Generic selectors
Exact matches only
Search in title
Search in content
Post Type Selectors
Home » Nigerian Cases » Court of Appeal » Prince Amah V. Mrs. Victoria Amah (2016) LLJR-CA

Prince Amah V. Mrs. Victoria Amah (2016) LLJR-CA

Prince Amah V. Mrs. Victoria Amah (2016)

LawGlobal-Hub Lead Judgment Report

IGNATIUS IGWE AGUBE, J.C.A.

 In the High Court of Abia State of Nigeria, in the Aba Judicial Division, Holden at Aba, the Appellant as Petitioner initiated a Petition dated 20th day of May, 2008 but filed on the 21st May, 2008 whereof he sought for the following Reliefs:
?I. A Decree of Dissolution of marriage between the Petitioner and the Respondent on the grounds and facts set out above and in particular that the marriage has broken down irretrievably.
?II. Such further Order or Orders as the Honourable Court may deem fit to make in the Records. See page 5 of the Records.

As for the facts relied upon by the Petitioner, as constituting the Grounds that the marriage had broken down irretrievably as stated as well as the reason for which cohabitation between the Petitioner/Appellant and Respondent had ceased, the Petitioner alleged that the Respondent has always behaved in such a manner that the Petitioner/Appellant found it intolerable to live with her in that since October, 2006, following the Respondent?s usual persistent nagging, quarreling and fighting e.g. the Respondent

1

threatened to kill the Petitioner by poisoning or other diabolical means, and making reference to the Petitioner as a stark illiterate, Furthermore:-
?1. The Respondent has behaved in such an intolerable way that the Petitioner cannot be expected to live with her.
?II. The marriage has been characterized by irreconcilable differences, which have lasted from the beginning of the marriage till now, and all efforts towards meaningful reconciliation by mutual family friends, respected dignitaries , intimate relations, proved most unsuccessful.
?III. The Respondent had been most unrepentantly and intransigently quarrelsome, disgraces the Petitioner?s friends and relations with her intolerable behaviors. She is also most unreasonable domineering, naggy, violently, cruel, highly cantankerous, evil tempered, fights and assaults the Petitioner regularly.
?IV. The Respondent regularly patronizes and consults Native Doctors and or Witch Doctors to prepare charms or other harmful concoctions have been hidden by her in Petitioner?s residence at the Village or mixed in Petitioner?s food, water, drinks, pomades,

2

clothes and other wears etc.
?V. The Respondent has no genuine love for the Petitioner and expresses this by constantly reminding the Petitioner that she is just managing him as they are not of the same class.
?VI. The Respondent has threatened openly on several occasions to kill/murder the Petitioner by poisoning or other diabolical means?. See page 4 of the Records.

The Petitioner also pleaded that he had not condoned or connived at the grounds specified above, and was not guilty of collusion in presenting the Petition and that he is an ardent Christian who had been responsible for the feeding, accommodation, upkeep; Medical expenses, etc and general welfare of the only child of the marriage then one year and two months who he Petitioner/Appellant conceded the Respondents should custody until she was three (3) years old.

The Petition was supported by a verifying Affidavit of three paragraphs deposed to by the Petitioner; Certificate Relisting to Reconciliation wherein it was disclosed/Certified by the legal Practitioner representing the Appellant as Petitioner that he had brought it to the knowledge and attention

3

of the Petitioner the provisions of the Matrimonial Causes Act relating to reconciliation of the parties to the marriage and approved marriage guidance organization reasonably available to assist in effecting a reconciliation between the Petitioner/Appellant and the Respondent being effected either or without the assistance of such an organization.

Also exhibited as accompanying the Petition, was the Marriage Certificate evidencing that on the 15th of April, 2006 the Petitioner/Appellant Brother Prince Ezesinachi Amah and Sister Victoria Egbo solemnized the marriage at the Faith Tabernacle Consecration, 191-195 Azikiwe Road, Aba, Abia State.

Upon being served with the Petition and other Originating Processes, the Respondent through her Counsel K. U. Awo Esq; filed an Answer to the Petition on the 16th of July, 2008 denying most of the allegations therein and asserted that the Petitioner after filing the Petition had refused to provide for his child and wife and she (the Respondent) had made all strenuous efforts at reconciliation and was rebuffed by the Petitioner/Appellant who refused the Respondent any chance and Respondent did not want the marriage

4

which was then two (2) years and three (3) months before the Petition was filed; to be dissolved. She then sought for an Order dismissing the Petition for non-compliance with the Matrimonial Causes Act. (See pages 6 ? 11 of the Records). The Respondent also filed a Verifying Affidavit to the Answer to the Petition at page 12 of the Records.

In a Motion on Notice dated and filed on the 17th day of July, 2008, the Respondent through her Counsel sought for an Order striking out the Suit No. A/10D/2008 PRINCE AMAH VS. VICTORIA AMAH for being incompetent And For Lack of Jurisdiction on the grounds that:
(a) No. statutory Certificate of marriage was attached and/or annexed to the Petition.
(b) The Honourable Court in consequence of the above lacked the jurisdiction to entertain the Petition.
In support of the motion the Respondent deposed to an Affidavit of 5 paragraphs. (See pages 13 to 15 of the Records).

Subsequently, the Respondent through Chief Ogbonna O. Igwenyi Originated a Cross Petition dated 24th April, 2009 and filed same date whereof she sought for the dissolution of the marriage on the grounds stated in pages 20 -21 of the

5

Records as well as the following Reliefs:-
?(1). An Order mandating the Petitioner to provide for the health, shelter and educational needs and advancement of the infant child of the marriage, Miss Oluchukwu Amah; through the Respondent, her natural mother by paying her school fees, buying clothes, feeding and securing the accommodation at No. 24 Agbaeze Street, Aba or a three bed room flat any other neighborhood street in Aba until she completes her tertiary education and secures job in the private or Public Sector. In the alternative the sum of N5,000,000.00 (Five Million Naira) endowment fund for the general upkeep of the child with any reputable financial institution to be managed by the Respondent.
?II. An Order for maintenance of the Respondent with a monthly allowance of N5,000.00 (Five Thousand Naira) until she remarries.
In the alternative, the sum of N5,000,000.00 (Five Million Naira) cumulative for her maintenance as she is a nursing mother.
?III. An Order for N2,000, 000.00 (Two Million Naira) general damages against the Petitioner for adultery and intentional infliction of emotional distress.
?IV.

6

An Order dividing the family estate at Umuesike Street, Aba by Amuhie Road Into two equal parts between the Petitioner and the Respondent. In the alternative the sum of N5,000,000.00 (Five Million Naira) as share of the Respondent in the said estate.
?V. An Order for the release of the following properties of the Respondent:
1. One biggest size Ox Fan. (2); One biggest size of Mouka foam; (3) 5 sets of big Pots; 4. One family bed; 5. One big mortar and Pestle; 6. Two sets of plastic bathing equipment for children; 7. Two stainless basin (big and small); 8. One big lamp; 9. Two sets of 16 Piece Stoneware dinner set; 10. Two sets of 20 piece of stoneware dinner set; 11. One set of 36 Emel Magic Dinner set. 12. A set of Jango glass Cup; 13. A set of non-stick TV8? 10 12? frying Pans.; 14. Six sets of different Cooler; 15. A frying Pan and kettle and cup being properties given to the Respondent by her parents as marriage gifts which is now in the custody of the Petitioner in his village.? See pages 16 ? 22 of the Records.

On the 8th day of October, 2009; when the case was called for the first time the parties

7

were in Court but the Petitioner was unrepresented. K. U. Eze Esq who however appeared for the Respondent asked for a date for the hearing of the Petition whereof the Court adjourned to 14/12/2009 for definite hearing.

On the 25th day of February, 2010, the Petitioner filed his Reply to the Cross ? Petition and it was not until the 3rd day of March, 2010 that the case came up again with parties and their respective learned Counsel present. There upon the Court ordered the learned Counsel for the parties to file their respective written Addresses and while Madubuike Chijoke Esq for the Petitioner sought for 14 days to so file and K. J. Anya asked for Seven (7) days the Court so granted them the days as sought and adjourned the case to the 16th of April, 2010 for adoption of Written Addresses.

?On that 16th of April, 2010, the written Addresses were not adopted as the learned Counsel for the Respondent/Cross- Appellant sought for a date to file a Reply to the written Address of the Petitioner/Cross- Respondent and the case was again adjourned to the 17th of May, 2010 for adoption of the written Addresses. The Cross-Petitioner in eventually filed

8

her Reply to the Address of the Petitioner on the 14th of day of May, 2010, and on the 17th day of May, 2010, Mr. O. A. Nwosu, Esq for Petitioner/Cross-Respondent and O. O. Igwenyi Esq; for Respondent/Cross-Appellant adopted their respective written Addresses and the Court adjourned the case for Judgment on the 15th of July, 2010 but it was not until the 16th day of December, 2010 that the learned Trial Judge, N. C. Otti, I; delivered the Judgment in favour of the Respondent/Cross-Appellant and apart from granting the parties the dissolution of the marriage as sought as they both were ad idem that the marriage had broken irretrievably, His Lordship also granted the Cross-Petitioner the custody of the only child of the marriage but added a rider that the Petitioner/Cross-Respondent be allowed unrestricted/unfettered access to the child as well as those other wishes with other issues.

As regards the Orders/Reliefs sought by the Cross-Petitioner/Respondent in paragraph 10 (A) (i) ? (iii) of the Cross-Petitioner?s Petition, he noted that these were granted as above stated but that as regards those Reliefs in Paragraph 10(B)(i) ? (vi) for

9

mandatory order for provision of amenities, accommodation or in the alternative the sum of N5,000,000.00 (Five Million) endowment fund for the general upkeep of the child; Two Million Naira (N2,000,000.00) general damages against the Petitioner/Cross-Respondent for adultery and intentional infliction of emotional distress; division of family estate at Aba or N5,000,000.00 (Five Million Naira) in the alternative and order for release of the property listed in paragraph 10(B) (VI) of the Cross-Petition, the learned Trial Judge held that the Petitioner is to provide for the amenities as listed in paragraph 10(B)(i) but in the alternative if the Petitioner/Cross?Respondent considers it best to make/raise an endowment fund for the general upkeep of the child with any reputable financial institute to be managed by the Respondent, he is to deposit into that fund the sum of N3 Million Naira.

As for the maintenance of the Cross-Petitioner, the learned Trial Judge further held that the Petitioner/Cross-Respondent is to pay the Cross-Petitioner a monthly allowance of N10,000.00 or a lump sum of N1 Million Naira if he so prefers

?On the damages claimed by

10

the Cross-Appellant for adultery, the Court awarded the sum of N50, 000.00 (Fifty Thousand Naira) there for and in respect of sharing the family property (Estate) at Umuesike Street Aba by Amuhie Road into two equal parts between the parties, the learned trial Judge held once again that if the Petitioner/Cross-Respondent would prefer not to share the estate with Respondent/Cross-Appellant, then the Petition/Cross-Respondent shall payoff the Cross-Appellant the sum of N1 Million as her share of the property. See pages 42 ? 46 of the Records.

In conclusion, the learned Trial Judge at page 46 of the Records held thus:
?In the final analysis, the Cross-Petitioner proved her case and the orders of Court in respect of Paragraphs 10(B) (i), (ii), (iii) and (iv) are as stated. She also is entitled to the release of the properties listed in 10(B) (Vi) and which are not already in her custody. Judgment therefore is in favour of Cross-Petitioner in respect of her claims in paragraph 10(B), as particularized by Court in this Judgment?.

Dissatisfied with the above Judgment the Petitioner appealed by a Notice of Appeal dated 1st of March,

11

2011 and filed same date with 6 (Six) Grounds. Below are the Grounds of Appeal as couched without their respective particulars.
GROUNDS OF APPEAL
?A. ERROR IN LAW
The leaned Trial Judge erred in law in misplacing the onus of proof in the Cross-Petitioner and awarding to the Respondent the sum of Three Million Naira (N3M) against the Appellant without any supporting evidence and after he had observed that the Respondent did not provide him with enough proof and materials to make a fair assessment of the amount of money to award in that head of claim.
?B. ERROR OF LAW
The learned Trial Judge erred in law in entering Judgment in the Counter-Petition in favour of the Respondent/Counter-Petitioner when it is obvious that the Respondent, abandoned her pleadings and did not lead evidence in proof of the averments therein.
?C. ERROR OF LAW:
The learned Trial Judge erred in law in ignoring the parties pleadings or taking oral and or affidavit evidence of the parties before deciding that the parties own a joint property which he ordered to be shared equally or the Appellant pay to the Respondent the sum of N1 Million,

12

in lieu of the same.
?D. ERROR OF LAW
The learned Trial Judge erred in law in treating the parties pleadings as their evidence and failing to take or hear parties evidence in proof of their pleadings before he entered Judgment in the Suit, thereby denying the Appellant of his right to fair hearing.
?E ERROR OF LAW
The learned Trial Judge erred in law in misplacing the onus of proof in the Cross-Petition and awarding to the Respondent the sum of One Million Naira (N1M) out of N3 Million she claimed against the Appellant for her own maintenance without any supporting evidence and after he had stated that the Respondent did not provide him with enough proof and material to make a fair assessment of the amount of maintenance to be awarded to her.
?F. ERROR OF LAW
The learned Trial Judge erred in law in awarding maintenance in the Cross-Petition arbitrarily without considering the judicially approved provisions of the law and the factors necessary for such award?.
?RELIEFS SOUGHT FROM THE COURT OF APPEAL:
An Order allowing this Appeal and setting aside the Judgment of the High Court of 16/12/2010

13

as it relates to the Cross-Petition?.

Following the transmission of the Records and the entry of the Appeal hereto, the respective learned Counsel for each of the parties filed and exchanged their Briefs of Argument. C. C. Nwanegbo Esq who settled the Appellant?s Brief dated 17th October, 2013 and filed same date but deemed duly filed and served by the Order of this Court granted the Appellant on 14th of April, 2015; distilled five (5) Issues for determination hereunder reproduced as follows:-
?ISSUES FOR DETERMINATION?
?1. Whether the Honourable Court was correct in law in ignoring the admitted facts in the Respondent?s pleading and failing to take any evidence whatsoever before deciding that the property at Umuesike Street Aba by Amuhie Road was a family or joint property and Ordered that same should be shared equally between the feuding parties? DISTILLED FROM GROUND C.
?2. Whether the Honourable Court was right in law to enter judgment in favour of the Respondent in her Cross-Petition especially, her claims in paragraph 10(B) (ii), (iii) and (iv) thereof, in the absence of any evidence

14

whatsoever to prove the said claims? DISTILLED FROM GROUND B.
?3. Whether the Onus was on the Appellant to prove the entitlement of the Respondent to the damages and the other reliefs the Respondent claimed in her Cross-Petition? DISTILLED FROM GROUNDS A AND E.
?4. Whether the Appellant?s right to fair hearing was breached by failure of the trial Court to take or hear the evidence of the Parties in the suit and treating the unsworn and unverified Cross-Petition of the Respondent as evidence before him? DISTILLED FROM GROUND D.
?5. Whether the Honourable Court was correct in law to award maintenance in the Cross-Petition arbitrarily without the Respondent satisfying him that she was entitled to the same and without considering the judicially approved provisions of the law and the factors necessary for such awards? DISTILLED FROM GROUND F?.

