➥ CASE SUMMARY OF:
Paul Adebayo Ogundare & Mrs. Oluwatoyin Owolabi V. Mrs. Sabainah Abosede Ogundare (CA/EK/53/2020, 18 June 2021)
by Branham Chima (LL.B.)
➥ ISSUES RAISED
Adultery;
Order of sale of house.
➥ CASE FACT/HISTORY
This is an appeal against the decision of the Ekiti State High Court, presided over by Hon. Justice O.I.O. Ogunyemi J., delivered on the 13th day of February, 2020, upholding the cross petition of the Respondent. The Petitioners were dissatisfied with the decision and filed a Notice of Appeal on the 4th day of May, 2020, containing 5 grounds. See pages 660–663 of the Record of Appeal– simply to be referred to as ‘’the Record”.
➥ ISSUE(S) & RESOLUTION(S)
[APPEAL SUCCEEDS, IN PART]
↪️ I. Whether the Trial Court was right to have ordered that the house of the 1st Appellant situate at No. 71 Ayeyemi Street, Odo-Oro, Ikere-Ekiti be sold and the proceeds be shared between the 1st Appellant and the Respondent?
RESOLUTION: IN APPELLANT’S FAVOUR.
[THE RESPONDENT PRODUCED NO EVIDENCE
‘During trial the Respondent was not able to produce evidence in respect of the averments reproduced above in respect to the plot at No. 71, Aiyeyemi Street, Odo-Oro, Ikere-Ekiti, Ekiti State. No receipts were produced in support of the claims of the building materials said to have been purchased by the Respondent/Cross-Petitioner. Worst still during hearing the Petitioners especially the 1st Petitioner/Appellant was not cross examined in respect to the property said to be jointly owned by the parties. It is therefore an error by the Lower Court to hold that it was crystal clear that the 1st Appellant and the Respondent jointly owned the property at No. 71, Aiyeyemi Street, Odo-Oro, Ikere-Ekiti, Ekiti State, when the Respondent/Cross-Petitioner could not substantiate her claims. I so hold, resolving issue 1 in favour of the 1st Appellant. To that extent I set aside the order of sale of the property at No 71, Aiyeyemi Street, Odo-Oro, Ikere-Ekiti, Ekiti State.’]
.
.
↪️ II. Whether the Trial Court discharged its judicial duty right when it ordered the 1st Appellant to pay the sum of N500,000.00 (Five Hundred Thousand Naira Only) to the Respondent as Legal expenses to be incurred by the Respondent?
RESOLUTION: IN APPELLANT’S FAVOUR.
[SOLICITOR’S FEES IS A FORM OF SPECIAL DAMAGES THAT OUGHT TO BE PARTICULARISED
‘The above sum of Five Hundred Thousand Naira only (N500,000.00) was not broken down. In other words, the fee was not particularized to enable the Court to know whether it included filling fees, solicitors’ fees or any other fees required to be charged.’
‘My Lords, a claim for cost of the action is in the nature of special damages and therefore, can only be granted upon strict proof by the Appellant since a claim for special damages is never granted as a matter of course. It must be specifically pleaded, itemized with its particulars and strictly proved by credible and cogent evidence at the trial as it denotes pecuniary losses that have crystallized in terms of cash and value at the time of the commencement of the action. See Ohadugha v. Garba (2000) 14 NWLR (Pt. 687) 226 @ p. 244. See also Nigerian Dynamic Ltd. v. Aguocha (2002) FWLR (Pt. 104) 630 @ p. 658.’
‘I fully subscribe to the above profound statements of the law by this Court per Akpabio JCA., way back in 1998, and which still remains true and apt. I also see no reason in the instant appeal to depart from my views as expressed above in 2018. I feel bound by it, and with good reasons too, on the facts and circumstances in this appeal, where it appears the claim in Relief F, as unsupported as it by any modicum of affidavit and or documentary evidence, was merely taken for granted and or as a matter of course by the Appellant, when it reality it falls squarely under the head of claim specifically referred to as special damages. In my finding therefore, the Court below was right in declining to grant the said relief F claimed by the Appellant against the Respondent and in law an appellate Court has no business interfering with the correct findings of a trial Court even if the reason adduced and relied upon by the trial Court to arrive at the correct findings turns out to be wrong. See Alhaji Ndayako and Ors. v. Alhaji Dantoro and Ors. (2004) 13 NWLR (Pt. 889) 187 @ p. 198, where Edozie, JSC., had pronounced with finality on this vexed issue, thus: “An appellate Court is only concerned with whether the judgment appealed against is right or wrong not whether the reasons given are right or wrong. Where the judgment is right but the reasons given are wrong, the appellate Court does not interfere. It is only where the misdirection has caused the Court to come to a wrong conclusion that the appellate Court will interfere….” See also Abaye v. Ofili (1986) 1 NWLR (Pt. 15) 134; Ukejianya v. Uchendu 18 WACA 46. In the light of all I have found and stated above, I hereby resolve issue two against the Appellant in favor of the Respondent.”’]
