➥ CASE SUMMARY OF:
Ibeabuchi V. Ibeabuchi (CA/K/322/2012, 31 Mar 2016)
by Branham Chima (LL.B.)
➥ ISSUES RAISED
Adultery;
Paternity;
Settlement of property.
➥ CASE FACT/HISTORY
The petition was amended on the 22nd of May, 2006. The petition was predicated on these grounds: “(i) The marriage between the petitioner and the respondent has broken down irretrievable. (ii) The marriage between the petitioner and the respondent has broken down irretrievably on the ground that the Respondent has willfully and persistently refused to consummate the marriage. (iii) The respondent has behaved in such a way and manner that the petitioner cannot reasonably be expected to live with the respondent.”
The appellant (as petitioner) sought the following reliefs: “(i) A decree of dissolution of the marriage (ii) Exemplary and aggravated damages of ₦20,000,000.00 (Twenty Million Naira only) for committing adultery with Mr. Samson Chukwuma while the marriage between him (the petitioner) and respondent was still subsisting.”
This appeal is against the judgment of the Kano State High Court of Justice in suit No. K/410/2005 delivered on the 30th of March, 2012 by BAYERO, J. The appellant (Mr. Alexander Ibeabuchi) filed the petition against the respondent (Mrs. Nneka lbeabuchi) on the 8th of June, 2005.
➥ ISSUE(S) & RESOLUTION(S)
[APPEAL DISMISSED, IN PART]
↪️ I. Whether the award of the house No. 48 Sarki Yaki Road, Sabon Gari, Kano (which is the residence of the petitioner and his children from a previous marriage) and monetary damages to the cross-petitioner/ respondent was fair and just in the circumstances of this matter especially when the respondent has not made out her case to be entitled to same?
RESOLUTION: IN APPELLANT’S FAVOUR.
[THE AWARD OF THE HOUSE TO THE RESPONDENT WAS NOT JUST AND FAIR
‘But, the evidence adduced before the lower Court are that the marriage between the appellant and the respondent did not last for a long period; The respondent could not have contributed to the development or the acquisition of the house No. 48 Sarki Yaki, Kano to warrant the decision of the lower Court awarding same to her. Also, it is in evidence that the appellant was, living in the house with 3 children of a previous marriage. The respondent did not adduce evidence that the appellant owned a house or houses apart from No. 48 Sarki Yaki Sabon Gari, Kano. Is it therefore just, fair and equitable, in the circumstances, to award the house to the respondent? I do not think so. It is for this reason that I find it imperative to disturb the award of the said house to the respondent. The justice of the case demands that the appellant who acquired the house during the subsistence of a previous marriage (that is before the marriage with the respondent), and living with him are 3 children, should not have been deprived of the house in which they were residing. I am in agreement with the submission Duru Esq., of learned counsel to the appellant, that the learned trial judge’s exercise of discretion was influence by sympathy and sentiments in favour of the respondent. The law is trite sympathy and sentiments have no place in the administration of justice. That a Court of law should not based its decision on sympathy or sentiments has been reinforced in the case of Onwunala v. Uche (2010) 2 NWLR (Pt. 1179) P. 582 @ 608 wherein it was held thus: “it would appear that learned trial Judge with due respect to his lordship was perhaps swayed by sentiments having regard to the extent of the 1st Respondent injuries. The finding of the learned trial Judge is not borne out by the evidence before the Court. In such circumstances, this Court is entitled to interfere…Having failed to proven a breach of the duty of or the question of assessment of damages did not arise.” For the foregoing reasons, I find it necessary to interfere with the exercise of discretion by the learned trial judge of the lower Court, for it has not been carried out judicially and judiciously, in the overall interest of justice, fairness and equity. Issue 1 is hereby resolved in favour of the appellant.’]
.
.
↪️ II. Whether in the light of the fact that the issue of paternity was hotly contested in this matter, the learned trial Court ought to have determined the paternity of little Anointed Ibeabuchi (so named by his mother) without a recourse to a DNA test?
RESOLUTION: IN RESPONDENT’S FAVOUR.
[THE EVIDENCE OF THE RESPONDENT WAS NOT CONTROVERTED
‘The respondent as DW2 testified at the lower Court on the marriage between her and the appellant thus: “He came to my family house and met my parents and said he was no longer interested in the marriage. My parents were annoyed. I told them I was pregnant. He said we should go for the second test. He sent his in-law Mr. Godwin Moronu to take me to the hospital. He took me to a lab. They conducted the test using my urine as sample. They said it was negative that I was not pregnant. I protested and said I should be taken to a Hospital. The same person took me to a Hospital, ultra-sound test was conducted and I was 3 months pregnant and the result was given to Moronu. He photocopied and took the original to the Petitioner. The Petitioner is the father of my child. I have no doubt to that.” The above evidence of the respondent has not been controverted by the appellant.’
