIONS
On issue one and two, Counsel to the Appellant submitted that the lower Court, dwelling on technical grounds, struck out all the grounds of appeal except the omnibus ground and also all the issues for determination arising there from except for issue No. 6 which was salvaged by the omnibus ground. He submitted further that this technical approach by the Court below prevented it from properly evaluating the evidence led by the parties at the trial Court. He made heavy weather on the case of OLADAPO V. AKINSOWON (1975) WRNLR 215 and submitted that the Court below ought to have looked beyond technicalities to consider the substance of the matter with the aim of doing substantial justice.
Counsel submitted that there are several issues between the parties which the Court below failed to evaluate. Some of the issues according to counsel include whether the Respondent proved any ground for dissolution of the customary marriage with the Appellant and whether the Appellant led sufficient evidence in support of her counter claim comprising mainly of monetary claims from the Respondent which claims according to counsel were supported by documentary evidence. In conclusion, it is the submission of counsel that the Court below failed to evaluate the evidence of the parties in the trial Court and to vary or set aside the orders which are perverse and do not emanate from the evidence of the parties.
He therefore urged this Court to allow the appeal, set aside the judgment of the Court below dismissing the appeal from the Court of first instance and make an order remitting the appeal back to the Customary Court of Appeal for retrial.
In response to all the submissions and arguments canvassed by the Appellant, the Respondent committed pages 4 to 11 of the Respondent’s Brief in addressing the submissions and arguments of the Appellant. Counsel however concluded that it is clear that the Appellant is not interested in justice but out to buy more time to remain in occupation of her former matrimonial home which is the property of the Respondent, and from which she was ordered to vacate before 31st December, 2014 by the trial Court. He therefore urged this Court to dismiss the appeal for lacking in merit.
RESOLUTION OF ISSUES
I have read through the pages of the record of appeal before this Court and the adopted briefs of argument of counsel in support of their various contentions and postures in this appeal. The issues for determination canvassed respectively by the parties are well examined and considered. However, I am of the view that the issues formulated for determination by counsel to the Appellant and adopted by the Respondent can be condensed as one.
“Whether from the totality of the evidence placed before the trial Court, the Court below was right in its evaluation of the said evidence in dismissing the Appellant’s appeal?”
After a careful reading of the Appellant’s Amended Notice of Appeal and submissions and arguments as contained therein in the Appellant’s Brief of Argument, I am of the opinion that the substance of the Appellant’s compliant in this appeal is the failure of the Court below sitting in its appellate jurisdiction to properly evaluate the evidence led by the parties at the trial Court. The Appellant has also faulted the decision of the Court below for striking out most of the grounds of appeal and the issues emanating therefrom which according to the Appellant, beclouded the Court’s judgment from doing substantial justice.
It is on record that the Appellant at the Court below predicated her appeal on four grounds. It is also evident on the face of the record that out of these four grounds of appeal, the Appellant distilled six issues for the determination of the appeal.
After considering all the grounds of appeal vis-a-vis the issues distilled therefrom, the Court below struck out issues 1, 2, and 5 of the Appellant’s issues for determination because the said issues did not emanate from any of the grounds of appeal. Issues 3 and 4 were also struck out as they could not be accommodated under any of the Appellant’s grounds of appeal. The Appellant’s issue 6however survived and the Court instead of striking out the appeal for proliferation of issues as it noted at page 13 lines 1 – 4 of the Further Supplementary Record of appeal went further to consider the surviving issue.
The Appellant placed heavy reliance on the case of OLADAPO V AKINSOWON (Supra) wherein the Supreme Court admonished that greater latitude and broader interpretations must be accorded to decisions of customary Courts for the purpose of doing substantial justice between the parties. I am of the opinion that the reason for this is because customary Courts are majorly presided over by laymen with little or no exposure to legal principles or procedures. In consideration of this, the Supreme Court admonished that an Appellate Court should in the circumstance strive to get to the root of the decision of a customary Court to ascertain that substantial justice was done.
It is important to state that the Court below in its judgment at pages 16 – 17 of the Further Supplementary Record of appeal also adverted its mind to this admonition. However, this admonition which this Court is bound to follow too does not give an appellate Court the latitude to reopen a case or consider an issue that has not been appealed against or was not anchored on a particular ground of appeal.
The law is trite that the ultimate object of a notice of appeal is to convey to the Respondent and also to the Appellate Court the nature of the Appellant’s complaint against the judgment appealed against. The greater latitude or broader interpretation that must be accorded to decisions of customary Courts as admonished by the Supreme Court does not extend to rules guiding appellate practice and brief writing. I am of the view that the decision of the Apex Court is for the sole purpose of preventing the slaying of decisions of customary Courts on technical grounds such as failure of the customary Court to adhere to some evidential principles or procedures. The Appellate Courts in this instance are therefore enjoined to consider whether such decisions are seen to accord with the view of persons of common sense completely devoid of legalistic principles. In a nutshell, an Appellate Court is enjoined not to set aside the decision of a customary Court even on the face of procedural defects.