On the part of the Respondent, Chief Ogbonna O. Igwenyi who settled her Brief dated and filed on the 12th day of May, 2015; adopted the five Issues nominated by the learned Counsel for the Appellant as above reproduced. This Appeal was heard on the 21st day March 2016

15

and Judgment ought have been delivered earlier but for my engagement in National Assignments in Abuja.

?ARGUMENTS OF LEARNED COUNSEL FOR THE APPELLANT:
ISSUE NUMBER 1:
In arguing this Issue, the learned Counsel for the Appellant referred us to paragraph 10(B) (iv) of the Respondent?s Cross-Petition and the Answer to the Petition of the Appellant as she stated in paragraph 9(e) thereof as well as 9(h) where the Respondent Cross-Appellant/Respondent Pleaded and sought for Relief in respect of the settlement of property.

He submitted that by the said Paragraphs (e) and 9(h) of the Cross-Petition and Answer, the Respondent openly admitted that the said property at Umuesike Street by Amuhie Road, Aba is the property of the Appellant and was acquired by him and that as at the time the Suit was in Court, the house had not been completed and it has not become family property. According to the leaned Counsel there is no other averment in respect of the property throughout the Cross-Petition. we were referred to pages 16 to 22 of the Records to further argue that no evidence whatsoever was led at the hearing of the matter, by the Respondent in proof

16

of any paragraphs of her Cross-Petition as the Respondent did not testify in person, call any witness nor tender any documentary evidence whatsoever neither was the Cross-Petition verified by any affidavit. Therefore, in his view, the Respondent totally abandoned her pleadings without proving her case but that the admissions in paragraphs 9(e) 9(h) of the Cross-Petition and answer to Appellant?s Petition work against the Respondent having shown that the property in question is not family property (page 20 of the Records refers).

The learned Counsel for the Appellant maintained that the Court below ignored the fact that the Respondent did not lead any evidence whatsoever to prove that she was entitled to the Relief she claimed in paragraph 10(B) (iv) of the Cross-Petition and fact of the admissions in paragraphs 9(e) and 9(h) of the Cross-Petition that the property.

?The Court below, the learned Counsel for the Appellant also noted, erroneously treated the Respondent?s Pleading, as evidence and granted the Respondent the Relief she sought for in paragraph 10(B)(iv) of her Cross-Petition. He therefore contended on the above premises that

17

pleadings are not evidence as the Respondent was expected to have given evidence in proof of the assertions in her pleadings and that the failure to lead any evidence whatsoever in the matter is fatal to her case since she has clearly abandoned the pleadings and was therefore not entitled to the Relief sought in the Suit. It was therefore his view that the Cross-Petition ought to have been dismissed on the following authorities:
(a). Osadim V. Tawo (2010) 6 NWLR (Pt. 1189) 155 at 164; (b) Ojikutu V. Felba (1954) 14 WACA 628; (C) Ojo V. Ghahoro (2006) 10 NWLR (Pt.987) 123 ratio 19 and (d). Chiroma V. Suwa (1986) 1 NWLR (Pt.19) 751.

?It was also the further contention of the Appellant that the question of whether or not the property in question was family or joint property was not in issue as issues were not joined on same following the admissions of the Respondent in paragraphs 9(e) and 9(h) (page 20 of the Records). He therefore submitted that the Court below was wrong to have ignored the facts admitted by the Respondent that the property in question was not family property but the Appellant personal property and proceeded to share same into two

18

halves in the absence of any evidence whatsoever. He finally relied on the authority of Owe V. COP (1974) 4 U.I.L.R. (Pt. IV) 561 at 566; on the position of the law that the Court cannot import or introduce what was not the case of the parties before it and use it to make a case for a party, to urge us to resolve the Issue in favour of the Appellant.
ISSUE NUMBER 2 (TWO)
On this Issue, the learned Counsel to the Appellant also alluded to the Reliefs sought by the Cross-Petitioner/Respondent in Paragraph 10(B)(ii) (iii) and (iv) and contended that the suit came up for hearing on 3/3/10 and instead of proceeding to hear same, the Honourable Trial Judge adjourned for parties to file written Addresses and for adoption of same on the 16th of April, 2010. On the 17th of May, 2010 the parties were said to have adopted their Addresses and Judgment was delivered on 16/12/2010. He asserted that no hearing of any kind was done by the Honourable Court and no evidence was led or given by the Respondent and the Cross-Petition was not verified by any affidavit (pages 16-22 of the Records refer). Referring us to ORDER XV (Part 1) Rule 10 of the Matrimonial Causes

19

Rules which required testimony to be given at the trial, and the fact that there was no such oral testimony, he further submitted that the Honourable Court below was wrong in law to have entered Judgment in favour of the Respondent on the Reliefs sought particularly in Paragraph 10(B)(ii), (iii) and (iv) of the Cross-Petition without any evidence in proof thereof.

To buttress his above contention, he placed reliance on the cases of ALAO V. UNILORIN (2008) 1 NWLR (Pt.1069) 421 and KAYDEE Ventures Ltd. V. Minister of FCT (2010) 412 NSCQR 888 AND Akpan Vs. R. TQ1 Church (2001) 34 WRN 58 (CA); to posit that the law is trite that mere pleading does not amount to evidence and that where evidence is not led to establish the facts or claim in the pleadings, the facts or claim in the pleadings are deemed abandoned. Onagoruwa V. JAMB (2001) 12 WRN 23(CA); which reiterated the above position of the law was a gain cited to support his above submission.

Finally on this Issue we were reminded of his not being oblivious of the Provision of ORDER XV RULE 6(1) of the Matrimonial Causes Rules which allows evidence to be given in certain proceedings by affidavit but

20

that their contention herein is that no such affidavit was filed or used in the determination of the suit now on Appeal, as the Cross-Petition and Answer that was not verified is not the same thing as an affidavit evidence. We were therefore finally urged to hold that the Court below ought to have dismissed the Respondent?s Cross ?Petition in the absence of any evidence to prove same.
ISSUE NUMBER 3 (THREE):
Arguing this Issue, the learned Counsel to the Appellant recalled the filing of the cross-Petition by Respondent on 24/4/2009 wherein she claimed several heads of damages and other Reliefs at pages 21 ? 22 of the Records. He maintained that the Respondent throughout the proceedings neither gave evidence orally nor tendered any documentary evidence or rely on any affidavit in proof of her claim and above all, the Cross-Petition was not verified by any Verifying Affidavit as required by law. He recalled the holding of the Court at pages 44 to 45 of the Records/Judgment particularly lines 32 -34 of page 44 and lines 1 -7 of page 45) where the Court below observed that the Respondent did not place enough materials before him to

21

enable him decide the Claim and award to the Respondent the Relief sought.

The learned Counsel noted however that after the above observation, the Honourable Court turned the burden of proof on the Appellant for failing to disclose his status in order to enable the Court make a proper assessment (page 45 lines 11 -14 of the Records/Judgment refers); and then proceeded to grant the Respondent the Relief sought in paragraph 10(B) (ii) & (ii) of her Cross-Petition (lines 17-35 of page 45 refers). In the light of the above, he cited Section 131 of the Evidence Act on the burden of proof and contended that the Onus was on the Respondent to lead evidence and present sufficient materials to show that she was entitled to the Relief she claimed and her failure to discharge the onus was fatal to her case and the Honourable Court below was wrong to have granted the Respondent the Relief sought.

?The learned Counsel reiterated that the learned Trial Judge was wrong to have shifted the Onus of proof to the Appellant and treating the pleadings of the Respondent as evidence when she neither led oral evidence nor file any affidavit verifying the

22

Claim/Cross-Petition. He then contended from the foregoing that the Cross-Petition remained mere pleading and that in the absence of any evidence the Cross-Petition ought to have been dismissed. For the above submissions we were referred to Ogbiri V. NAOC Ltd. (2010) 14 NWLR (Pt.1213) 208 at 214 and Dumez V. Ogboli (1972) 3 SC 205; and in further contention that misplacing the burden of proof as the learned Trial Judge did occasioned the Appellant a miscarriage of Justice, he cited Onobruchere V. Esegine (1986) 11 NWLR (Pt.19) 799 and Senior Apostle Osazuwa & Ors. Vs. Isibor 7 Anor (2004) FWLR (Pt.194) 387 at 410 (CA); to urge us to resolve the Issue in favour of the Appellant.
ISSUE NUMBER 4 (FOUR)
In his argument of this Issue, the learned Counsel for the Appellant re-stated the argument on the previous Issues on the non-verification by way of Affidavit of Cross-Petition and Answer nor was oral evidence led in proof of her assertions in the pleadings. He also alluded to the treatment of the pleadings of the Respondent as evidence before proceeding to give Judgment in her favour. He referred us to pages 27, 28, 38 to 40 of the Records to submit

23

that the decision by the trial Court to treat the unsworn Cross-Petition (Pleadings) as evidence before him was wrong in Law citing Ojikutu V. Fella (supra) and Ojo V. Ghahoro (2006) 10 NWLR (Pt. 987) 123 Ratio 19; to insist that decision on the Cross-Petition without evidence by the Respondent, led to a miscarriage of justice to the Appellant sufficient to render the Judgment of the Court on the Cross-Petition a nullity on the authority of Ogbiri V. NAOC Ltd. (supra).

From the foregoing, the learned Counsel for the Appellant contended finally on this issue that the failure of the Honourable Trial Court to hear evidence in the determination of the Cross- Petition and Answer, is a breach of the Appellant?s fundamental right to fair hearing, which cannot be waived and we were urged to so hold.
ISSUE NUMBER 5 (FIVE):
On this Issue, the learned Counsel for the Appellant pointed to the Relief sought by the Cross-Petitioner/Respondent in paragraph 10(B) which was for her maintenance and the only child of the marriage. He further alluded to the Judgment of the Court below in that respect and the other parts of the Judgment where the learned Trial

24

Judge amplified that the Respondent did not satisfy him that she was entitled to the Relief she sought for, yet thereafter, the learned Trial Judge arbitrarily awarded the Respondent all that she claimed in the Cross-Petition including the maintenance of the Respondent, without considering and following the judicially approved factors to be considered before making such an award. He then enumerated the said factors to be considered in granting award of maintenance of a party in a suit of this nature citing the case of Hayes V. Hayes (2000) 3 NWLR (Pt.648) 276 at 293H to 294A in support.

The learned Counsel then submitted that from the findings of the Court as highlighted in paragraph 9.02 of his Brief, it is clear that the Honourable Trial Court was not satisfied that the Respondent placed enough materials before him to enable him make a fair assessment of the damages awarded. Conceding that the Trial Court had the discretion to award such damages or maintenance, he however stressed that such discretion should be exercised judiciously and judicially on the authorities of Folorunsho V. Folorunsho (1996) 5 NWLR (Pt.450) 612 ? 621 and Solanke V.

25

Ajibola (1969) 1 NMLR 253 at 256.

In the instant case, the learned Counsel was of the view that the Court (Respondent/Cross-Petitioners) below treated her Pleading as evidence even when he had said that it was not sufficient for him to consider the claim and did not hear oral evidence, affidavit or documentary from the Cross-Petitioner or any of the parties before awarding the Respondent the damages arbitrarily. That being the case and the reasons stated in the course of arguments, we were urged to allow the Appeal and the Judgment of the Court below on the Cross-Petition and same should be set aside while the Petition of the Cross-Appellant/Respondent should be allowed.
ARGUMENTS OF LEARNED COUNSEL FOR THE RESPONDENT.
ISSUE NUMBER 1 (ONE):
In his reaction to the arguments of the learned Counsel for the Appellant as above proffered, Chief Ogbonna O. Igwenyi for Respondent on Issue One (1) referred us to the case of Cardoso V. Daniel (1986) 2 NWLR (Pt.20) 1; on the Rules of Pleadings and where it was held that admissions are the strongest form of proof as what is admitted needs no further proof. The learned Counsel for the Respondent in

26

this regard referred us to the holding of the Trial Judge on the Claim of the Cross-Petitioner for the sharing of their family estate into two at page 46 of Records/Judgment, paragraph 9(h) of the Cross-Petition at page 20 of the Petition; the Reply by the Petitioner/Appellant to the above paragraph 7(h) of the Cross-Petition at page 25 of the Record.

Further references were made to pages 27 and 23 of the Records to submit that the Petitioner/Appellant did not deny the fact that uncompleted property would have on completion be used as family estate of the parties if the marriage had not broken down; but his (Appellant?s) denial was only that he would hold the Respondent to the strictest proof of that fact at the trial. Learned Counsel recalled that when the case came up for hearing on March 3, 2010, the learned Counsel for the Petitioner told the Court that the matter was for hearing and that they needed 14 days to file their written Addresses; which the Court obliged and gave each of the Parties the number of days sought and the case adjourned to 16/04/2010 for adoption of written Addresses.

?The learned Counsel for the Respondent pointed out

27

that the Respondent was desirous of the hearing of the case and that explained why her Counsel on 8/10/09 pleaded with the Trial Court for definite hearing of the case as can be gleaned from page 23 of the Records. Citing the Supreme Court case of Fasade V. Babalola (2003) FWLR (PH 161) 1707 AS 1721 ? 1722 PER Uwaifo, JSC; he submitted that the Petitioner/Appellant cannot afford to complain having elected to address the Court instead of hearing as he has lost the right in a way and manner that put another party in an irreversible position. In short, the learned Counsel for the Respondent took the view that the Appellant waived his right to be heard in that having discovered that the Respondent conceded to the dissolution of the marriage. He became nonchalant of any other outcome of the case but was more interested in the consolidation of his marriage to another lady more so as he agreed to take care of the only child of the marriage provided she stayed with her mother. He further submitted that the Appellant is shopping for favourable reliefs in that while he accepts the dissolution of the marriage, he attacks the same Judgment and seeks its annulment

28

only on the award of damages even though he did not unequivocally challenge the facts giving rise to the award by the Trial Court. We were urged to discountenance the argument of the learned Counsel for the Appellant on this issue as the Appeal is an afterthought calculated to keep the Cross-Petitioner/Respondent and their daughter in perpetual destitution and as such the Appellant cannot be allowed to approbate and reprobate both in equity and law. Osuji V. Ekeocha (2009) ALL FWLR (Pt.490) 614 at 639 on the need for a party to be consistent with the case he presents before the Court of trial and on appeal was relied upon to finally submit that in this are of substantial justice, the Petitioner/Appellant cannot be allowed to run away with justice of this case by denouncing the Judgment on grounds of failure of hearing he rejected during trial as that would be injustice. We were urged to so hold in dismissing the Appeal.
ISSUE NUMBER 2
On this issue the learned Counsel sought leave to incorporate his earlier arguments on the first Issue with the one at hand as both are interrelated in all material particular, for in his view, decisions of Courts are

29

See also  Alhaji Mohammed Sarki Aliyu V. Alhaji Musa Nagogo Ibrahim & Ors (1996) LLJR-CA

guided by the rules and attitude of the litigants through their legal representatives. He reiterated that when the Petitioner/Appellant at the Lower Court moved the Court below to go into addresses instead of hearing evidence on the pleadings before it, the same Appellant who got Judgment without hearing evidence cannot turn round to seek annulment of the Cross-Petition.