‘On the totality of the evidence adduced by the appellant and the respondent on the paternity or legitimacy of Anointed Ibeabuchi, (the child of the marriage) the respondent has proved her case on the balance of probability. The learned trial judge of the lower Court was right when he held on page 359 of the record of that Master Anointed Ibeabuchi was born during the subsistence of the valid marriage between the appellant and the respondent.’]
.
.
↪️ III. Whether the trial Court validly assumed jurisdiction to entertain the Respondent’s Cross petition in this matter?
RESOLUTION: IN RESPONDENT’S FAVOUR.
[WRONG ASSESSMENT OF FILING FEE BY THE REGISTRAR TO BE PAID CANNOT DIVEST THE COURT OF JURISDICTION
‘The law is trite, payment of Court filing fees for a matter to be instituted in a Court of law is a condition precedent to the assumption of jurisdiction by Court of law as held in the case of Onwagbufor v. Okoye (1996) 1 NWLR (Pt. 424) P. 252. But, assuming the respondent as cross-petitioner did not pay the correct filing fee, can that per se divest the lower Court of the jurisdiction to entertain the suit. What is important is that the respondent paid the fees as assessed by the registrar. If the registrar under-assessed the amount to be paid, that per se cannot be a ground to divest the lower Court the jurisdiction to hear the suit. Once any amount of filing fees as assessed by the registrar of Court, has been paid, that suit is deemed to have been rightly filed, and the Court has the jurisdiction to entertain same. The foregoing reasonings and conclusion have the support in the Courts decisions in the cases of Akaji v. Udemba (2003) 6 NWLR (Pt. 815) P. 179 @ 181, where Ubaezonu JCA (as he then was) held that: “It is a correct statement of the rule of law that the Court process on which a fee is payable shall not be issued unless and until the appropriate fee payable on the process has been paid…The failure to pay the fee was not a mistake on the part of the Respondent…The Registrars were paid fully. If the Registrar failed to collect the full or appropriate fee, it is not a matter for which a party should be penalized… The Respondent failed to pay the necessary fee for the counter-claim through no fault of his.”’]
.
.
↪️ IV. Whether the learned Judge was right when he held that exhibit 1(b) without certificate of marriage duly issued under the Ad is not enough evidence to prove that the respondent was married to Mr. Samson Chukwuma and also does not constitute the ingredient of the offence of adultery?
RESOLUTION: IN RESPONDENT’S FAVOUR.
[NO EVIDENCE THAT THE RESPONDENT COMMITTED ADULTERY
‘On page 362 of the record of appeal the learned trial Judge of the lower Court held thus: “The Court observes that Exhibit it 1(b) does not prove the ingredient of the offence of adultery neither did the Petitioner (PWI) or PW2 said they saw the Respondent having sexual intercourse with Mr. Samson Chukwuma and so hold.” The learned trial Judge was right in his decision supra, because: (i) PW2, Mr. Nwachi, did not see the respondent having sexual intercourse with Mr. Samson Chukwuma. (ii) Even if, PW2 saw the respondent with Mr. Chukwuma in front of a Hotel, that per se cannot be evidence of committing adultery. (iii) Exhibits 1(a) and 1(b) the invitation card and photograph of Mr. Chukuma cannot be evidence on which a Court can rely on to convict any person for committing adultery under Section 388 of the Penal code. (iv) The evidence of the respondent recorded on pages 32-33 of the record of appeal, which have not been contradicted, completely discredited the evidence of the appellant on the allegation of committing adultery while being married to him.’
‘The decision of the learned trial Judge on pages 362 of the record of appeal that the allegation of adultery has not been proved by the appellant is not perverse because the said decision has been predicated on the credible and cogent evidence before the Court.’]
.
.
✓ DECISION:
‘The decision of the learned trial Judge of the lower Court in awarding House No. 48 Sarki Yaki Road, Sabon Gari, Kano, to the respondent is hereby set aside. If the respondent has taken possession of the said house, she is to give up possession forthwith to the appellant. I make no order as to costs of the suit. Each party to bear the costs of prosecuting his/her appeal to this Court.’
➥ FURTHER DICTA:
⦿ CRITERIA IN ASSESSING CREDIBILITY OF EVIDENCE WHERE PATERNITY OF A CHILD IS IN DISPUTE
The above evidence of the respondent has not been controverted by the appellant. In assessing the credibility of the evidence of a witness where the paternity of a child is in dispute, this Court, in the case of Megwalu v. Megwalu (1994) 7 NWLR (Pt. 359) P. 718, outlined what are to be considered. The Court said that a judge should give due regard to the following in assessing the credibility of a witness: “(a) The opportunity of access for sexual intercourse between the husband and the wife at the material time; (b) The physical condition of the husband at the material time; (c) The opportunity of access for sexual intercourse between the wife and the third person; (d) The time of birth and time of the sexual acts by each contestant; and (e) Sometimes, blood tests of the parties, to confirm blood groups, (underlining mine)” — I.S. Bdliya JCA.