.
.
↪️ III. Whether the Trial Court acted right when it ordered that the 2nd Appellant should pay the sum of N3,000,000.00 (Three Million Naira Only) to the Respondent for inducement of breach of contract of marriage?
RESOLUTION: IN RESPONDENT’S FAVOUR.
[YES, COURT WAS RIGHT, BUT DAMAGES IS REDUCED TO N2,000,000
‘In this case the Lower Court has found that there was abundance of evidence of adultery committed by the 2nd Appellant with the 1st Appellant (which cannot be faulted) and so properly awarded damages against her. The contention of the Appellant’s Learned Counsel that this case falls under Section 31(3) of the Act does not hold water because the Appellants have been living in adultery since 2014 and up to the time of the suit. Now based on the principles of law enunciated in OKORO v. OKAOME and ANOR (supra) I hold that the sum of N3,000,000.00 awarded against the 2nd Appellant is too exorbitant. Same is reduced to the sum of N2,000,000.00 by me. This issue is therefore resolved against the 2nd Appellant and in favour of the Respondent.’]
.
.
.
✓ DECISION:
‘Appeal succeeds in part and cost of N50,000.00 is awarded in favour of the Respondent and against the Appellants.’
➥ FURTHER DICTA:
⦿ A PRELIMINARY OBJECTION IS FOR OPPOSING THE ENTIRETY OF THE APPEAL NOT SOME GROUNDS
From the above notice and grounds of the P. O. in this appeal, it is clear that the objection is not an attack on the hearing of this appeal, but a complaint against ground 4 and issue 4. It is the law that a P. O. should only be filed against the hearing of an appeal and not against one or a few grounds of appeal. This approach is not capable of disturbing the hearing of the appeal. This is because a P. O. is intended to convince the court that the appeal is fundamentally defective and, if successful, as I earlier indicated, terminates the appeal in limine, resulting in the striking out of the appeal at that stage. In a situation where the P. O. would not be the appropriate process to attack the hearing of the Appeal, the proper process would be a motion on notice filed complaining about a few grounds or defects in the notice and grounds of appeal. See ISAH v. INEC and 3 ORS (2014) 1–2 SC (PT. IV) p. 101; NWAOLISAH v. NWABUFOR (2011) 6–7 SC (PT. 11) p. 138; DAKOLO and 2 ORS v. DAKOLO and 3 ORS. (2011) 6–7 SC (PT. 111) p. 104; WACHUKWU and ANOR v. OWUN WANDE and ANOR (2011) 5 SC (PT. 1) p. 168 and UMANAH v. NDIC (2016) LPELR–42556 (SC) pp 6–7 para E. In this appeal the Respondent’s objection is against Ground 4 and issue 4 only and not against the hearing of the entire appeal. Therefore, the Respondent ought to have filed a motion on notice attacking the defective ground 4 and issue 4. Since the Respondent did not do so, the P. O. is hereby dismissed, on the authority of HON. MINISTER OF MINES and STEEL DEVT. and ANOR v. GREENBAY INVESTMENT and SECURITIES LTD and ORS. (2000) LPELR–50470 (CA). — I.A. Andenyangtso JCA.