?We were referred to the Notice of Appeal at page 35 of the Records where part of the decision complained of was stated and submitted that as far as the Appellant is concerned, he got a good unimpeachable Judgment from his Petition but the Judgment in the Cross-Petition is bad for lack of evidence. In this wise, we were reminded that in law a fact is deemed admitted if not denied as the Courts need no further evidence on admitted facts and that in the present case both parties in their respective pleadings urged the Court to grant them dissolution of their marriage. (Pages 5 and 20 -22 of the Records refer). Further reference was made to page 24 of the Record where the Appellant in his Reply to the Cross Petition pleaded in response to the Paragraphs 9(a) (b), (C) and that he had been

30

taking care of the infant daughter of the marriage under the protection of her mother.

The learned Counsel for the Respondent noted that when the Trial Court was faced with the duty of doing justice to the parties in the absence of hearing on the pleadings, the Court below remarked as it did at page 44 of the Records about the Reply of the Petitioner to the Cross-Petition. He submitted therefore that if that is the fate of the Petitioner/Appellant?s Pleadings in reply to the Cross-Petition, then by his (Petitioner/Appellant?s statement, he admitted the facts pleaded by the Cross-Petitioner/Respondent which case the Cross-Petitioner/Respondent?s pleading need no further proof. Efet V. INEC (2011) ALL FWLR (Pt. 565) 203 at 219 Paras E ? F; Per Muhammad, J.S.C. was cited in support of the above submission.

?Placing reliance further on the case of Carleen Nigeria Ltd. V. UBA Plc. (2003) FWLR (Pt. 178) 1011 at 1033, the learned Counsel asserted that not having denied the pleaded facts in paragraphs 10(B) (ii) (iii) and (iv) of the Cross-Petition, the Petitioner/Appellant is deemed too have admitted those facts and consequently, they

31

needed no further proof and that it would be academic to insist otherwise as this Court has severally warned in numerous decisions that it has no interest in delving in to academic issues.

Furthermore, the learned Counsel took umbrage under Order XX1 Rule 2 of the Matrimonial Causes Rules, to urge us to dismiss the Appeal as Order XX1 Rule 4 specifically provides that an Application to set aside proceedings on grounds of irregularity shall not be allowed where the Application is not made timeously or where the Applicant has as in this Appeal, taken steps. We were then urged to dismiss the Appeal as it was brought in bad faith.
ISSUE NUMBER 3:
Arguing on this Issue, the learned Counsel for the Respondent contended that there was no place in the Judgment where the Trial Court called upon the Appellant to give evidence in support of the Reliefs sought by the Respondent. Rather, the Trial Judge according to Counsel, stated in the Judgment that the Appellant evaded the facts pleaded in the Petition and as such there was nothing before him in challenge of the facts pleaded.

?On this score we were referred to the findings of fact by the Lower Court

32

at page 44 of the Records, in submitting that from those findings, the Trial Judge never shifted the burden of proof damages awarded to the Cross-Petitioner/Respondent to the Petitioner/Appellant rather, the Trial Court held that in law, the evasive denial by the Petitioner/Appellant left him with only the uncontradicted allegation by the Cross-Petitioner which in effect together with the Petition and the evasive denials of the Petitioner/Respondent formed the basis and/or proper guide of the Trial Court in the award of damages in the circumstance.

Finally the learned Counsel for the Respondent asserted that the portions of the Judgment of the trial Court as cited by the learned Counsed for the Appellant are off-point but rather come from the reasons for the various damages awarded in favour of the Respondent.
ISSUE NUMBER 4:
Here the learned Counsel prefaced his argument with the contention that it is a fundamental principle of our law that a party cannot raise a fresh issue that was not before the trial Court nor will he be allowed to change his case at the Appeal Court without leave. Relying again on Osuji V. Ekeocha (supra) at pages

33

639-640; he maintained that with what transpired at page 27 (March 3, 2010) when the case was listed for hearing and the order Court that day, the Appellant?s Counsel, cannot complain of denial of fair hearing to the Appellant.

According to the learned Counsel for the Respondent and on the authority of Anyanwoko V. Okoye (2010) ALL FWLR (Pt. 515) 214 at 232; the Appellant having appealed to the Trial Court to leave the hearing of evidence and rather go into the Addresses of Counsel, the Appellant cannot approbate and reprobate by insisting that the Court ought to hear the matter in this Appeal. He insisted that a party who waives his right in a proceeding and goes further to take steps cannot later come back to complain as the Appellant did not raise the issue of fair hearing in his Written Addresses even when the learned Counsel for the Respondent requested for a date for definite hearing as can be gleaned from the proceedings of 8th October, 2009 at page 23 of the Records.

?In the view of the learned Counsel for the Respondent, to allow the Appeal on ground of lack of fair hearing will work great injustice on the Respondent and that besides, the

34

Appellant cannot in this Appeal accept the Judgment in his own Petition and reject that on the Cross-Petition conducted at the same time by the Trial Court in accordance with the election by the Appellant to forge the hearing since both Petitions favoured his ambition of the dissolution of the marriage as he practically in her Cross-Petition by his (the Appellant?s) paragraph 5 of his Reply to the Cross Petition at page 25 of the Records.

The learned Counsel for the Respondent maintained that the learned Trial Judge ought to have awarded the Respondent all the Reliefs sought for in paragraph 10(B) (i) of the Cross-Petition but the Court awarded N3,000,000.00 (Three Million Naira) as endowment fund in the alternative for the up-keep of the infant child of the marriage. Page 45 of the Records refers.

?On the argument by the learned Counsel for the Appellant that Respondent?s Cross-Petition is bad in Law because of non-compliance with Order V, Rule 10(1) of the Matrimonial Causes Rules, 1983, we were urged to note that the Respondent?s Cross-Petition though a separate case as Counter-Claim rests on the standing of the Petition.

35

According to him, if the Petition was properly brought before the Trial Court, the Answer and Cross-Petition did not require the mandatory provision of Affidavit and Verification before it could be valid in a trial. For this submission, he relied on the case of UNEGBU V. UNEGBU (2004) 11 NWLR (Pt. 884) page to urge on us that in view of the express admissions of the substantial part of the Pleadings of the Cross- Petitioner and the evasive denial of the other minor issues raised in the said Cross-Petition; there was nothing left to challenge or attack at the hearing.

He was also of the view that since the Appellant elected to go straight to Addresses instead of hearing he cannot be heard to complain of fair hearing merely because the Lower Court awarded fair and compassionate damages to the Respondent in keeping with admitted facts before it, we are to dismiss the Appeal with heavy costs.
ISSUE NUMBER 5:
On this last Issue, the learned Counsel for the Respondent answered the question posed therein by stating that the award by the trial Court was in accordance with law and flowed from the admissions made by the Appellant in his Reply to the

36

Cross-Petition. He referred to the Reliefs/Prayers sought by the Cross-Petitioner/Respondent in paragraphs 10(A) (i) of her Cross-Petition as well as 10(B)(ii) and (iii) thereof at pages 20 and 21 of the Records and paragraph 25 of the Petitioner/Appellant?s Reply thereto in submitting still on the authority of Cardoso Vs. Daniel (1986) 2 NWLR (Pt.20) 1, that the Court below held that the evasive denial without stating what exactly he was denying fell short of the standard of pleadings expected to amount to refutation of the case of the Cross-Petitioner adding that in our law such denial amounts to admission as such facts evasively or directly admitted needed no further proof.

Not having denied the pleaded facts in the Cross-Petition and electing Written Addresses instead of hearing, the Petitioner/Appellant left the Trial Court with no other option than to grant the Reliefs contained in the Cross-Petition and so he cannot fun round to seek annulment of the Judgment on ground of lack of fair hearing the Trial Court having given him the opportunity but he refused to go into hearing on the merits.

?Commenting on the award of damages, the learned

37

Counsel argued that Courts have discretion which they exercise judiciously and judicially and that in the instant case, the Petitioner/Appellant did not deny his ability to maintain the Respondent and the infant child of the marriage but rather agreed that he had been taking care of tham in his Reply to the Cross-Petition. Reference was made to paragraph 7 of the said Reply at page 25 of the Records as well as the award of N10,000.00 (Ten Thousand Naira) monthly allowance or a sum of N1, 000,00.00 (One Million Naira) in the alternative while N50,000.00 damages was awarded the Respondent for the adultery committed by Petitioner who during the pending proceedings moved into another accommodation with another lady after a lavish marriage ceremony which he did not deny. (Page 46 of the Records refers) .

?Citing the case of New Breed Organization Ltd. V. Erhomosele (2006) ALL FWLR (Pt. 307 1076 at 1120 S. C. on the power of an Appellant Court to amend an award made by a trial Court, it was submitted that where a Trial Court makes an award in accordance with proved facts and the law an Appellant Court will not normally disturb it. For this position of the law,

38

he further placed reliance on KOPEK Construction Ltd. V. Ekisola (2003) FWLR (Pt. 139) 1481 at 1506; where the circumstances under which an Appellate Court may interfere with an award of damages were stated, to posit that in the present case, it can reasonably be said that an award of N10,000.00 (Ten Thousand) monthly maintenance allowance to the Respondent who is looking after an infant of a failed marriage is rather too small to warrant an Appeal by the Appellant/Petition where the Appellant had in his Reply to the Cross-Petition agreed that he had been taking care of the Respondent and child before the filing of the Petition.

On the foregoing ground, we were therefore urged to dismiss the Appeal with Costs.
RESOLUTION OF ISSUES
ISSUE NUMBER 1 (ONE): ?WHETHER THE HONOURABLE COURT WAS CORRECT IN LAW IN IGNORING THE ADMITTED FACTS IN THE RESPONDENT?S PLEADINGS AND FAILING TO TAKE ANY EVIDENCE WHATSOEVER BEFORE DECIDING THAT THE PROPERTY AT UMUESIKE STREET ABA BY AMUHIE ROAD WAS A FAMILY OR JOINT PROPERTY AND ORDERED THAT SAME BE SHARED EQUALLY BETWEEN THE PARTIES? (GROUND C OF THE GROUNDS OF APPEAL)?.
In the resolution of

39

this Issue it is necessary to allude to the pleadings of the parties and the Reliefs sought together with the decision of the Court below that has generated the grouse of the Appellant in this Appeal nay this first Issue. There is no and parties appear to be ad idem that in the Cross-Petitioner/Respondent?s paragraph 10B (iv) of her Answer And Cross?Appeal she had sought for: ?(iv) an order dividing the family estate at Umuesike Street, Aba by Amuhie Road into two equal parts between the Petitioner and the Respondent. In the alternative the sum of N5,000,000.00 (Five Million Naira) as share of the Respondent in the said estate?.

In support of the above Relief, the Cross-Petitioner (now Respondent) had pleaded in paragraphs 9(e) and (h) of the Cross-Petition that:-
?9(e) The Petitioner also has an eighteen room building along Umuezike street by Amuihe Road, Aba.
?9(h) On the settlement of property, the Respondent applies for half of the property of Umuesike Street by Amuihe Road, Aba being property acquired by the Petitioner which would have on completion served as family home for the parties. In the

40

alterative the Respondent demands for a pay-off of half of the value of the said property to be determined by a reputable estate valuer appointed by the Court?. See page 20 of the Records.

In reaction to the above pleadings and Relief sought by the Cross-Petitioner, the Petitioner/Cross-Respondent/Appellant in his REPLY TO THE CROSS-PETITION at pages 24 ? 25 of the Records pleaded thus:-
?6. The Petitioner denies paragraph 9 in its entirety only to add that the Cross Petitioner is a teacher and gainfully employed hence capable of taking care of herself.
?8. The Petitioner denies paragraph 9(d) as he is merely managing to survive with the Economic meltdown. He hereby puts the Cross-Petitioner to the strictest proof.
?9. Further more, paragraph 9(e) (f) (g) are totally false, while paragraph 9(h) is denied and puts the Cross-Petitioner to the strictest proof of it?.

?The learned Counsel for the Appellant has rightly submitted that by the pleadings of the Cross-Petitioner in paragraphs 9(e) and 9(h) the Cross-Petitioner/Respondent had tacitly admitted that the property at Umuezike Street by Amuhie Road,

41

Aba, is the property of the Appellant duly acquired by him and that as at the time the Suit was in Court, the said house had not been completed and had not also become family property. In the words of the Cross-Petitioner, the said property was ?acquired by the Petitioner which would have on completion served at family. Home for the parties?.

Accordingly, since the property/building had not been completed and the marriage had broken down irretrievably, the Cross-Petitioner has no more any stake in the said property as that building would have become their family property if the marriage was still subsisting. Apart from the above, the Cross-Appellant did not furnish any particulars of joint ownership of the property either by way of financial contribution, labour or any other support so as to warrant the inference that the said property belonged to both of them. In any case, she had conceded that the said property was acquired by the Petitioner and that it would have served as a family house when completed. I therefore agree completely with the learned Counsel for the Appellant that there was no other averment in respect of the property

42

throughout the Cross-Petition.

With the greatest respect therefore to the learned Counsel for the Cross-Petitioner/Respondent and not withstanding his apt Statement of the law on pleadings as ably enunciated in Cardoso V. Daniel (1986) 2 NWLR (Pt. 20) 1, the Court below was in error to have held that the Petitioner/Respondent resorted to evasive and ambiguous traverse of the averment which the authorities say are unacceptable because if the Petitioner would prefer not to share the estate with the Cross-Petitioner by dividing it equally between them, then he had the liberty to pay off the Cross-Petitioner the sum of N1,000,000.00 (One Million Naira) rather arbitrarily when the said Cross-Petitioner/Respondent had stated in unequivocal terms that the Appellant acquired the incomplete building which would have been their family house if the marriage had subsisted.

?There is no doubt that there are authorities galore that a plaintiff need not proceed to prove an admitted fact and that it is also trite that a fact is deemed admitted if neither denied specifically nor denied by implication, having regards to other facts averred in the pleadings since the law

43

is also settled on authorities too numerous to mention that a plaintiff?s pleading ought to be met frontally and categorically as the rules of pleadings do not allow a Defendant to be hedgy or evasive in his answers to the facts averred in his by the Plaintiff. Where therefore, a Defendant fails to meet the facts pleaded by the opponent directly by either (admitting or denying them, except where he is not in a position to admit or deny by reason of the facts being peculiarly denied to the personal knowledge of the opposite party, then the Defendant can be deemed to have admitted the facts pleaded by other party see Owosho & Ors. V. Dada (1984) LPELR ? 2857 (SC); Per Aniagolu, JSC, Akaninwo & Ors. V. Nsirim & Ors. (2008) LPELR ? 321 (SC) Per Tobi, JSC; Veritas Insurance Co. Ltd. V. Citi Trust Investments Ltd. (1993) 3 NWLR (Pt.281) 349.

?In the circumstances of this case, since the Cross-Appellant conceded that the uncompleted building belongs to the Appellant there was nothing for the Appellant to traverse and since she was the one seeking for that relief, the onus was on her to prove

44

that, she was entitled to the settlement or award of the sum of N1,000,000.00 (One Million Naira) or N5,000,000.00 (Five Million Naira) in the alternative as part of her share of the property.

