⦿ CASE SUMMARY OF:
Esther Mueller v. Werner Mueller (2005) – CA
by PipAr Chima
⦿ LITE HOLDING
As husband and wife, there is nothing wrong in buying property in the name of one of the parties. Such still remains matrimonial property which belongs to the parties jointly.
⦿ TAG(S)
Joint property.
Equity is equality.
Property partitioning.
Divorce.
⦿ PARTIES
APPELLANT
Esther Mueller
v.
RESPONDENT
Werner Mueller
⦿ CITATION
(2005) JELR 41009 (CA)
⦿ COURT
Court of Appeal
⦿ LEAD JUDGEMENT DELIVERED BY:
JOHN AFOLABI FABIYI, J.C.A.
⦿ APPEARANCES
* FOR THE APPELLANT
* FOR THE RESPONDENT
⦿ FINDING-OF-FACT
⦿ CLAIM
As extant in Exhibit A, certificate of marriage, the parties herein got married at the Port Harcourt City Council, on 6th June, 1989. When the marriage headed for the rock, the Respondent petitioned and prayed, inter alia for the dissolution of the marriage and equitable partition of properties jointly owned.
The Appellant reacted and prayed for dismissal of the petition. She also cross-petitioned for a dissolution of the marriage. Both petitions were heard at the High Court of Justice, Port Harcourt, Rivers State of Nigeria. On 20/12/99, the learned trial Judge made an order of decree nisi dissolving the marriage. This was followed with an order partitioning the matrimonial property. The Appellant was ordered to return two generators to the Respondent, though the Respondent admitted that the generators had been returned.
As manifest on Page 140 of the record of appeal, the drawn up order in respect of the judgment was signed by the learned trial Judge on the same 20/12/99. As can be seen at pages 157-158 of the record of appeal, the learned trial Judge, on 15th February, 2000, further granted the undeveloped part of the premises in dispute to the Respondent. Such was geared at correcting an omission in the judgment entered on 20/12/99.
The Appellant felt unhappy with the two decisions of the lower Court. Two Notices of Appeal were filed on her behalf. The Notice of Appeal in respect of the judgment entered on 20/12/99 was accompanied by seven (7) grounds of appeal. One additional ground of appeal was, with the leave of this court, filed on 29/1/01. As against the ruling of 15/2/2000, amending the judgment delivered on 20/12/99, the Appellant also filed a Notice of Appeal accompanied by a ground of appeal.
⦿ ISSUE(S)
1. Whether the learned trial Judge was justified in ordering the Appellant to return two generators to the Respondent who had admitted the return of the two generators by the Appellant?
2. Whether the learned trial Judge was justified in law, in arriving at the findings of facts/conclusions she made in favour of the respondent, without first appraising or evaluating the evidence led before her?
3. Whether the learned trial Judge had jurisdiction to amend the earlier judgment delivered on 20-12-99 and to have entered a second judgment on 15/2/2000 awarding additional, but unclaimed relief to the Respondent?
⦿ RESOLUTION OF ISSUE(S)
[APPEAL: ALLOWED IN PART]
1. ISSUE 1 RESOLVED IN FAVOUR OF THE APPELLANT.
RULING:
i. The Respondent, under cross-examination at page 71 lines 21-24 of the transcript record of appeal, admitted that the Appellant had released the two generators to the Respondent’s former company as they belong to the company.
The order for the return of two generators by the Appellant to the Respondent has no base to stand. Since, the two generators had been returned by the Appellant to Respondent’s company, the order should not have been made in the first instance. Without much ado, that order is set aside as issue No. 2 is resolved in favour of the Appellant.
2. ISSUE 2 WAS AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
RULING:
i. The Respondent strongly maintained that the property in dispute is matrimonial property both in his petition and evidence viva voce. It was the Respondent who tendered Exhibits F-F1; receipts of purchase of the property issued by D.W.1 who agreed that at the time of the transaction, he was satisfied that the Appellant who paid him was married and came to him as Mrs. Esther Mueller. Also, D.W.2 confirmed that he dealt with the Appellant as a married woman. It is noteworthy to mention it that the appellant, in some letters written by her, acknowledged contributions made by the Respondent. In Exhibit D14, it is manifest therein that the Appellant received from the Respondent, the sum of N100,000 which she used to buy blocks and bags of cement and for redesigning the building plan. Exhibit D15 talked about building the remaining part of the land. The appellant tried to deny the letters, contents of which are relevant, but such denial did not catch my fancy. The handwritings are the same in all the letter and many of them were written on letter headed papers of a company Finest Group Ltd owned by the Appellant, who at every turn of events tried to milk the Respondent dry.
ii. The Respondent said he took loan to develop the land. He tendered Exhibits H and J to support same. A company loan obtained by the Respondent for new residential accommodation in the sum of N320,000 was converted by the Appellant. This loan to the respondent was confirmed by P.W.2.
