Frederick O. Negbenebor V. Eudora O. Negbenebor (1971)

LawGlobal-Hub Lead Judgment Report

SOWEMIMO, J.S.C.

In the originating summons suit M/3/66 filed by the applicant on 19th August, 1966, at the Benin High Court of the Mid-Western State, she prayed the court of the following reliefs:

(i) 100 monthly for her maintenance including rents from 1st October, 1965.

(ii) Maintenance (school fees, clothing and other necessaries) of the three infant children of the marriage as may be just.

(iii) That the respondent be ordered to pay to the Lagos University Teaching Hospital the sum of 370 due on the

hire-purchase of her car No. LH 3173.

(iv) and that he is further ordered to secure such payments.

The learned trial judge after considering the affidavits filed by the parties, and the oral evidence called by them found that the respondent had willfully neglected to maintain the applicant and the three children of the marriage on the basis of respondent’s acts of adultery and cruelty; having held that the respondent committed adultery with at least two women and treated the applicant and her three children in a manner amounting to cruelty.

On the claim for maintenance the learned trial judge based his assessment on the “assets” of the respondent and these were the value of a building, referred to as the Ikpoba House, as 6,000Pounds, 1,260Pounds (net salary), 350Pounds (savings) and 300Pounds “value” of private practice. The total of the assets therefore came to 7,910Pounds. He also found as a fact that the income or salary of the applicant was 456Pounds per annum. The learned judge on the basis of the assets of the respondent and the income of the applicant assessed the maintenance payable thus:

“Taking into account the applicant’s salary of 456Pounds per annum, one third of the joint income is 1,332Pounds.134d. This works out as roughly 112Pounds per month, which sum is still higher by 312Pounds than that being asked for by the applicant.

Employing the figure of 3110 as a guide and bearing in mind the order which I shall hereafter make as to the custody of the children, I order that the respondent do pay or cause to be paid to the applicant herein as from 2nd October, 1965 maintenance for herself during their joint lives until further order at the rate of 320Pounds per annum free of tax, the said sum to be payable monthly at the monthly rate of 360Pounds.”

He then proceeded to order that the respondent should have custody of the two older children and the applicant the youngest child. Another order was made for the maintenance of the youngest child which he fixed at 360Pounds per annum free of tax as from the 2nd October, 1965. The learned trial judge also made orders of payment of arrears of maintenance to the applicant in respect of herself and the child, for which she was granted custody, in the sums of 1,202Pounds and 390Pounds respectively for the period commencing 2nd October, 1965. The respondent was also ordered to refund to the Lagos University Teaching Hospital the sum of 320Pounds.

The respondent has appealed to this court. Nine grounds of appeal were by leave of the court filed in substitution for the one ground of appeal originally filed. At the hearing only five were actually argued. These were:

“2. The trial judge erred in law in basing the assessment of the appellant’s income on the value of his house when there was no evidence that the house was built from his earnings.