⦿ REPLY BRIEF IS NOT TO REARGUE ISSUES ALREADY ARGUED
It is to be noted that all the issues stated above were fully treated by the Appellants in their Brief and only responded to by the Respondent. There are, therefore, no new issues raised by the Respondent. The Appellants simply used the Reply Brief to reargue the appeal which is not the function of a Reply Brief. It has been stated by the Apex Court that the function of a Reply Brief is to answer the arguments in the Respondent’s brief which were not taken in the Appellant’s brief. It is not meant to be a repetition of the arguments in the Appellant’s brief. It is not an opportunity to re-emphasize the arguments in the Appellant’s brief. See ECOBANK (NIG) LTD v. HONEYWELL FLOURMILLS PLC (2019) 2 NWLR (PT. 1655) 55 at 73 – 74 paras G–A. In the instant case, the Reply Brief filed by the Appellants did not seem to deal with fresh issues raised in the Respondent’s Brief as claimed by the Appellants, but a repetition of the arguments already contained in the Appellants’ Brief, which ought not to be so. See ABDULLAHI v. MIL. ADMIN. KADUNA STATE (2009) 15 NWLR (PT. 1165) 417; OGUANUHU v. CHIEGBOKA (2013) 6 NWLR (PT. 1351) 558; ONWUDIWE v. F.R.N. (2006) 10 NWLR (PT. 988) 382. It has also been held that the essence of a Reply on point of law in an application, just as a Reply Brief in an appeal, should be for it to be used to answer, respond or react to any new or fresh point raised in the Respondent’s address or Reply Brief. It should and cannot be used to further argue an application already argued in the Appellant’s written address or used as a repair kit or avenue to correct defect, deficiency or errors made in the written address of an Applicant/Appellant. See AHMODU and ANOR v. YUNUSA (2010) LPELR–8601 (CA) pp 14–15 para E. Consequently, the Reply Brief herein is only countenanced as it relates to the P. O. The reply to the arguments of the Learned Counsel to the Respondent, not being used to answer new or fresh issues, is hereby discountenanced. — I.A. Andenyangtso JCA.
⦿ PROPERTY ACQUIRED BEFORE MARRIAGE UNDER THE ACT IS NOT SUBJECT OF JOINT OWNERSHIP
It is trite that property acquired before marriage under the act is not subject to joint ownership of the parties. See MUELLER v. MUELLER (2006) 6 NWLR(PT.977) 627. It is also the law that in determining settlement of property under Section 72 of the Act the Court must consider and be guided by the existence of evidence of proof of contribution to the construction of the property. See ETEBU v. ETEBU (2018) LPELR–46250 (CA) pp 47-51 paras A-E; ONI v. ONI (2019) LPELR – 48765 (CA) pp 23-31 para F. — I.A. Andenyangtso JCA.
⦿ WHERE SOLICITOR’S FEES DOES NOT FORM PART OF THE CLAIMS/RELIEFS OF THE ACTION, IT WILL NOT BE GRANTED
The law as it stands today on claims for solicitor’s fees is that where such claims do not form part of the cause of action in litigation they will not be granted. In the case of MICHAEL v. ACCESS BANK (2017) LPELR- 41981 (CA) pp 48-49 paras E-E this Court per OGAKWU, JCA held as follows:- “Be that as it may, it seems to me that a claim for solicitors fees which does not form part of the cause of action is not one that can be granted. A relief which a Claimant in an action is entitled to, if established by the evidence, are those reliefs which form part of the claimant’s cause of action…..” In the case of GUINESS NIG. PLC v. NWOKE (2005) 15 NWLR (PT. 689) 135 at 159, this Court also held that a claim for solicitor’s fees is outlandish and should not be allowed as it is not part of or did not arise as a result of damages suffered in the course of any transaction between the parties. See also NWANJI v. COASTEL SERVICES LTD (2004) 36 WRN 1 at 14-15, where it was held that it was improper, unethical and an affront to public policy to have a litigant pass the burden of costs of an action including his solicitor’s fees to his opponent in the suit. — I.A. Andenyangtso JCA.