As I pointed out earlier, the Court below could have dismissed the appeal for proliferation of issues but in its unexpected magnanimity went ahead to carry out an overview of the case of the parties and the judgment of the trial Court based thereon. The Court in its decision invoked the provisions of Section 9 (1) of the Customary Court of Appeal Law No. 7 of 2005 to consider the issues raised by parties as if the proceedings had been instituted in the Customary Court of Appeal as the Court of first instance. The Court at page 16 of the Supplementary Record of appeal held thus:
“The surviving portions of this appeal, especially issue 6 can be accommodated under the commodious womb of the omnibus ground of appeal. I will under this carry out an overview of the case of the parties and the judgment of the trial Court based thereon. Section 9 (1) of the Customary Court of Appeal Law No. 7 of 2005 vests this Court with jurisdiction over the whole proceedings of a case as if the proceedings had been instituted in the Customary Court of Appeal as Court of first instance. Energized by this, I will, where appropriate, reevaluate evidence of parties bearing in mind that the lower Court was, after all, not presided over by men learned in law.”
Flowing from the excerpts of the decision of the Court below reproduced above, it is crystal clear that the Court still considered the issues raised by the Appellant under the omnibus ground of appeal; therefore I see no reason why the Appellant should cry foul on appeal to this Court that the Court below did not consider the issues raised by her.
Next is to decide whether from the totality of evidence adduced by the parties at the trial Court, the Court below was right to have dismissed the Appellant’s appeal for lacking in merit.
The Respondent who approached the Nike Uno Customary Court with a petition seeking the dissolution of the customary marriage contracted with the Appellant predicated his request for the dissolution of the customary marriage on extreme violence, uncontrollable temper, attempts to terminate his life, humiliation in the hands of policemen and that there was no love between himself and the Appellant. (See Page 5 of the record of appeal).
The Appellant is holding vehemently to the fact that the Respondent has failed to prove any ground for the dissolution of the customary marriage with her. I am of the firm view that there are no particular, strict or standardized grounds for dissolution of a customary marriage, howbeit, emphasis is placed on the fact that the marriage has failed.
The Court below averted its mind to this issue when it held at page 17 – 18 of the Supplementary record of appeal as follows:
“As aforesaid, the appellant did not challenge the judgment of the lower Court dissolving her marriage to the respondent. None of the grounds of appeal did. The order dissolving the marriage is therefore not part of this appeal. Which is only expected. This was one union, one marital misadventure, that seemed to question the wisdom of the creator in the ordination of the institution of the holy matrimony by the unbridled way the couple brisked, by the way they contrived and tirelessly worked against each other while the unfortunate marriage lasted, by the number of times they were at each other’s throats by the brutal way they pummeled each other in physical combat, making it difficult to believe that they ever locked loving in proactive embrace. It is equally suspicious if they ever sincerely called each other darling, honey, sweetie, or such endearing names considering how they vilify and utterly demonize each other. This saga of this impossible couple is better left for sociologist to research on. Meanwhile the respondent is on exile from his residential home. He is living in a hotel (albeit his own), fleeing, he alleges, from the squabbles, trouble and unbearable heat of the appellant. The appellant loves it that was and in fact prayed the lower Court for the maintenance of that incredible status quo. Since the lower Court has already thankfully put the couple asunder, my duty, like that of a morbid anatomist or clinical pathologist on a cadaver, is legal postmortem within the minimal confines of what is left of this appeal.”
The Appellant counsel has attacked the above finding and all I can infer is that the Appellant is opposed to the order of dissolution of the customary marriage contracted with the Respondent holding to the assertion that the Respondent failed to prove any ground for the dissolution of the marriage. Considering the circumstances of this case, the question that begs for answer is that what more does the Appellant want from the Respondent to show that he is no longer interested in the marriage between them? The Order for dissolution of marriage was made in the year 2014 by the trial Court, the decision which was affirmed by the Court below in the year 2015 and almost five years after, the Appellant is still holding on the fact that the Respondent did not prove that the marriage has broken down irretrievably.