?I am not oblivious of the provisions of Sections 72 and 73 of the Matrimonial Causes Act, CAP. M7, 2004; on the specific power of Court in proceedings of this nature with respect to settlement of property and the General powers of Court in Matrimonial proceedings of this nature. For the avoidance of doubt, Section 72 of the Act provides in subsections (1) ? (3) thus:
?(1) The Court may, in proceedings under this Act, by an order require the parties to the marriage, or either of them, to make, for the benefit of all or any of the parties to, and children of, the marriage, such a settlement of property to which the parties are, or either of them is, entitled (whether in possession or reversion) as the Court considers just and equitable in the circumstances of the case.
?(2) The Court may, in any proceedings under this Act, make such order as the Court considers just and equitable with respect to the application or the benefit of all or any

45

of the parties to, and the children of, the marriage of the whole or part of the property dealt with by ante nuptial or post-nuptial settlements on the parties to the marriage, or either of them.
?(3) The power of the Court to make orders of the kind referred to in this Section shall not be exercised for the benefit of a child who has attained the age of 21 years unless the Court is of the opinion that there are special circumstances that justify the making of such an order for the benefit of that child.?
Under Section 73(1) (a) (b) (c) ? (n), in the exercise of its general powers, the Court may also do any or all of the following:-
(a) Order that a lump sum or weekly, monthly, yearly or other periodic sum be paid;
(b) Order that a lump sum or weekly, monthly, yearly or other periodic sum be secured;
(c) When a periodic sum is ordered to be paid, order that its payment be wholly or party secured in such a manner as the Court directs. The Section also provides in Subsection (1) (d), (e), (f) (h) (i) for the Court to order for any necessary deed or instrument to be executed and documents of title produced or to

46

do any other thing for the order to be carried out, and for security to be provided for the performance of an order; appoint or remove trustees; Order payments to be made directly to a party to the marriage, trustee so appointed or to any public officer or authority for the benefit of the party; make permanent order, an order pending the disposal of the proceedings, or an order for a fixed term or a life or during joint lives, or until further order; impose terms and conditions; amongst others. See further Sub-subsection (j) ? (n) of the Section.

The above provisions notwithstanding, Order XV part 1 of the Matrimonial Causes Rules, in Rule 1 (1) (2) and (3) provide thus:
?1 Evidence to be given orally
(1) Subject to this part, testimony at the trial of proceedings shall be given orally.
(2) Nothing in this part shall be taken to prevent the practice of the Court and the relevant law of evidence, by the production of documents other than affidavits.
(3) In Sub-rule (2) of this rule, ?the relevant law of evidence? means the law of evidence applying to Civil proceedings in the Court (other than proceedings

47

under the Act) so far as it is not inconsistent with the Act or these Rules.?
The self-same Order XV by its Rule 5 also makes provision for Affidavit evidence on the trial of proceedings and provides in Sub ?rules (1), (2) and (3)
as follows:-
?(1) This rule applies to proceedings for a decree of a kind referred to in paragraph
(a) of the definition of ?matrimonial cause? and to any related proceedings that are heard and determined by a Court at the same time as the proceedings for such decree.
(2) Subject to Sub-rule (3) of this rule, the Court may, by order, grant leave to a party to proceedings to which this Rules applies to furnish at the trial evidence of a particular fact by affidavit of a person, whether a party to the proceedings or not, who has, of his own knowledge, deposed to the fact.
(3) An order referred to in Sub-rule (2) of this rule may be made by a Court ?
(a) before the trial of proceedings, upon application made by a party to the proceedings; or
(b) at the trial of the proceedings, upon oral application made during that trial.
(4) Where the Court

48

makes an order, referred to in Sub-rule (2) of this rule, before defended proceedings to which this rule applies are set down for trial ?
(a) an affidavit proposed to be used on the trial of the proceedings in pursuance of leave granted to the party by the order shall, unless the Court otherwise ordered be filed within eight days after making the order, and a copy of the affidavit shall, on the day in which it is filed or on the next following day, be served on each other party to the proceedings who has filed a pleading;
(b) a party on whom a copy of an affidavit is so served may, within eight days after service, file an affidavit in reply;
(c) the party who obtained the order may within four days after an affidavit in reply is served on him, file a Further Affidavit in reply; and
(d) a copy of an which it is filed or on the next following day, be served on the party who filed the affidavit in reply to which it is filed.?
Under Sub-rule (5): ?where the Court makes an order referred to in Sub- rule (2) of this rule after defended proceedings to which this rule applies have been set down for trial, the order

49

shall specify the time within affidavit may be filed and served, and the time within which an affidavit within which affidavits in reply may be filed and served?.
As for the conduct of proceedings Rule 6 (4) and (5) provide that:-
?(4) A party who serves a notice that he desires to cross-examine the person who made an affidavit shall, unless that person is or has been the husband of that party, pay or tender reasonable expenses for the attendance of the person at the hearing.
?(5) Where a notice has been served under Sub-rule (3) of this Rule and Sub-rule (4) of this Rule has been complied with, the affidavit in relation to which the notice was served shall not be admitted in evidence upon the hearing of the proceedings or application unless ——-
(a) the person who made the affidavit is available at the hearing for Cross-examination; or
(b) the Court is satisfied that there are special circumstances justifying the admission of the affidavit in evidence?.
What emerges from the above provisions of the Matrimonial Causes Act and Rules, is that generally, evidence in matrimonial causes proceedings

50

?shall be given orally? but the Rules also make provisions or allowances where the circumstances of the case permit, for facts to be proved in accordance with the practice of the Court of trial and the relevant Law of Evidence, by the production of documents other than affidavits. The law of evidence as envisaged by the Act/Rules means the law of evidence applicable to civil proceedings in the Court other than proceedings under the Act) so far as it is not inconsistent with the Act and Rules.
By Rules 5 and 6 of Order XV, adequate provisions have also been made for admissibility of Affidavit evidence in the course of trial of proceedings for a decree of a kind referred to in paragraph (a) of the definition of ?Matrimonial Causes? and to any other related proceedings that are heard and determined by a Court at the same time as the proceedings for such decree.

Section 114 of the matrimonial causes Act which is the interpretation Section defines ?matrimonial cause? to mean
(a) Proceedings for a decree of –
(i) dissolution of marriage;
(ii) nullity of marriage;
(iii) judicial separation;
(iv)

51

restitution of conjugal rights, or
(v) jactitation of marriage?
That section amongst others also includes in the definition paragraph ?(c) proceedings with respect to the maintenance of a party to the proceedings, settlements, damages in respect of adultery, the custom or guardianship of infant children of the marriage or the maintenance, welfare, advancement or education of children of the marriage, being proceedings in relation to concurrent, pending or completed proceedings of a kind referred in paragraph (a) or (b) of this sub-section, including proceedings of such kind pending at, or completed before, the commencement of the Act?.

The provisions of both the Act and the Rules are clear and unambiguous and we ought to give the words employed by the legislature and Rules makers, their literal, simple, natural and grammatical interpretation or meaning, in accordance with the Golden Rule of interpretation of statutes in order to give effect to the manifest intention of the lawmakers. As Niki Tobi JSC (now of blessed memory) succinctly put it in the celebrated case of Ugwu V. Ararume (2008) 12 NWLR (Pt.1048) 367 at 437 -438

52

Paras. G ? A:
?It is only when the literal meaning results in ambiguity or injustice that a Judge may seek internal aid within the body of the statute itself or external aid from statutes in pari materia in order to resolve the ambiguity or avoid doing injustice. The above is an exception to the rule rather than the rule. In the construction of a Statute, the primary concern of a Judge is the attainment of the intention of the legislature. If the language used by the legislature is clear and explicit, the Judge must give effect to it because in such a situation, the words of the Statute speak the intention of the legislature (Mobil Oil Nig) Ltd. V. FBIR (1977) 3 S.C 53, Ojokolobo V. Alamu (1987) 3 NWLR (Pt.61) 377) referred?.
See further Buhari V. INEC (2008) 19 NWLR (Pt.1120) 246 at 344 paras. F ? H; Kraus Thompson Organization V. N.I.P.S.S. (2004) 17 NWLR (Pt.901) 44 at 60 -61 paras ? H ? B; Ahnned V. Kassin (1958) 3 F. S. C. 51; Lawal V. G. B. Olivant Ltd (1972) 3 S. C. 124; Adejumo V. The Military Governor of Lagos State (1972) 3 SC 45, all referred to by Tobi, JSC in Adesanoye V. Adewole (2006) 14 NWLR (2006)

53

14 NWLR (Pt. 1000) 242 at 271 Para D.

I have gone to this extent because of the strange and bizarre procedure adopted by the learned Trial Judge in the conduct of the proceedings at the Lower Court where without hearing evidence from the parties, on the issues joined he preceded to determine the case particularly on the Cross-Petition Taking into consideration the provisions of Order XV Rule 1 (2) and (3) of the Matrimonial Causes Rules which approves of the adoption of the practice of the Court on proof of facts in Civil proceedings and in accordance with the Law of Evidence, Order 37 Rules 15, 16, 17, 18, 19 to 23, 28 and 29 of the Abia State High Court (Civil Procedure) Rules, CAP. 96, Laws of Abia State, 2005 which were then applicable to the proceedings now on Appeal are relevant.

For the avoidance of doubt, I shall set down these provisions as they are relevant to this case.

Rules : deals ?15. The order of proceedings at the trial of a case where pleadings have been filed shall be as prescribed in the following Rules.
?16. The party on whom the burden of proof is thrown by the nature of material issues or questions

54

between the parties, according as the Court may determine, shall begin.
?17. The party beginning shall then produce the evidence and examine his witnesses; and when the party beginning has concluded, his evidence, he shall ask the other party if he intends to call evidence (in which term is included evidence taken by affidavit or deposition, or under commission, and documentary evidence not already read or taken as read); and if answered in the negative, he shall be entitled to sum up the evidence already given, and comment thereon; but if answered in the affirmative, he shall wait for his general reply.
?18. when the party beginning has concluded his case, the other party shall be at liberty to state his case and to call evidence, and to sum up and comment thereon.
?19. If no evidence is called or read by the latter party, the party beginning shall have no right to reply, unless he has been prevented from summing up his case by a Statement of the other party of his intention to call evidence.
?20. The case on both sides shall then be considered closed.
?21. If the party opposed to the party beginning

55

calls or leads evidence, the party beginning shall be at liberty to reply generally on the whole case, or he may, by leave of Court, call fresh evidence in reply to the evidence given on the other side, on points material to the determination of the issues, or any of them, but not on collateral matters.
?22. Where evidence in reply is tendered and allowed to be given, the party against whom the same has been adduced shall be at liberty to address the Court, and the party beginning shall be entitled to the general reply.
?23. Documentary evidence shall be put in and read by consent?

Finally Rules 28 and 29 which provide for where written pleadings are not filed or parties are illiterate and the prohibition of various questions by the Court make it explicitly clear that:
?28. In cases where written pleadings have not been filed, or the parties or either of them are incapable of understanding their effect with sufficient accuracy, the proceeding at the hearing shall be varied by the Court so far as may be necessary, and in particular, the Statement of the Defendant in defence where he does not admit the whole cause of

56

action, shall be heard immediately after the plaintiff has concluded the statement of his claim and of the grounds thereof, and before any witness is examined, unless in any case the Court shall direct otherwise
?29. The Judge may in all cases disallow any question put in cross-examination which may appear to him to be vexatious and not relevant to any matter proper to be inquired?.
See the commentaries to the above Rules at pages 518 to 528 paragraphs 39.52 ? 39. 76 of the  PRACTICE & PROCEDURE OF THE SUPREME COURT, COURT OF APPEAL AND HIGH COURTS OF NIGERIA, SECOND EDITION BY T. A. AKINOLA AGUDA M. J.PROFESSIONAL PUBLISHERS, 1995. In particular, see pages 575 ? 579 paras. 39. 52 ? 39. 54; where the learned Author posited that usually, at the close of the pleadings, the burden of proving the material issues or questions between the parties would rest on the plaintiff but that this is not necessarily so where the Defendant admits all material allegations in the Plaintiff?s pleading but alleges facts which are peculiarly within his knowledge which if true might be a complete defence to the claim against

57

him, as the Court may direct the Defendant to lead his evidence. Section 136 of the then Evidence Act, 1990 or 2004 (now 2011) refers as well as U. B. A. Plc V. BTL Industries Ltd. (2007) ALL FWLR (Pt.352) 1615 (S. C.) .

The learned Author referred to the authority of Kalu Anyah V. African Newspapers of Nigeria Ltd. [1992] 6 N. W. L. R. 319, SC ;where it was held that it is at the discretion of the Court as to who shall first adduce evidence and once the discretion has been exercised judicially and judiciously the Court of Appeal and the Supreme Court will not interfere. He further observed that if the burden of introducing evidence as laid down in the provision of the Evidence Act on the burden of proof rests either on the Plaintiff, or Defendant, then it is left with the learned Counsel representing the party to open the parties case and produce evidence (see Balogun V. Wassab (Nig.) Ltd. (1979) 3 LRN 333) and each witness is examined in- Chief by the party or his legal representative, Cross-examined and thereafter the party that called the witness is afforded the opportunity to re-examine the witness.

See also  Emmanuel Armah, Esq V. Chief Albert Korubo Horsfall (2016) LLJR-CA

Also at page 520 paragraph 39.56 of the he

58

further reasoned that calling of evidence as provided for in Rule 18 of Order 37 includes evidence by affidavit or deposition or under commission and other documentary evidence which had not been read or taken as read by the time the Plaintiff closed his case. Automatic Telephone Electric Co. Ltd . V. The Federal Military Government of the Republic of Nigeria, (1969) NRNLR 44 refers. The learned author also alluded to the case of J. W. Obadan V. Salawu Ajibade & Anor. (1959) NRWLR 112; where it was decided that where one or two Defendants decide not to call evidence but the other (s) decide so to do, the one who declined to call evidence will be precluded to establish by cross-examination of the other Defendants or their witnesses, what he declined to establish by calling his witness.

?In this case even though there is ample provision under the Rules for the Cross- Petition who was in the position of a plaintiff to lead oral evidence or apply to come by way of Affidavit evidence or Deposition, the Respondent failed to call oral or affidavit or deposition or tender any other documentary evidence. The trial Court on the other hand, treated the case as if

59

the parties were illiterates or unrepresented by Counsel.

In the case of Mobil Oil (Nig) Ltd V. FBIR (1977) 3 S. C. 1 at 15 earlier cited, the Supreme Court of yore in line with the provision of Order 37 Rule 19 of Rules of the Abia State High Court which was in pari materia with the Uniform Rules then applicable to High Courts of South Eastern States, had held that it is the right of a party to decide whether to adduce evidence in support of his pleading or not as the Court has no power to force him to give particulars of the nature and extent of the evidence which he proposes to call in the exercise of that right. However, such a party should not complain if the Court draws from the facts which had been disclosed by the other party all reasonable inferences as to what are the facts the party has chosen to with hold. See British Railways Boards V. Harrington. [1972] A C 877, 931. Even then, the Supreme Court warned the Courts in such circumstances that it would be wrong for the Judge to proceed to inject his views on matters on which there should be, but there is, no evidence before him although he is entitled to look at the Court?s Records

60

and make use of information contained therein to determine whether filing fees had been paid. See I. A. Onibudo V. Akibu & Ors [1982] 7 S. C. 60 at 90 and Eze Christian Nwanosike V. Angela Udosen [1993] 4 NWLR 684 CA.