iii. With the above firm evidence, the onus shifted to the Appellant, who claimed exclusive possession and/or ownership of the property to prove it. She tendered Exhibit O which is the same as Exhibit F1 confirmed by the vendor DW1. She also tendered Exhibit P building plan made by D.W.2 . Both said that they understood that the appellant was married at the material time. She pleaded deed of conveyance for the transaction which was never tendered. She claimed to have purchased the property with profits from her supply business with big companies. She said she would rely on documents to prove same. Not a single document was tendered in this direction. It may be safely presumed that no such documents exist. See Section 149 (d) of the Evidence Act, Cap 112 Laws of the Federation of Nigeria, 1990. The Appellant failed to prove her assertion that she bought the property through her sweat.
iv. Appellant complained that she was referred to as a woman of straw before the marriage and thereafter. There is no cause for complaint as same is borne out in the pleadings and evidence of the Respondent, who said he met the Appellant at Oyigbo Express Guest House, where she was working as a room cleaner. Same was confirmed by the Appellant herself in her evidence. In any event, I do not refer to the appellant as a woman of straw, but one thing is certain. She failed to show how she gathererd money on her own to acquire the property in dispute at the ‘choice’ location of the city of Port Harcourt. In my view, however, the finding of the trial Court was not based on speculation, but rather on pleadings and evidence.
3. ISSUE 3 WAS RESOLVED IN FAVOUR OF THE APPELLANT BUT AGAINST THE RESPONDENT.
RULING:
i. It is common ground that a final judgment was entered on 20-12-99. An order embodying the judgment was drawn up and signed by the learned trial Judge on the same date. Except to correct clerical errors and mistakes, which is often referred to as the ‘Slip Rule’, the learned trial Judge became functus officio as she had discharged her function and performed the imbued assignment.
ii. What then is the proper order in respect of the undeveloped vacant portion of the property in contention? The answer is not far-fetched. The Respondent herein, as petitioner at the lower court, prayed for equitable equal partition of the property between the parties. At page 108 of the record of appeal, his counsel talked of ‘equitable equal partition’ of the property between the parties. It is often said that ‘equity is equality.’ Since that is so, the Respondent who was awarded two of the three houses on the land should not have been further awarded the undeveloped portion of the land. The undeveloped portion of the land should, in the principle of equity, go to the Appellant. That is the proper order in the prevailing circumstance. And the same is ordered accordingly.
⦿ ENDING NOTE BY LEAD JUSTICE – Per
⦿ CONTRIBUTIONS OF OTHER JUSTICES TO ISSUE(S)
⦿ REFERENCED (STATUTE)
⦿ REFERENCED (CASE)
LUMSDEN v. LUMSDEN (1963) 5 FLR 388, the Supreme court of Victoria said on the issue of award of maintenance and I quote from 392 thus: “Maintenance is intended to provide for the needs of the wife and not mark disapproval of the husband’s conduct.”
⦿ REFERENCED (OTHERS)
⦿ NOTABLE DICTA
* PROCEDURAL
The stance of the learned Counsel for the Respondent in this respect is commendable. It is prudent to concede a point which is not a moot one. That is how to assess a counsel who knows his onions very well. – Afolabi Fabiyi JCA. Mueller v. Mueller (2005)
The point must be made that, it is the primary duty of a trial Court to make findings of fact on evidence adduced before it and ascribe due probative value to same. It is only when the trial court abdicates its duty or fails to perform it properly that an appellate court can step in to perform such a function. Even then, an appellate court can only do so, if the demeanour of witnesses is not in point. – Afolabi Fabiyi JCA. Mueller v. Mueller (2005)
Appellate Court will only interfere with findings of fact of a trial Court, if it is shown that the conclusion reached is not in tune with the flow of evidence, or that the decision was wrong or perverse. – Afolabi Fabiyi JCA. Mueller v. Mueller (2005)
* SUBSTANTIVE
Husband and wife, given the changes sweeping across our society today, in so far as the rights and duties to make financial provisions are concerned, albeit in theory, are gradually moving towards equal footing base. Many wives are today, more financially empowered than their husbands. And so the courts are fast moving away from the old rule whereby, they virtually ordered financial provisions in favour of the wife. Law, to be useful, must always reflect the norms and developmental stages reached in a society, where it will apply. While I will say that it serves useful purpose to apply, in full force, the pronouncements of courts of other jurisdiction, in particular decisions of courts of very advanced countries in deciding cases of similar nature in developing countries; we must allow such decisions to provide only a guide without prejudice to keeping in mind the stage of our own development. – ADEREMI, J.C.A. Mueller v. Mueller (2005)
It seems to me that given the state of civilization, we have reached in this country today and bearing in mind, the emancipation of the women folks into the sold orbit of financial empire in this country today, it seems to be that the sum, if any, to be awarded for the maintenance of a party to a matrimonial proceeding or even the child or children of the marriage should be determined by among other facts: “(1) the stations in life of the parties and their lifestyles, (2) their respective means, (3) the existence or non-existence of child or children of the marriage, and (4) the conduct of the parties.” – ADEREMI, J.C.A. Mueller v. Mueller (2005)
⦿ SIMILAR JUDGEMENTS