⦿ GENERAL DETERMINANTS OF JURISDICTION
The law is trite, in determining whether a Court of law has the jurisdiction to entertain a matter or not certain condition are to be satisfied as enumerated in the case of Ohakim v. Agbaso (2010) 7 SCNJ P. 137 @ 199 thus: “All law Courts or Tribunals, while exercising the powers, must be guided by the general determinants of jurisdiction: – (a) the statute establishing the Coutts/Tribunal; (b) the subject matter of litigation; (c) the litigating parties; (d) the procedure by which the case is initiated; (e) proper service of Process; (f) territory where the cause of action arose or as the case may be where the Defendant resides; (g) composition of the Court/Tribunal.” — I.S. Bdliya JCA.
⦿ NATURE OF ADULTERY, PROOF REQUIRED, AND INGREDIENTS
Counsel to the Appellant also contended that the lower Court was wrong in its finding that the Appellant failed to prove the allegation of adultery against the Respondent. Adultery has been defined as consensual intercourse between two persons of opposite sexes, at least one of whom is married to a person other than the one with whom the intercourse is had, and since the celebration of the marriage. Thus, to establish adultery, there must be sexual intercourse, the sexual intercourse must be voluntary and at least one of the parties must be married. Adultery must be proved strictly and clearly and the standard of proof is as required in civil cases. It is axiomatic that adultery is essentially an act which can rarely be proved by direct evidence. It is a matter of inference and circumstances. The law has thus set down certain conditions from which adultery can be inferred and these are (i) evidence of disposition and opportunity for sexual intercourse with a person other than the spouse; (ii) general cohabitation – where it is established that there is a state of general cohabitation between a man and a woman, adultery is presumed between them; (iii) confession and admission of adultery; (iv) entry in register of birth – entry of birth by the wife which omits the name of the child’s father or simply gives a name other than the husband amounts to an admission of adultery; and (v) frequent visits to hotels – Erhahon v. Erhahon (1997) 6 NWLR (Pt. 510) 667 and Alabi v. Alabi (2008) All FWLR (Pt. 418) 245. — H.A.O. Abiru JCA.
⦿ WHEN IS EVIDENCE SAID TO PREPONDERATE
As stated earlier, the onus was on the Appellant to prove the allegation of adultery by preponderance of evidence. Evidence is said to preponderate where it is relevant and credible evidence that is conclusive and that commands such probability that is in keeping with the surrounding circumstances of the case in hand – Dibiamaka v. Osakwe (1989) 3 NWLR (Pt. 107) 101 at 113, Jiaza v. Bamgbose (1999) 7 NWLR (Pt. 610) 182, Egwa v. Egwa (2007) 1 NWLR (Pt 1014) 71. A case is decided on the totality of evidence adduced. Therefore, if on any given issue, the evidence of the claimant be as good as that of the defendant so that there is an equilibrium, it is the party on whom rests the burden of proof that fails. This is because the evidence does not preponderate in such party’s favour – Ezukwu v. Ukachukwu (2000) 1 NWLR (Pt. 642) 657, Ukaegbu v. Nwololo (2009) 3 NWLR (Pt. 1127) 194. This was explained by Omosun, JCA in Igwe v. Alozieuwa (1990) 3 NWLR (Pt. 141) 735 at page 751, thus: “It is not enough for a party to a case who has the onus of establishing a particular fact to say that his own evidence is just as good as that of his opponent. What the law says he must do to discharge the onus of proof on him is to prove by evidence which convinces the Court or Tribunal of the probability of his case rather than that of the opponent on the point in issue…” — H.A.O. Abiru JCA.
➥ LEAD JUDGEMENT DELIVERED BY:
Ibrahim Shata Bdliya, JCA.
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
DURU Esq.
⦿ FOR THE RESPONDENT(S)
Uzuegbu Esq.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
Section 72 of the Matrimonial Causes Act.
➥ REFERENCED (CASE)
⦿ BECAUSE THE APPELLATE COURT WOULD HAVE EXERCISED ITS DISCRETION DIFFERENTLY IS NOT A REASON TO INTERFERE
M and B Electrical Co. Ltd v. Govt. Cross-River State (2005) All FWLR (Pt. 284) p. 350 @ 366 that: “Provided a trial Court has exercised its discretion judicially and judiciously, an appellate Court would not interfere with such exercise of discretion by the trial Court merely because it would have exercised the discretion differently if it had been in the position of the trial Court.”
➥ REFERENCED (OTHERS)