?It is against this background that we shall consider this Issue and indeed the other four Issues which to my mind are repetitive of each other. I had earlier held that the Court below had no business holding that the Appellant?s Reply to the Cross-Petition/Respondent?s Answer and Cross-Petition in paragraph 10(B) (IV) thereof about the settlement of the Cross-Petition who had conceded that the house was acquired by the Appellant to be used as family property if the marriage had subsisted, was hedgy and evasive.

?As was held in Strata Construction (Nig.) Ltd. V. Ibitokun [2010] ALL FWLR (Pt.535) 203 S. C. and Nwavu Vs. Okoye (2009) ALL FWLR (Pt.451) 815 S. C; where as in this case, the Cross-Petitioner/Respondent introduced in his Answer and Cross-Petition facts/Reliefs as a Petitioner/Plaintiff, she was duty bound to prove the existence of such facts in order to buttress the facts pleaded and the Relief sought because if

61

she failed so to do, she would be the loser.
The law is trite that under our adversarial system of jurisprudence and the law of evidence by Sections 131(1) and (2), 132 and 133(1) Evidence Act, 2011 in particular; the burden of proving a particular fact is upon the party who asserts it and who would fail if no evidence is called on either side regard being had to the presumptions which might arise from the pleadings of the parties. It is also the law that the onus is not static as same oscillates back and forth on the pleadings until it rests on the party against whom judgment would be given if no further evidence were adduced before the Court. See Aiki Vs. Idowu (2006) ALL FWLR (Pt.293) 361, Fadlallah V. Arewa iles Mills Ltd. (1997) 8 NWLR (Pt.518) 546; F. A. T. B Ltd. V. Partnership Investment Co. Ltd. (2004) FWLR (Pt.192) 167 S. C.
?In the instant case, no evidence was led at all to animate the Cross-Petitioner/Respondent?s pleadings nay her Relief so as to shift even the burden of proof to the Appellant. The Supreme Court had made it clear and on authorities too numerous to mention amongst which is Union Bank of Nigeria Plc. & Anor.

62

Vs. Ayodare & Sons (Nig.) Ltd. & Anor (2007) LPELR ? 3391 (S.C) Per Onnoghen, JSC at 50 paras. C ?E that: ?It is settled law that where a party to an action fails to testify in support of facts in his pleadings, those facts are deemed abandoned. In the instant case there is no evidence on record touching and concerning the validity of the consent to mortgage and infact the mortgage itself?.
See also Olorunfemi V. Asho (2000) 2 NWLR (Pt. 643) 143, (2000) LPELR- 2592 (S.C) Per Ayoola, JSC at 15 paras. B ? C who relying on the cases of Adegbite V. Ogunfaolu (1990) 4 NWLR (Pt.146) 578; Egbunike & Anor V. ACB Ltd (1995) 2 NWLR (Pt.375) 34 tersely reasoned that:- ?the mere averment of facts in a party?s pleadings without evidence is not proof of such facts if it is not admitted?. The point was also emphasized in Arabambi V. Advanced Beverages Ind. Ltd. (2005) 19 NWLR (Pt.959) 1 S. C.
Finally I agree completely with the submission of the learned Counsel for the Appellant and on the authorities of Osadim V. Taiwo (2010) 6 NWLR (Pt.1189) 155 at 164; Ojikutu V. Fella (1954) 14 WACA 628; Ojo V.

63

Ghahoro (2006) 10 (Pt. 987) 12 ratio 19 where Tobi J S C at page 232 paras. A, E ? F, reiterated the positions of his learned colleagues of the apex Court that: ?Pleadings do not constitute evidence. In the instant case the Appellant failed to lead evidence in support of the fact that the Respondents used sub-standard needle in the course of the medical operation in question. (Magnusson V. Koiki (1993) 9 NWLR (Pt.317) 287; Broadline Ent. Ltd. V. Monterey Maritime Corp. (1995) 13 NWLR (Pt. 417) 1 and Ngilari V. MotherCat Ltd. (1999) 13 NWLR (PT.625) 626 Referred ?.

Having failed to adduce any evidence in support of her pleading or Relief as sought in paragraph 10(B) (iv) of the Cross-Petition, the Court below ought to have dismissed that leg of her claim particularly when she had conceded even in her pleading that the house belonged to the Appellant which house was to be family property is not even completed and the condition under which the said house was/is to be converted to family property is no longer in existence.

?The Learned Counsel for the Respondent?s grounds for urging us to discountenance the learned Counsel for the

64

Appellant?s submissions are that on March 3, 2010 when the matter came up for hearing as I had earlier noted at the beginning of this Judgment, the learned Counsel for the Appellant elected to file Written Address rather than for the case to be heard and as such he had waived his right to complain.

The Law is settled as submitted by the learned Counsel for the Respondent on the authority of Fasade V. Babalola (2003) FWLR (pt.161) 1707 at 1721 ? 1722, per Uwaifo, JSC; that:
?Waiver is the intentional and voluntary surrender or relinquishment of a known privilege or right by a party entitled to the same which, at his option, he could have insisted upon. Waiver is a curious phenomenon. It can in certain circumstances be available to a Plaintiff. It is also available to a Defendant. When available to a Plaintiff; it is not always that he needs to plead it as such. He can simply rely on the failure of the Defendant to insist on a right to which he is entitled. An example is where a plaintiff failed to fulfill a condition precedent before bringing his action, such as where a Defendant is entitled to pre-action notice. It is for him to

65

raise objection at the earliest opportunity when he overlooks the non service that could amount to waiver of his entitlement to pre-action notice?.
In the recent case of Hope Democratic Party (HDP) V. DR. Goodluck Ebele Jonathan (2011) LPELR ? 9054, Isa Ayo Salami, then Ag. P. C. A. with whom M. L. Garba, M. A. Owoade, I. I. Agube and F. O. Ogbuinya, JJCA concurred at PP. 24 ? 25 Paras. B ? G were minded to re-echoe the dictum of Tobi, JSC who quoted with approval that of Ayoola, J S C in Mobil Producing Nig. UNLTD V. Lagos State Environmental Protection Agency (2002) 18 NWLR (Pt. 798) 1; that it is a matter of law that a party who waives a procedural irregularity (if any) cannot be later heard to complain. Feeds And Food Farms (Nig.) Ltd V. NNPC (2009) 12 NWLR (Pt. 1155) 387 at 401 Per -Tobi which dealt with service on Per- action Notice of the Respondent was cited where their Lordships held that such right to be served with such notice does not fall within the category of rights which cannot be waived.
?Their Lordship further reasoned that for purposes of waiver, matters affecting the

66

jurisdiction of the Court should be categorized into two categories or compartments. In their view:
?These are jurisdictional matters affecting the public in the litigation process and those affecting the personal, private or domestic rights of the party. While the former cannot in law be waived, the latter can be waived in law. An example of the former is filing an action in a Court that has no jurisdiction to hear the matter. For example, filing an action in the High Court to determine a dispute between two States of the Federation of Nigeria. Certainly, a State High Court has no jurisdiction and as the Issue involves a Public right, none of the parties has the competence to waive it.
I come to the second one. A good example is a pre-action notice. In my view, service of pre action notice is a personal, private or domestic right of the party to be served. He is the beneficiary of the service and can waive it at will or on terms. The right is not shared by members of the Public or the public at large?.
See also UBA PLC. & Anor V. Ugoenyi & Anor (2011) LPELR ? 5065 (CCA); Auto Import ? Export V. Adebayo & Ors.

67

(2005) LPELR ? 642 (S.C), Ariori & Ors. V. Elemo & Ors. (1983) N. S. C. C. 1 at 8 (1983) ISCNLR 1 at 13 Per Ogbaugu, JSC. and NBC PLC V. Ubani (2013) LPELR ? 21902 (SC) Per Chukwuma Eneh, JSC at P22, Paras E ? G.

From the dicta of their Lordships in the cases cited, there is considerable strength in the learned Counsel for the Respondent?s Submission that the Appellant waived his right when he opted to file Written Address rather than hearing evidence and ought not to complain of such procedural irregularity which did not go to the jurisdiction of the Court since the right waived was personal to him.

However, that is how far the argument of the learned Counsel can go as the learned Counsel rightly noted that the Appellant having conceded to the dissolution of the marriage just as the Cross-Petition/Respondent and indeed the custody of the only child of the marriage by her mother, the Appellant had nothing more to prove. I reiterate that the learned Counsel for the Cross-Petitioner ought to have drawn the Court?s attention to those Reliefs sought in the Cross-Petition which ought to be proved by either oral,

68

affidavit or documentary evidence but he failed to do so. After all it was the learned Counsel for the Respondent/Cross-Petitioner Kenneth U. Eze Esq , who on the 8th day of October, 2009, when the case came up for the first time in the absence of Appellant and his Counsel was recorded by the Court as saying:
?Mr. Eze: We ask for a date for hearing-definite hearing? and the Court adjourned to 14/12/2009 for definite hearing? .

On the next hearing date which was the 3rd day of March, 2010; when Madubuike Chijioke Esq for the Petitioner opted for written Addresses even when he had earlier hinted that the matter was for hearing and later that they needed 14 days to file their written Address, Mr. Anya the learned Counsel for the Respondent who knew quite well that the Cross-Petitioner still had some pending Claims that needed proof based on the Respondent?s pleadings conceded to the strange procedure of filing Addresses when the Respondent had not led any evidence at that juncture.

?The learned Trial Judge on the other hand who was supposed lead the parties aright as the dominis litis also faltered by allowing the

69

Cross-Petitioner who did not lead any evidence either orally, by affidavit or documentary in proof of her pleadings and Reliefs sought in Paragraphs 10(B) (II) ?(IV) to also file her Written Address. Even if it is conceded that the Appellant subscribed to the strange procedure, the Court should have dismissed those Reliefs as they were not proved by any evidence.

Accordingly, the learned Trial Judge who did not hear any evidence from the Cross-Petitioner was in grave error to have decided at Page 46 of the Records/Judgment that:
?In the final analysis, the Cross-Petitioner proved her case and the orders of Court in respect of paras. 10 (B) (i), (ii), (iii) and (iv) are as stated).?

?Although I agree to same extent with the submission of the learned Counsel for the Respondent and the authorities of Osuji V. Ekeocha (2009) ALL FWLR (Pt. 490) 614 at 639 and Fasade V. BabaLola (supra); that the Appellant cannot approbate and reprobate but must be consistent in the cases he presents before the Court both in the pleading and the evidence in support, and on Appeal and that the Appellant waived his right of complaining about the

70

procedural irregularity, the trial Court before whom evidence was not led in support of the Claims in Reliefs 10B(ii) (iv) did not state the criteria followed in awarding half of the uncompleted building which Respondent conceded belonged to the Appellant and would have become family property if the marriage subsisted.

Furthermore, although Section 72(i) of the Matrimonial Causes Act conferred the Court with the jurisdiction and authority to make settlement of property between the parties or to any of them or children of the marriage, that power in line with the above section, must be exercised judiciously and judicially in accordance with the circumstances of the case. Thus, in this case, where the Respondent even conceded that the property belonged to the Appellant and no evidence of either joint ownership, contribution either financially or morally or even joint acquisition had been proffered, the Court?s Judgment was perverse and inequitable. See Amaku Amadi V. Edward Nwosu (1992) 5 NWLR (Pt. 241) 273 at n279 cited Per P. O. Ige, JCA in Onabolu V. Onabolu (2) SMC 135 at 176 Paras. D ? H to 177 Paras. A ? F.

?I therefore agree

71

completely with the learned Counsel for the Appellant that the learned Trial Judge was wrong to have ignored the fact that the Respondent admitted the personal ownership of the property sought to be shared and was shared by the learned Trial Judge, thereby occasioning the Appellant grave miscarriage of Justice. I also agree that the trial Court was wrong to have imported or introduced what was not in the case of the parties before it which he made use of in making a case for the Cross-Appellant and his judgment on that leg cannot stand. Owe V. COP (1974) 4. U. I. L. R. (pt. IV) 561 at 566 refers.

On the whole this Issue is resolved in favour of the Appellant.
RESOLUTION OF ISSUE NUMBER 2: WHETHER THE HONOURABLE COURT WAS RIGHT IN LAW TO ENTER JUDGMENT IN FAVOUR OF THE RESPONDENT IN HER CROSS-PETITION ESPECIALLY, HER CLAIMS IN PARAGRAPH 10 (B) (II) (III) AND (IV) AND (IV) THEREOF, IN THE ABSENCE OF ANY EVIDENCE WHATSOEVER TO PROVE THE SAID CLAIMS.
This Issue is inextricably tied to Issue Number 1 (ONE) which had been resolved earlier in favour of the Appellant. I have elaborately dealt with the arguments of the learned Counsel for both the

72

Appellant and Respondent and I adopt what I had said earlier on Issue Number 1 (ONE), hook, line and sinker. Specifically speaking, we had earlier resolved that the learned Trial Judge was wrong to have entered Judgment in favour of the Respondent when she did not lead evidence in proof of the Relief sought in paragraph 10(B) (iv) which was the settlement of the purported uncompleted family property situate at Umuesike Street, Aba by Aba/Amuhie Road, However, by the pleading of the Respondent at page 20 paragraph 9(h) of the Answer/Cross-Petition, the Respondent admitted that the property was acquired by the Appellant and the same was an uncompleted building which would have served as family home for the parties had the marriage which has broken down irretrievably, subsisted. There was also no particulars of the joint ownership of the property as earlier held.

As for paragraph 10(B) (ii) the Cross-Petitioner/Respondent sought for an Order for her maintenance with a monthly allowance of N50,000.00. (Fifty Thousand Naira) only until she remarried or in the alternative, the sum of N5,000,000.00 (Five Million Naira) cumulative for her maintenance as she was

73

a nursing mother.