⦿ DISTINCTION BETWEEN SPECIAL DAMAGES AND GENERAL DAMAGES
I have taken time to consider the submissions of counsel for the parties on this issue and I note that when it comes to damages that a Court can award to a successful litigant on his pleading and evidence, the law as I understand it, and as buttressed by a plethora of decided cases as replete in our law reports, is that there is a distinction and very wide divide between special damages and general damages. These differences includes, though not intended as an exhaustive list of these differences, the following namely: 1: General damages need not be pleaded but special damages must be specifically pleaded; 2: General damages need not be proved but special damages must be specially proved; 3: In General damages the assessment is the duty of the Court but in special damages its assessment is based on what is specifically proved; 4. General damages refer to those damages, which flows naturally from the wrongful act of the Defendant but special damages are those damages which denotes those pecuniary losses which have crystallized in terms of cash and values before the trial. See Ijebu Ode Local Government v. Adedeji Balogun and Co. (1991) 1 NWLR (Pt. 166) 36. See also Bello v. AG Oyo State (1986) 5 NWLR (Pt. 45) 828; UBN Ltd. v. Odusote Book Stores Ltd (1995) 9 NWLR (Pt. 421) 558. It is settled law that though there is need to specifically plead and strictly prove special damages, the rule requires anyone asking for special damages to prove strictly that he did suffer such damages as he claimed, it does not means that the law requires a minimum measure of evidence or that the law lays down a special category of evidence required to establish entitlement to special damages. However, what is required to establish entitlement to special damages is credible evidence of such a character as would suggest that the party is indeed entitled to an award under that head, otherwise the general law of evidence as to proof by preponderance or weight as usual in civil cases operates. Thus, special damages in most cases denote those pecuniary losses which have crystallized in terms of cash and values at the trial and must be specifically pleaded and strictly proved. See British Airways v. Atoyebi (Supra) @ p. 289. See also Emirate Airline v. Ngonadi (NO.1) (2014) 9 NWLR (Pt. 1413) 429 @ p. 495; Emirate Airline v. Ngonadi (No.2) (Supra) @ p. 545; Tsokwa Motors Nigeria Ltd v. UBA Plc (2008)2 NWLR (Pt. 1071) 347 @ p. 366; Ijebu Ode Local Government v. Adedeji Balogun and Co. (1991) 1 NWLR (Pt. 166) 36; Bello v. AG Oyo State (1986) 5 NWLR (Pt. 45) 828; UBN Ltd. v. Odusote Book Stores Ltd (1995) 9 NWLR (Pt. 421) 558; Oshinjinrin v. Elias (1970) All NLR 153; Warner International v. Federal Housing Authority (1993) 6 NWLR (Pt. 298) 148 … In Air France and Anor v. Chinyere Owualah (2018) LPELR – 45841 (CA) 1 @ pp. 85 – 87, I had the opportunity to consider the issue of claims for cost of litigation, either as cost of filing fees or payment of solicitors or as claim by a Solicitor for his fees and I had opined inter alia thus: “On the claim by the Respondent for the payment of her solicitor’s fees under special damages against the Appellants, in law this head of claim for damages by way of solicitor’s fees and the subsequent award of same by the Court below is alien to our civil jurisprudence as such claim is not legally recoverable. See Nwanji v. Coastal Services Nig. Ltd. (2004) 11 NWLR (Pt. 885) @ pp. 568 – 569; Guinness Nig. Plc. v. Nwoke (2000) 15 NWLR (Pt. 689) 135. Having reviewed the totality of the pleadings and evidence of the Respondents on this head of claim, I think a distinction must be drawn between claim by a Solicitor for his fees from his client for services rendered for which the Court would in law if proved, through evidence of the services rendered and the bill of cost, which is usually agreed upon as required by the Rules of Professional Conduct and the Legal Practitioners Act, readily grant and a claim for professional fees not by Solicitor but by his client against an adversary in litigation, which the law frowns at as unethical and an affront to public policy for one party to pass on the burden of his Solicitors fees to the other party. If I may ask to whom would that other party then pass on his Solicitor’s fees for payment? I cannot now fathom!” — I.A. Andenyangtso JCA.
⦿ CONSIDERATIONS BEFORE AWARDING DAMAGES IN A CASE FOR ADULTERY
It is clear that Section 31(1) of the Matrimonial Causes Act Cap 220 of 1970 provides for the right to claim damages for adultery. However, these damages in divorce have always been compensatory only and not exemplary or punitive. It is to compensate the party for the loss sustained and not for the purpose of punishing the adulterer. See OKORO v. OKAOME and ANOR (2015) LPELR – 41424 (CA) page 15 para A. In awarding damages, the court must be guided by the following principles: – The value of the wife or husband. The injury to the spouse’s feeling. Living apart of husband and wife. Ignorance of the marital status of the Respondent. Character and conduct of the spouse, See OKORO v. OKAOME and ANOR (supra). — I.A. Andenyangtso JCA.
➥ LEAD JUDGEMENT DELIVERED BY:
Ibrahim Ali Andenyangtso, JCA
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
Foluso Kayode Esq.
⦿ FOR THE RESPONDENT(S)
Mrs. Genevieve Okoye.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
Section 72 of the Matrimonial causes Act 1970 which provides: “72 (1) The Court may, in proceedings under this Act, by 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 the 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 proceedings under this Act, make such orders as the Court considers just and equitable with respect to the application for the benefit of all or any of the parties to, and the children of, the marriage of the whole or part of the property dealt with 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 twenty-one years unless the Court is of opinion that there are special circumstances that justify the making of such an order for the benefit of that child.”
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)