The decision of the trial Court at page 38 of the record of appeal also adds credence to the point made by this Court above. The trial Court held at page 38 of the record as follows:
“The suit filed on 26th February, 2013 lasted for sixteen months. The Court intentionally allowed long adjournment thinking that frayed nerves will come down or that someone will apply to withdraw the suit for settlement out-of-Court, as none of it happened and as if it is very obvious they cannot stay peacefully under one roof, the best in the circumstance is to part ways;…”
If there was anything which ought to have been buried and forgotten long time ago is the customary marriage contracted between the parties. The marriage in my opinion has failed. The Court below might not have made particular reference(s) to the evidence led by the Appellant or the Respondent at the trial Court or what was done by who, which would have amounted to an evaluation of evidence as envisaged by the Appellant’s counsel, however the relevant excerpts of the decision of the Court below indicates that the Court was abreast of the substance of the appeal before it which is “whether the marriage between the parties had failed?” And if until this very moment, the parties have not mended the walls of animosity between them, an animosity which has lasted for about seven years or more, then I am also of the unflinching opinion that the marriage has failed irretrievably.
Another limb of the Appellant’s complaint is whether the Court below properly evaluated the evidence of the parties before dismissing the Appellant’s monetary counter claims. The Appellant claimed that she borrowed the Respondent a total sum of N5, 500,000 (Five Million Five Hundred Thousand Naira). The sum according to the Appellant was expended in the building of the Respondent’s house in the village and also for settling the medical bills of the son of the Respondent’s second wife. The Respondent in paragraph 8 and 9 of his Reply to the Statement of Defence and Counter-claims at pages 14 – 18 of the record of appeal denied the monetary claims of the Appellant.
In reviewing this issue, recourse must also be made to the decision of the Court below which is being appealed against. The Court below at pages 18 – 19 of the further supplementary record of appeal held as follows:
“Regarding the counterclaim of the appellant, it must be borne in mind that the appeal only relates to the sum of N5,500,000.00 (Five Million Five Hundred Thousand Naira) allegedly given as loan to the respondent by the appellant. See, ground 3 of the grounds of appeal and particulars.
The appellant alleged the said loan. The respondent denied it. Under cross examination at page 79 of the record of proceedings, the respondent testified that “it is not true she gave me money to complete my house in Oba. She was four years when I built my house in Oba.”
It is crystal clear on record that the Respondent under cross-examination at page 79 of the record of appeal refuted the claims of the Appellant regarding money claimed by her. In further consideration of this issue, the Court below also held at page 18 – 19 of the further Supplementary record as follows:
“Learned counsel to the appellant harped so much on the observation of the lower Court that the respondent’s counsel did not address it on the alleged loan of money and that “Court takes it that silence means consent”. This matter is neither here nor there. To start with, failure of counsel for the plaintiff to address the Court on any matter on evidence already adduced by the party did not extinguish the duty of the Court to consider such adduced evidence. Secondly, under the customary Court rules of Enugu State there is no provision for address of counsel. The lower Court also did not make any order regarding the loan after exhaustively reviewing the evidence of the parties and same was not proved. (Underlining mine)
The lower Court, as Court of first instance, watched the demeanor of the parties and arrived at the conclusion that these were contriving, lying litigants.”
Flowing from the hills of the above, I am of the opinion that the decision of the Court below is borne out of the record before it and I see no reason to distort the findings contained therein. The law is trite that the burden of proof lies on the party whose claim(s) will fail if no evidence is adduced. In essence, the burden of proof in civil actions, the initial burden of proof lies on the party against whom the Court would give judgment if the evidence were not produced on either side. See SECTION 131 OF THE EVIDENCE ACT, 2011 (as amended).
In the final analysis therefore, I resolve the sole issue distilled by this Court in favour of the Respondent and against the Appellant. I hereby affirm the decision of the Court below delivered by Honourable Justice G. C. Nnamani, Honourable Justice C. A. B. Onaga and Honourable Justice P. A. Obayi on 18th December, 2015. The consequential order as to the custody of the children of the dissolved marriage is also affirmed.
In all, this appeal is bereft of merit and is hereby dismissed. No order as to cost.
IGNATIUS IGWE AGUBE, J.C.A.: I have read in draft the Leading Judgment just delivered by my learned brother, ABUBAKAR SADIQ UMAR, JCA. I agree in its entirely with his reasoning and conclusion that the Appeal in question has failed and should be dismissed. It is accordingly and resoundingly dismissed by me too. I also abide by the consequential orders made in the said leading Judgment.
JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.: I have had the privilege of read the draft of the lead judgment just delivered herein by my learned brother ABUBAKAR SADIQ UMAR, JCA and I totally endorse the reasoning and conclusion therein.
I equally hold that the appeal lacks merit and I equally dismiss it.
I adopt the consequential orders in the lead judgment as mine.
Appearances:
EKENNE IKE, ESQ. For Appellant(s)
Dr. G. C. OGUAGHA For Respondent(s)