In paragraph 10(B) (iii) the Cross-Petitioner also sought for an Order for N2,000,000.00 (Two Million Naira) general damages for adultery and intentional infliction of emotional distress. It would be recalled that the Cross-Petitioner had pleaded in paragraph 9(a) ? (g) and (i) in respect of Maintenance AND SETTLEMENT that:
(a) She was/is a house wife with nothing to do after youth service because she was already a nursing mother during and after her service to her only child of the marriage while the Appellant has been the breadwinner of the family.
(b) The Petitioner/Appellant was giving the Respondent the sum of N4,000.00 (Four Thousand Naira) weekly for the family upkeep even during the pending proceeding until 8/7/2008 when he stopped and the Respondent had been depending on help from family friends and sympathizers, to feed and care for herself, the infant and home help Miss Adaeze Njoku.
(c) The Respondent required the sum of N50,000.00 (Fifty Thousand Naira) as monthly allowances for herself, the infant child and her aid.
(d) The Petitioner was a big trader on secondhand clothes at the New Market, Aba

74

and is rich, capable and successful and maintained lavish lifestyle in his adulterous liaison with Miss Udechukwu Akubao. Thus when he did his traditional marriage (wine carrying) ceremony of the aforestated lady on 28/2/2009 it was a big bash with all the trappings of class.
(e) The Petitioner also had an eighteen room building along Umuezike Street by Amuhie Road, Aba.
(f) The Appellant was generally a loving and caring husband to the Respondent before Miss Uchechukwu Akubuo came into his life hence his (Appellant?s) present disposition and conduct are intolerable and cruel.
(g) The Respondent required maintenance for herself until she remarries or gets a job in the Public Service of the State or Federation while the infant daughter requires maintenance until she graduates and secures a job either in the private or public Sector of the economy. Alternatively, the Petitioner/Appellant could pay lump sum of N5,000,000.00 (Five Million Naira) to the Respondent for maintenance of herself and the only child of the marriage; and
(i) That the Respondent also claimed the sum of N2,000,000.00 (Two Million Naira) against the

75

Petitioner/Appellant for his adulterous affair as same resulted in ridicule and lowered the esteem and personality of the Respondent in the neighbourhood.

In the Petitioner/Cross-Respondent (now Appellant?s) Reply to the Cross-Petition he pleaded, in response to the averments of the Cross-Petitioner/Respondent in the paragraph and subparaphs above reproduced thus in paragraphs 6, 7, 8, 9, 12, 14 and 15 thereof as follows:-
?6. The Petitioner denies paragraph 9 in its entirety only to add that the Cross-Petitioner is a Teacher and gainfully employed hence is capable of taking care of herself.
?7. Furthermore, the Cross-Petitioner does not require any N50,000.00 for the upkeep of the infant child as the Petitioner had been providing all their needs in addition to the monthly allowance of N5,000.00 he sends.
?8. The Petitioner denies Paragraph 9(d) as he is merely managing to survive with the Economic meltdown. He hereby puts the Cross-Petitioner to the strictest proof.
?9. Furthermore, while paragraph 9(e) (f) (g) are totally false, whole paragraph 9(h) is denied and puts the cross-Petitioner to the

76

strictest proof.
?12. The Petitioner denies paragraph 10(b)(ii) (iii) (iv) and puts the Cross-Appellant to the strictest proof.
?14. The Petitioner states that he is trying to start his life afresh after training the Cross-Petitioner up to University level, did a lavish wedding for the Cross-Petitioner, but the economic meltdown has affected his business.
?15. That currently, he is facing a lot of discrimination at his Church, the Jehovah?s witness which is where he could have run to for financial assistance to start up a business if not this pending divorce suit?.

In his Judgment, at pages 43 ? 44 of the Records which the learned Counsel for the Respondent has graciously reproduced in part, the learned Trial Judge strangely, inspite of the denials and copious issues joined by the Appellant in his pleadings in Reply to the Cross-Petition above reproduced, held from lines 28 to 36 of page 43 thus:-
?This matter being decided on the basis of affidavit evidence, Petitioner/Respondent ought to have placed more materials in denial of the Cross-Petitioners averments. It is trite that where no

77

evidence is led in support of the pleading of the Defendant or Petitioner as the case may be, the standard of proof usually required for the Plaintiff- the Cross-Petitioner in this instance is minimal proof. In arguing the various points raised by the Respondent/Cross-Petitioner, Petitioner/Respondent merely denied the issues and in some preferred to put the Cross-Petitioner to the strictest proof?.

?At page 44 of the Records lines 1 ? 4, the learned Trial Judge rightly reasoned and held that by the Petitioner/Appellant denying and putting the Cross-Petitioner to the strictest proof, he (Petitioner/Appellant) thereby joined issues on such points as to whether(i) the Cross-Petitioner was entitled to the Relief sought as to whether the Appellant owns the building specifically described by the Cross-Petitioner and (2) whether or not the Petitioner/Appellant is a wealthy trader. The learned Trial Judge was also on very sound pedestal when he further reasoned that one of the rules of traverse is that when a party denies an allegation of fact he must answer the point of substance. He was quite right in his further Statement of the law that under

78

certain circumstances, where the pleading of the Defendant merely denies though with a clause requiring. ?strict proof? of the averments therein, without more, such pleading qualifies as being ambiguous However, the learned Trial Judge was in error to have categorized the averments of the Appellant which he had earlier admitted Joined issues with the Cross-Petitioner/Respondent on the salient points as to whether sought the Respondent was entitled to the Reliefs and/or whether the Appellant owns the house specifically described by the Cross-Petitioner as well as whether or not the Appellant is a wealthy trader.

The learned trial Judge under the above erroneous premises held that:
?It has been held that a plea in the Statement of Defence, (in this case the Reply to the Cross-Petition), that the Petition will put the Cross ?Petition to the strictest proof of the allegations leveled against him in the Cross-Petition, constitutes an insufficient denial of the allegations leveled against him in the Cross-Petition That is the case of Obodo V. OGBA (1987) 2 NWLR (pt.54) 1. That being the case, the denial of the Petitioner/Respondent

79

in his paragraphs 2, 5, 6, 7, 8 and 9 of the Reply to Cross-Petition is an insufficient denial of the contents of paragraphs 8 and 9 of the Cross-Petition?

I had already in the resolution of Issue Number ONE (1) Condemned the holding of the learned Trial Judge in the subsequent two lines following the above finding where he stated that the denials of the Petitioner/Respondent of the specific averments of the Cross-Petitioner was evasive and ambiguous and that he would say ?that the Cross-Petitioner had on the preponderance of facts proved her case against the Petitioner/Respondent? when no evidence was led in support of the pleadings of the Cross- Petitioner (Respondent in that respect on issues the Court had admitted that Appellant as Petitioner) had joined with the Cross-Appellant in this respect.

?I reiterate that the no evidence was led on Issues so joined to warrant the holding of the learned Trial Judge after so admitting earlier, on the joined issues, that the denial of the Appellant in his paragraphs 5, 6, 7, 8 and 9 of the Reply were insufficient denial of the contents of paragraphs 8 and 9 of the Cross-Petitioner. I had

80

cause to reproduce paragraphs 6, 7, 8, and 9 of the Appellant?s Reply to the Answer/Cross-Petition except paragraph 5 which averred by way of unequivocal admission that the Petitioner accepted the proposed arrangement for the infant child as contained in paragraph 8(a) only; but added that the Petitioner had continued to provide for the upkeep of the infant baby and pays for the education of the household till the date of filing the Reply.

With the greatest respect to the learned Trial Judge, this particular paragraph was sufficient traverse which confronted the averments of the Respondent in paragraph 9(b) (c) and (g) of her pleading frontally. The Appellant also countered or joined Issues with the Cross-Petitioner/Respondent when he pleaded in paragraph 6 of his Reply denying specifically paragraph 9 of the Cross-Petition in its entirety and went further to plead in the same paragraph 6 that the Cross-Petitioner ?was/is a Teacher and gainfully employed hence is capable of taking care of herself?. He further pleaded in paragraphs 7 and 8 which the learned Trial Judge purported were insufficient (albeit erroneously) that the

81

Cross-Petitioner by virtue of her gainful employment did not require N50,000.00 for the upkeep of the infant child as he (Appellant) had been providing all their needs in addition to the monthly allowance of N5,000.00 he sent.

As for his economic status, the Appellant went further in Paragraph 8 to deny paragraph 9(d) of the Cross-petition stating that he was merely managing to survive with the Economic melt- down which is a matter for judicial notice.

In any case, the learned trial Judge shifted the onus from the Cross- Petitioner who ought to have filed a further Answer or particulars that she was not so gainfully employed and that the Appellant was not taking care of the up-keep of the Cross-Appellant and their infant child and the household as above pleaded. Having not so done, she was the one to have been deemed to have admitted the Appellant?s averments in his Reply.

?Again, in the said paragraph 9 of the Appellant?s Reply to the Cross-Petition, he had further pleaded that paragraphs 9(e), (f) and (g) of the Cross-Petition were totally false while he specifically denied paragraph 9(h) of the Cross-Petition and put the

82

Cross-Petitioner/Respondent to the strictest proof thereof. Contrary to ascription of the toga of insufficiency of denial to the Appellant?s averments, the said Appellant apart from putting the Respondent to the strictest proof of her allegations on the Issue of maintenance, further pleaded in Paragraphs 14 and 15 of the Reply which I believe were more than sufficient denials and joining of Issues which would have warranted further Pleadings or particulars from the cross-Petitioner; that his economic fortunes had dwindled as he was trying to start his life afresh after training the Cross-Petitioner up to the University level, did a lavish wedding for her, but the economic meltdown affected his business.

Furthermore, the Appellant averred in paragraph 15 of the Reply that he was then facing a lot of discrimination at his Church, the Jehovah?s Witnesses which was where he could have run to for financial assistance to start up business if not for the pending divorce Suit. All these averments were not countered by the Cross-Appellant in any Reply to the Reply of the Appellant or Further Affidavit as the learned Trial Judge had held at page 43 of

83

the Records lines 28 ? 33 thereof that:
?This matter being decided on the basis of affidavit evidence, petitioner/Respondent ought to have placed more materials in denial of Cross-Petitioners averments. It is trite that where no evidence is led in support of pleading of the Defendant or Petitioner as the case may be, the standard of proof usually required for the Plaintiff- the Cross- Petitioner in this instance is minimal proof?.

?Assuming this matter was decided on Affidavit evidence (even though there is no where it was so ordered or recorded throughout the Proceedings and it would appear that the Respondent/Cross-Petitioner/Applicant?s motion filed and dated the 17th of July, 2008 for an order striking out the Appellant?s Petition for being incompetent on the grounds that no statutory Certificate of marriage was attached or annexed to the Petition and that the consequence was that the Honourable Trial Court lacked the jurisdiction to entertain the Petition; was abandoned. Furthermore, even if the Court below decided the case upon the verifying Affidavits of the parties in support of their Petition and Cross-Petition;

84

the Appellant sufficiently traversed the pleadings of the Cross-Petitioner by his paragraphs 5 ? 9 of his Reply to that Cross Petition and the Court having agreed that issues had been joined and assuming as it would appear that the Court converted the Petition to Originating Summons or Proceedings by way of Demurrer; since it was clear from the pleadings or Affidavits of parties that there were conflicting averments, oral evidence ought to be led by the parties (particularly the Cross-Petitioner/Respondent) who would fail if no evidence were led in proof of her pleadings.

In my view therefore, the authority of Efet V. INEC (2011) ALL FWLR (Pt.565) 203 at 219 Per Muhammad, JSC in paras. E ? F, who held that:
?The Law is well settled that any fact which has not been categorically countered or denied by a party, that fact is deemed admitted in law by the other party; Nzeribe V. Dave Engineering Co. Ltd. (1994) 8 NWLR (Pt.361) 124, Omoregbe V. Lawani (1980) 3- 4 S.C 108. See also Section 75 of Evidence Act, CAP.112, Laws of the Federation of Nigeria, 1990? Newbreed Org. Ltd. V. Erhomosele (2006) ALL FWLR 1076 at pages 1103 Paras.

85

A ? B and 1118 Paras G ? H Per Mukhtar, JSC (as he then was) and Ogbuagu, JSC, ably cited by the learned Counsel for the Respondent and Alao V. UNILORIN (2008) 1 NWLR (Pt. 1069) 421, and KAYDEE Ventures Ltd. V. Minister FCT (2010) 412, NSCQR888, Akpan V. R.TQ1 Church (2001) 34 WRN58CA AND Onagoruwa V. JAMB (2001) 12 WRN 23 CA; which variously held that in all Civil suits, the onus to prove a particular fact or a case in general is on the party who asserts, and that since civil suits are decided on balance of probabilities and preponderance of evidence, a party who proves his case will obtain judgment on such preponderance of evidence and balance of probability in his favour; are rather against the Cross-Petitioner/Respondent.

?In the same vein, all the authorities above cited by the learned Counsel for the parties on this Issue are agreed that the settled position of the law is that pleadings do not constitute evidence and therefore, where such pleadings (as in this case of the Cross-Petitioner/Respondent) were not supported by evidence-oral, affidavit or documentary, they are deemed as having been abandoned (see Mrs. Ezeanah V. Alhaji Atta

86

(2004) 2 SCNJ 200 AT 235). Again, it was after the Cross-Petitioners had led evidence in proof of her pleadings and if the Appellant failed and/or neglected to adduce evidence in rebuttal that the Court below could have held that the case of the Cross-Appellant would be determined on minimum proof as there would be nothing to put on the imaginary Scale of Justice. Newbreed Org. Ltd. V. Erhomosele (supra) at page 1103 paras C. D, Elebute V. Odekilekun (1969) 1 ALL NLR 449; Elias V. Omobare (1982) 5 SC 25 and Arase V. Arase (1981) 5 S. C 33; Buraimoh V. Bamgbose (1989) 3 NWLR (Pt.109) 352 and Nwabuoku V. Ottih (1961) 2 SCNLR 232; cited by Mukhtar, JSC (as he then was) in the New Breed Org. Ltd. V. Erhomosele case.

As regards paragraph 10 (B) (ii) and (iii) of the Reliefs claimed, the pleadings of the Appellant in paragraphs 6 ? 9 and indeed his paragraphs 12, 14 and 15 of his Reply to the Cross-Petition covered and had sufficiently denied the Cross-Appellant/Respondent?s non-entitlement to those Reliefs and the onus was on Cross-Appellant to prove by concrete evidence the contrary which she failed to adduce, more importantly, where in answer to

87

the pertinent question posed by the learned Trial Judge at page 44 lines 28 and 29 whether the Cross-Petitioner was entitled to the Reliefs sought in paragraph 10(B) (i) ? (iv) of the Cross-Petition and to what degree, he reasoned that since the Cross-Petition was a full- fledged case which in its own right if it must succeed needed proof.

Furthermore where the learned Trial Judge as earlier rightly observed also posited that:
?Merely stating the amount Cross-Petitioner thinks would be adequate with regard to educational needs and advancement of the child of the marriage; her own maintenance until she remarries is not enough for the Court to go by. Cross-Petitioner ought to have provided proof of financial obligations for both herself and the child of the marriage upkeep to enable the Court consider fairly what the Petitioner/Respondent should be able to afford, especially as the Petitioner has accepted that the welfare of the child of marriage is paramount though he failed to disclose on his own part how much he could afford to provide for the child?;

See also  Attorney-general of the Federation & Ors V. Abdullahi Yunusa Bayawo (2000) LLJR-CA

?The learned Trial Judge rather than put the Cross-Petitioner to the

88

strictest proof of her claims which were in the nature of special damages, shockingly went hay wire in the resolution of this question and rather held that:
?Having failed to disclose his status and/or debunking the claim of the Cross-Petitioner of his being capable to cater for the child, the Court is entitled to infer that he would be able to cater for both the mother and child?.

Although, I see nothing wrong in the learned Trial Judges view that the Appellant has to provide for the child in line with his expectations in his paragraph 5 of the Reply to the Cross-Petition; the learned Trial Judge cannot with all sincerity and his sense of Justice hold as he had done that the Appellant failed to debunk the case of the Cross-Petitioner/Respondent whom he had held earlier that her merely stating the amount that would be sufficient for her maintenance without furnishing proof of her financial obligations for the education, upkeep of the child and maintenance until she was married, was not enough.

To demonstrate that the learned Trial Jude goofed again in this regard, the Self-same learned Trial Judge at page 45 lines 30 ? 32 of

89

the Records in confirmation of the fact that the Appellant actually challenged the claim of the Cross-Petitioner/Respondent when he pleaded that the Cross-Petitioner/Respondent did not need money for her maintenance because she was gainfully employed as a teacher which said averment was not denied by the Respondent, His, Lordship held thus:-
?Since the Cross-Petitioner did not deny that she is a teacher and gainfully employed which situation is hereby taken into consideration..?

Accordingly, notwithstanding the fact the Court reduced the Relief sought for maintenance from N5 Million to N3Millon, the fact that there was no proof or particulars of the Cross-Petitioner?s financial obligations and she did not deny that she was gainfully employed so as to have been Entitled to any maintenance allowance, the award of the N3Million made arbitrarily notwithstanding the provision of Section 70 of the Matrimonial Causes Act, cannot stand as same was even in breach of the Section 70(1) which provides that such order/award should have regard to the means, earning capacity and conduct of the parties to the marriage and all other

90

relevant circumstances. See Menakaya V. Menakaya (1976) 1 FNR 127, Negbenebor V. Negbenebor (1971) 1 ALL NLR 210, Akinboni V. Akinbini (2002) 5 NWLR (Pt. 761) 564; Anyaso. V. Anyaso (1998) 9 NWLR (Pt. 564) 150 and Sotomi V. Sotomi (1976) 2 FNR 164; Kowalczuk V. Kowalczuk (1973) 1 WLR 930 and Kafi V. Kafi (1986) 3 NWLR (Pt. 27) 175.
Finally see Folorunsho Vs. Mrs. Elizabeth A. Folorunsho [1996] 5 NWLR 612 at 620 paras. G ? H Per Muhamad, JCA (as he then was) see also Onabolu V. Onabolu (supra) at page 172 per Ige, JCA, quoting with approval Hayes V. Hayes (2000) 3 NWLR (Pt.648) 276 at 293H to 294A, Per Aderemi, JCA.

Finally, on the reliance placed by the learned Counsel for the Appellant on the provisions of Order XV (Part 1) Rule 10 of the Matrimonial causes Rules although the Learned Counsel wrongly cited Rule 10 but it suffices to say that the right one is Rule 1 (1), (2) and (3) which I had copiously reproduced and dealt with while resolving Issue Number 1 (ONE) and I held that notwithstanding those provisions the Cross-Petition had a right not to call evidence in which case if her pleadings were left unsubstantiated with evidence, (as she

91

had done) then the pleadings shall or should have been deemed as abandoned and the Reliefs dismissed as had earlier been decided on the authorities cited.

I am not oblivious of the provisions of Order XX1 Rules 1 ? 4 of the Matrimonial Causes Rules on the effect of non-compliance with the Rules not rendering the proceedings void and the power of the Court to relieve a party from the consequences of non-compliance as well as the power of the Court to dispense with the need for compliance by a party with the provisions of the Rules. Furthermore, like any other Rules of Court, Rule 4 of Order XX1 also no doubt provides for the need for an application to set aside proceedings for irregularity to be brought timeously by the Applicant before taking a step after his awareness of that irregularity. However, these provisions do not dispense with the compliance of the parties with the Rules of Evidence as entrenched in Sections 131, 132, and 133 as well as 134, 136 and 138 of the Evidence Act, 2011 (statutory provisions)as regards the burden of proof. While non-compliance with procedural Rules can be dispense with, non-compliance with statutory provisions

92

especially as regards the burden of proof would lead to the abandonment of the pleadings of the Cross-Petitioner/Respondent and a dismissal of her claim for want of evidence as we had earlier decided on the authorities earlier cited. See however on the distinction between non-compliance with Procedural Rules and statutory provisions and their respective consequences, the authorities of Kalu V. Odili & Ors. (1992) LPELR- 1665 (SC) Per Nnaemeka-Agu, JSC at page 36- 37 paras. E ? A who relied on Pontin V. Wood (1962) 1 Q. B. 594 and Tozier V. Hawkins (1885) 15 Q. B. D.. 650; Nwankwo & Ors V. YAR? ADUA (2010) LPELR -2109 (SC) Per Adekeye, JSC and Nwokoro & Ors. V. Onuma & Anor (1990) LPELR ? 2125 (sc) FOLLOWING Bioku V. Light Machine (1986) 5 NWLR (Pt.39) 42; Newbreed Org. Ltd. V. Erhomosele (supra) and all the cases relied upon by their Lordships of the Apex Court on the effect of not leading evidence in support of pleadings.

?Even on the merits of the case, the holding of the Court on paragraph 10(B) (ii) (iii) and (iv) was perverse and the question of condemnation of procedural irregularity does not arise as the Court

93

disregarded all the basic requirements of law for the grant of the relief for award of maintenance and damages in favour of the Cross-Appellant/Respondent. This second Issue is also resolved against the Respondent and in favour of the Appellant.
RESOLUTION OF ISSUE NUMBER 3 (THREE) ?WHETHER THE ONUS WAS ON APPELLANT TO PROVE THE ENTITLEMENT OF THE RESPONDENT TO THE DAMAGES AND THE OTHER RELIEF THE RESPONDENT CLAIMED IN HER CROSS-PETITION
With the resolution of Issues Numbers 1 and 2 in favour of the Appellant the question posed by Issue Number 3 beggars the answer. I had already touched copiously on the arguments of the learned Counsel for the Appellant as contained in paragraphs 7.01 to 7.12 of the Appellant?s Brief as well as the Arguments of the learned Counsel for the Respondent on this Issue as contained in paragraphs 7.01 to 7.03 of the Respondent?s Brief and for the avoidance of doubt and as conceded by the learned Counsel in paragraph 7.01 of the Brief that there was no place in the Judgment that the Trial called upon the Appellant to give evidence in support of the Reliefs sought by the Respondent. However, as I had

94

earlier decided on the last Issue, by the learned Trial Judge?s holding in respect of Issue Number One (1) at the Lower Court on whether the Cross-Appellant had made enough case to succeed on her Cross-Petition, as well as on 2 and 4 (Issues (a) (b) and (d), at page 43 lines 13 ? 36 that it could be said that Respondent/Cross-Petitioner did prove her case on the preponderance of admitted facts in the sense that the Petitioner depended on general traverse in his defence to the Cross-Petition. Moreover, when he perversely held further that: ?there is no evidence per se from him in challenge of the evidence of the Respondent/Cross-Petitioner. In Dauda V. Dauda (2003) 13 NWLR (PT. 838) 657, it is the decision of Court that a Defendant who does not give evidence in support of his pleadings or in challenge of the evidence of the plaintiff is deemed to have accepted the facts adduced by the plaintiff, not withstanding his general traverse?; when there was no evidence from the Respondent as Cross-Petitioner to prove her pleadings; the learned Trial Judge indirectly shifted the onus and burden of proof to the Appellant contrary to the provisions

95

of Sections 131, 132, 133(1) 134 and 138(1) of the Evidence Act, 2011 (then Sections 135(1) (2), 136, 137(1) and 139 of the Evidence Act, Cap. 112, Laws of the Federation 2004).

The provisions of Sections 135(1), 136 and 137(1) of the Evidence Act, Cap. 112, LFN than (CAP. E14 LFN, 2004) fell for interpretation before the Supreme Court in the recent case of Alhaji Adebayo Akande V. Jimoh Adisa (2012) LPELR ? 7807 (SC) Per Muhammad, JSC at pages 19 ? 20 paras. G ? E who held that:
?On the burden of proof on the pleading, the rule is that the burden of proof rests on the party whether Plaintiff or Defendant who substantially asserts the affirmative of the Issue. The burden of proof may shift depending on how the scale of evidence preponderates. Subject to the scale of evidence preponderating, the burden of proof rests squarely on the party who would fail if no evidence at all or no more evidence as the case may be were given on either side.
In other words, it again rests before evidence is taken by the Court of trial on the party who asserts the affirmative of the issue?.
See also Orji V. DORJI iles Mills

96

(Nig.) Ltd. [2009] LPELR ? 2766 (SC), where the main question for determinate in the Supreme Court was in pari materia with the present Issue herein on who as between the Appellant and Respondent had the burden of proof. In that case, Niki Tobi, JSC (now of blessed memory) who was in his elements reasoned in his expository and illuminating treatise on this vexed aspect of our jurisprudence and in line with the provisions of Section 137 of the old Evidence Act, that:
?The burden of first proving the existence or non-existence of a fact lies on the party against whom Judgment would be given if no evidence ever was produced on other side, regard being hard to the presumption that may arise from the Pleadings. If such a party adduces evidence which ought reasonably to satisfy a Court that the fact sought to be proved is established, then the burden lies on the party against whom Judgment would be given if no more evidence were adduced; and so on successively until all issues in the pleadings have been dealt with?.
?He further explained thus:
?By the Section, the burden of proof is not static. It fluctuates between the

97

parties. Subsection (1) places the first burden on the party against whom the Court will give Judgment if no evidence is adduced on either side. In other words, the onus probandi is on the party who would fail if no evidence is given in the case. Thereafter, the second burden goes to the adverse party by virtue of Subsection (2). And so the burden changes places like a Chameleon or the weather cock dermatology until all the issues are dealt with. Section 137(1) appears to be an enactment of the common law rule of qui affirmat non ei qui negat incumbit probatio invoked by Lord Maughan in Constantine Line V. Imperial Smelting Corporation (1942) AC 154, where the learned Judge said. ?The burden of proof in a particular case depends on the circumstances in which the claim arises. In the general the rule the rule which applies is Ei-qui affirmat non ei qui negat incumbit. It is an ancient rule founded on consideration of good sense and should not be departed from without strong reason?.
Phipson justified the rule by saying that it is adopted principally because it is but just that he who invokes the hand of the law should be the first to prove his

98

case and partly because, in the nature of things a negative is more difficult to establish than affirmative. See Phipson on Evidence, Sweet and Maxwell (12th Edition) page 36. The burden is on the Plaintiff to show that he is entitled to the Reliefs sought. See Elias V. Disu (1962) 1 ALL NLR 214; The Nigerian Safety Insurance Co. Ltd. V. Zaria Cooperative Credit Marketing Union Ltd. (1978) INCA 1, Echeazu V. Awka Community Council (1980) 7 CA (Pt.1) 103; Combined Trade Ltd. V. All States Trust Bank Ltd. (1998) 2 NWLR (Pt. 576) 56. The burden never shifts.
After all, a Plaintiff should not rely on the weakness of the case of the Defendant but rather on the strength of his case as proved in Court. Attorney-General of Anambra State V. Onuselogu ? (1987) 4 NWLR (PT. 66) 547; Nirnanteks Associates V. Marco Construction Co. Ltd. (1991) 2 NWLR (Pt. 174) 411; Torkini V. Fagiti (1999) 10 NWLR (Pt. 624) 588; Olowu V. Olowu (1985) 3 NWLR (Pt.13) 372 Accordingly, a Plaintiff who fails to prove the relief or reliefs sought goes home without victory. There are no two ways about it.

99

————————————————————————————————————————————————————————————————————————————————————————
Where a fact is pleaded and no evidence is adduced to prove the fact pleaded, no onus is cast on the other side to disprove the fact not proved?.

Going by the dicta of the erudite Law Lord of blessed memory and indeed that of Muhammad, JSC in Akande V. Adisa; the pertinent question to be answered in this Appeal is whether the Court below was right to have decided that the Respondent proved his case in the absence of evidence in proof his pleadings and then expected the Appellant to adduce evidence to discharge an onus or burden which was not shifted from the Respondent to him? I think not. As I held earlier on the last two Issues, the decision of the Court at page 43 on the position of the law that where no evidence is led in support of pleadings the standard of proof is minimal should have been invoked against the Respondent and not the Appellant who was not the

100

Cross-Petitioner. The Cross-Petitioner who was like the Plaintiff on the authorities above cited bore the burden to prove her case and no onus was cast on the Appellant to disprove a fact not proved by the Cross-Petitioner whom the Court had admitted that from the pleadings of the Appellant, issues had been joined on the Reliefs sought. Not having adduced any evidence in support of those Reliefs, except for those claims which were admitted, her claims as I held earlier, ought to have been dismissed.

?The learned Trial Judge had no justification in law to have treated the Respondent/Cross-Petitioner?s Pleadings and indeed the Petitioner/Cross-Respondent?s Reply to the Answer/Cross-Petition as evidence. As I had earlier held there was no oral, affidavit or documentary evidence and even if the Court decided the case purely on points of law the fact that there were conflicting averments in the pleadings of the parties whom he agreed had joined Issues on some salient points and the Reliefs sought by the Cross-Appellant would have gingered him up to order for evidence to be led. Having not done so, I agree with the learned Counsel for the Appellant

101

on the authorities of Ogbiri & Anor. V. Nigeria Agip Oil Co. Ltd. (2010) 14 NWLR (Pt.123) 208 at 214; where our learned brothers of the Port Harcourt Division citing with approval the Supreme Court cases of Dumez V. Ogboli (1972) 3 S. C. 205 and WAEC V. Koroye (1977) 2 SC 45, restated the basic position of the law that where there is no evidence to support a claim for damages, the claim ought to be dismissed and that in that case just as it was in this case at the High Court, the Appellants failed to lead credible evidence to show that the Respondent caused the damage for which huge sum of money was claimed. In the above, cited case, was even led yet the Court decided that the claim of the Plaintiffs/Appellants was rightly dismissed for want of sufficient credible evidence but in this case no evidence was led at all as the Court below turned the parties? pleadings into evidence and even shifted the burden of proof to the Appellant herein.

I therefore agree completely with the learned Counsel for the Appellant and on the authority of Onobruchere V. Esegine (1986) 11 NWLR (Pt.19) 799 at 807 where the legendary Oputa, JSC; succinctly posited at

102

page 807 of the Report that: ?Once it is found that there had been a misapprehension as to the onus of proof and a misdirection casting such onus on the wrong party, I think it will be reasonably fair to assume the likelihood of a miscarriage of justice. To go further would be to speculate. How can the appellate Court determine, for instance, the part such misdirection played in the trial Judge?s assessment and evaluation of evidence and on the witnesses who testified?
In Lawrence Onyekaonwu & Ors. V. Ekwubiri (supra) where there was such a misapprehension as to the onus of proof, the appeal was allowed Judgment of the Court below set aside and the case was sent back for retrial before another Judge see again Senior Agostle ? Osazuwa & Ors. V. Isibor & Anor (2004) FWLR (Pt.194) 387 at 410 also rightly cited by the Learned Counsel for the Appellant.

With the greatest respect to the learned Counsel to the Respondent and based on the above authority, I had earlier held that the Court below who had agreed that the Appellant Joined Issues on the Reliefs sought by the Cross-Appellant/Respondent was

103

wrong to have shifted the burden to the Appellant and was indeed wrong to have held that the denials of the Appellant in his Reply to the Respondent?s pleadings were evasive when averments in the Reply confronted/challenged the Respondent?s pleadings frontally. The Respondent who did not lead any evidence could not have proved her case on the preponderance of evidence where there was no such evidence oral, documentary or by deposition in an Affidavit. I hold in line with the dictum of Oputa, JSC in the Onobruchere V. Esegine case (supra), that shifting the burden on the Appellant occasioned him a miscarriage of justice and this Judgment of the learned Trial Judge in which he misapprehended and misdirected himself on the onus and casting the burden on the Appellant cannot stand. Issue Number 3 is again resolved against the Respondent and in favour of the Appellant.
RESOLUTION OF ISSUE NUMBER 4: WHETHER THE APPELLANTS? RIGHT TO FAIR HEARING WAS BREACHED BY THE FAILURE TO TAKE OR HEAR THE EVIDENCE OF THE PARTIES IN THE SUIT AND TREATING THE UNSWORN AND UNVERIFIED CROSS-PETITION OF THE RESPONDENT AS EVIDENCE BEFORE HIM
In the

104

resolution of this Issue, the point must be emphasized that fair hearing is one of basic foundations of the adjudicatory process and its fundamental nature has even been given flavor by the Constitution of the Federal Republic of Nigeria, 1999 (as amended) which provides that: ?In the determination of his civil rights and obligations including any question or determination by or against any government or authority, a person shall be entitled to fair hearing within a reasonable TIME BY A Court or other tribunal established by Law and constituted in such manner as to secure its independence and impartiality?.
The Law Reports are replete with pronouncements on the above Constitutional provision by the apex Court and even other Court of Records. In one of those cases, Victino Fixed Odds Ltd. V. Joseph Ojo & 2 Ors. (2010) LPELR ? 3462 (sc); Fabiyi, JSC had cause at pages 13 ? 14 paras. A ?G, to state the scope of the concept of fair hearing as entrenched in the Constitution and reasoned in line with Amadi V. Thomas Aplin Co. Ltd. (1972) S.C. 2228; Kano N. A. V. Obiora (1959) SCNLR 577; that, that section of our grundnorm

105

incorporates the audi alteram rule which is that a man can never have a verdict entered against him on a matter relating to his civil right or obligation before such a Court or tribunal without being give an opportunity to be heard. This rule he posited and rightly too, is one of the cornerstones of our jurisprudence or judicial process.
According to the Emeritus Law Lord; –
?In its real essence, fair hearing lies in the procedure followed in the determination of the case, not in the correctness of the decision. It is only when the party aggrieved has been heard that the trial Judge would be seen as discharging the duty of an unbiased umpire?.
See also per Adekeye, JSC at Page 22, Paras. D. E. who also reasoned that procedural fairness entails that Judges must afford parties before them the right to be heard before deciding a matter. The self-same Emeritus Justice of Apex Court (Adekeye, JSC.) had also in the latter case of S & D Construction Co. Ltd. V. Chief Bayo Ayoka & Anor. (2011) LPELR ? 2985 (SC) while relying on Usani V. Duke (2004) 7 NWLR (Pt. 871). Jagbule V. Rodrigues (2002) 14 NWLR (Pt.765) 188; Adeniran V.

106

NEPA (2002) 14 NWLR (Pt.786) 30; Bamgboye V. UNILORIN (1999) 10 NWLR (Pt.622) 290 and The Registered Trustees of AMORC (2000) 4 S. C. (Pt.1) 103; enumerated the basic attributes of fair hearing to include:-
(a) That the Court shall hear both sides not only on the case but also on all material issues in contention before reaching a decision which may be prejudicial to any of the parties in the case;
(b) That the Court or Tribunal gives equal treatment, opportunity and consideration to all concerned;
(c) That the proceedings be heard in Public and all concerned informed of and granted access to such place of hearing; and
(d) that having regard to all the circumstance, in every material decision, in the case, justice must not only be done but must be seen to have been done.
Furthermore, he also placed reliance on Okoye V. Nigerian Construction And Furniture Co. Ltd. (1991) 6 NWLR (Pt.199) 501; Omo V. JSC Delta State (2000) 12 NWLR (Pt.682) 44; Ogolo V. Fubara (2003) 11 NWLR (Pt. 31) 231 and Ossai V. Wak Wah (2005) 4 NWLR (Pt.969, 208; that the burden is on the party alleging breach of his right to fair hearing to prove same in the light

107

of the facts of the case. Maikyo v. Itodo (2007) 7NWLR (Pt.1034) 443 refers); but that the Appellant cannot complain of fair hearing when he was afforded the opportunity to present its case and defend the Counter-Claim of the adversary but failed to take the advantage of the opportunity so to do.

It is also pertinent to note that as has been decided by a long line of authorities following the locus classicus of Isiyaku Mohammed V. Kano Native Authority (1968) 1 ALL NLR 424; the test of fair hearing is the impression of a reasonable person who was present at the trial would get on whether justice has been done to the parties. See, Guiness Nig. Plc. v. Ufot (2008) ALL FWLR (Pt.412) 113 at 1138 Paras. E ? F; Ogli Oko Memorial Farms Ltd. & Anor V. N. A. C. B. Ltd. Anor (2008) LPELR ? 2306 (SC) Ekpeto V. Wanogho (2004) 18 NWLR (Pt.905) 394; Sylva V. INEC (2015) 16 N. W. L. R. 576 at 620 -621 Paras. G ? C and Assams V. Ararume [2016] 1. N. W. L. R. (Pt. 1493) 368 at 388 ? 389 Paras. H ? B.

Against the background of the conduct of the proceeding and the facts of this case can we say that the Appellant was not given fair

108

hearing. We had earlier held that since it was the Appellant through his Counsel who elected to address the Court when the case was due for definite hearing and the learned Counsel for the Respondent bought the idea and adopted the procedure of not leading evidence in proof of the Respondent?s pleadings and the Relief Sought; the Appellant ought to have waived his right to complain about the procedure adopted by the learned Trial Court in the hearing of the case. See Aniagolu, JSC in Ezomo V. Oyakhire (1985) LPELR ? 1216 (SC) at page 12 Paras. B ? E who held following Ariori & Ors. v. Elemo & Ors. (1983) 1 S. C. 13. By the concept of waiver is meant that a party who was not under any legal disability and having full knowledge of his rights or interests, conferred on him by law, and who intentionally decides to give them (or some of them) up, cannot be heard to complain that he has not been permitted the enjoyment of those interests. The above case dealt with waiver of procedural irregularity which can be waived and ordinarily as held earlier the Appellant has no cause to complain.

?However, when the Court decided to give Judgment in

109

favour of the Respondent whose Cross-Petition was pending and her pleadings was challenged to the extent that the Court realized that issues had been joined upon which evidence ought to be led, yet without such evidence he proceeded to hold that the Respondent had proved her case on the preponderance of evidence which was nowhere to be found and then proceeded to shift the burden to debunk evidence which was not adduced, definitely in giving Judgment to the Respondent, the Appellant?s right to fair hearing was breached.

Apart from a reasonable person watching the proceedings leaving with the impression that the Judge was biased against the Appellant any Lawyer or Appellate Judge or Court reading through the Record of proceedings would be left with no other impression that apart from the learned Trial Judge who was the Dominis Litis abdicating his responsibility of balancing the scale of Justice between the parties, by misdirecting himself on the onus of proof and shifting same to the Appellant rather than the Respondent whose Cross-Petition was left unsubstantiated by evidence, the Appellant?s right to fair hearing was breached apart from the

110

grave miscarriage of Justice occasioned him.

Anyanwoko V. Okoye (2010) ALL FWLR (Pt.515) 214 at 232 must have been rightly decided that a procedural irregularity can be waived but definitely not a public right entrenched in the Constitution.

However, in the case of Appellant, the complaint is not only that the Court converted the Respondent?s pleadings into evidence but that he was not given a fair hearing when the Court below shifted a nonexistent onus and burden of proof to him to discharge. By virtue of Sections 137(1) (2) of the Evidence Act and 36(1) of the Constitution, unless and until the Cross-Petitioner proved her case and discharged the burden of proof, the Appellant had nothing to discharge and to give Judgment against him on the undischarged burden of proof by the Cross-Petitioner/Respondent amounts to a breach of not the Statutory provisions on burden of proof but breach of the Constitutional provision on fair hearing which rendered the entire proceedings a complete nullity as this is not a question of breach or waiver of procedural irregularity. See Sylva V. INEC (Supra), P. H. C. N. V. Alabi (2010) 5 NWLR (Pt.1186) 65; Assams

111

V. Ararume (2016) 1 NWLR (Pt. 1493) 368 and Nobis ? Elendu V. INEC [2015] NWLR (Pt.1485) 197 at 244.

Accordingly, and in the light of all the authorities considered, this Issue is again resolved in favour of the Appellant.
RESOLUTION OF ISSUE NUMBER 5: WHETHER THE HONOURABLE COURT WAS CORRECT IN LAW TO AWARD MAINTENANCE IN THE CROSS-PETITION ARBITRARILY WITHOUT THE RESPONDENT SATISFYING HIM THAT SHE WAS ENTITLED TO THE SAME AND WITHOUT CONSIDERING THE JUDICIALLY APPROVED PROVISIONS OF THE LAW AND THE FACTORS NECESSARY FOR SUCH AWARD
In my resolution of Issues Numbers Two and Three, I had resolved the question of maintenance and taken the view which I hereby reiterate that the Reply of the Appellant to the claim for maintenance except for those paragraphs wherein he out rightly admitted the Cross-Petitioner?s pleadings in respect of the welfare of the only child of the marriage; had sufficiently challenged the averments of the Cross-Petitioner to warrant the Cross- Petitioner to lead evidence in proof of paragraph 10 (B) (ii) ? (iv).

?In any case the Court had held that the Cross-Petitioner ought to have provided

112

proof of the financial obligations for both herself and the child of the Marriage to enable the Court fairly consider what the Petitioner/Respondent should be able to afford. The Court also agreed that the Cross-Appellant did not debunk the fact as pleaded by the Appellant in his said Reply that the Cross-Petitioner/Respondent was gainfully employed.

Moreover, the Cross-Petitioner/Respondent did not furnish any further particulars of the Station in life of the Appellant his financial capability after pleading that his business and financial resources had dwindled after training the Cross-Appellant in the University and organized a Lavish marriage ceremony for her as well as being negatively affected by the economic melt-down. Yet the Court went on to award the various sums of money as monthly allowances or in the alternative the lump sums when the Cross-Appellant led no evidence in proof of those claims.

?As was rightly submitted by the learned Counsel while quoting an excerpt of the Judgment which I also reproduced in the resolution of Issue Number Three, the learned Trial Judge in manner smacking of approbation and reprobation proceeded to

113

arbitrarily award the Respondent all that she claimed including her maintenance without a consideration of the laid down criteria for such award. The learned Counsel for the Appellant rightly cited Hayes Vs. Hayes (2000) 3 NWLR (Pt.648) 276 at 293 Para H to 294 Para. A where the principle, guiding the assessment of maintenance were enunciated to include:-
(a) The Stations of life of the parties and their life styles.
(b) Their respective means, income and earning capabilities/Capacities;
(c) The existence or non-existence of child or children of the marriage.
(d) The Conduct of parties.
(e) The length of time the parties were married; See, Odusote V. DR. (Mrs.) Temitaye Odusote (2011) LPELR -9056 (CA); Adejumo V. Adejumo (2010) LPELR -3602 (CA) where Section 70 of Matrimonial Causes Act which vests the Court with discretion to award maintenance award and Hayes V. Hayes (supra), Akinbuwa V. Akinbuwa (1998) 7 NWLR (Pt.559) page -60 and Damulak V. Damulak (2004) 8 NWLR (Pt.874) 157 at 171 ? 172. Finally, See Olu Ibukun & Anor V. Olu-Ibukun (1974) LPELR ? 2606 (SC) the illuminating Judgment of Fatayi-Willams pages 13

114

-15 paras. A ? D.

In the instant case, the Order for maintenance was in breach of Section 70(1) of the Matrimonial Causes Act, for not taking into consideration the above criteria.

I had already stated in the resolution of Issue Number 3 that although the Court below had the discretion to make the order for maintenance a discretion that did not take into consideration the laid down criteria by the Act, was to say the least, injudicious and not judicial and therefore cannot stand.

It is indubitable as rightly submitted by the learned Counsel for Respondent and in line with the authorities of New Breed Org. Ltd. V. Erhomosele (supra) at 1120 that an Appellate Court has the power to amend an award given by a trial Court and can also amend, as when the Justice of the case so dictates. Also as was rightly held in that case, ordinarily an Appellate Court ought not disturb the award of damages except it is established that in assessing and awarding the damages, the Court below proceeded and applied wrong principles.
?From all that I had said earlier and from the conduct of the learned Trial Judge, he applied the wrong principles and ignored

115

the right ones laid down by Section 70(1) of Matrimonial Causes Act. Therefore, New Breed Org. Ltd. V. Erhomosele is rather against the Respondent and I so hold. Again, the learned Counsel for the Respondent rightly cited the case of KOPEK Construction Ltd. V. Ekisola (2003) FWLR (Pt.139) 1481 at 1506; – 1507 paras. F ? B; where Tabai, JCA; (as he then was) relying on Momodu Vs. UNIBEN (1997) 7NWLR (Pt.512) 325 at 350 ? 351, Audu V. Okeke (1998) 3 NWLR (Pt. 542) 373 and Bala Vs. Bankole (1986) 3 NWLR (Pt.127) 141; enumerated the conditions under which an Appellant Court like Ours will interfere with an award of damages made by a trial Court thus:-
(a) Where he acted on wrong principle of law.
(b) Where he acted on misapprehension of facts;
(c) Where it took into accounts relevant matters or failed to take into account relevant matters; or
(d) where injustice would result if the appellate Court does not interfere; or where the amount awarded is either so ridiculously high or so ridiculously Low that it must have been an erroneous estimate of the damages?.

?From the above analysis, just like the KOPEK Const. Ltd. V.

116

Ekisola case, the Court below as already held acted on wrong principle of Law, misapprehension of the facts of the case, failed to take into the consideration relevant criteria for the award of damages or maintenance allowance, and there would be grave injustice which has already been occasioned when no evidence was led and the Court proceeded to arbitrarily hold that the Respondent had proved her entitlement to the Reliefs sought; not to talk of the amount of damages awarded.

In the light of above Kopek Construction V. EKISOLA (Supra), is also against the Respondent?s case.

Where as in this case, the learned Trial Judge breached all known Rules of evidence and thereby breached the Appellant?s right to fair hearing, the proceedings except the Order pertaining to maintenance of the only child of the marriage are a nullity.

On the whole all other aspects of the Judgment touching on the Reliefs cannot stand and are accordingly dismissed.

This Appeal therefore succeeds in part and the Judgment of the Hon. Justice N. C. Otti of the Abia State High Court sitting at Aba, which Judgment was delivered on the 16th of December, 2010 is

117

hereby set aside. Parties shall bear their respective Costs.


Other Citations: (2016)LCN/8945(CA)

More Posts

Facebook
Twitter
LinkedIn

Leave a Reply

Your email address will not be published. Required fields are marked *

LawGlobal Hub
LawGlobal Hub is your innovative global resource of law and more. We ensure easy accessibility to the laws of countries around the world, among others