⦿ CASE SUMMARY OF:
Mr. Innocent Ugwumba Eluwa v. Mrs. Florence Ogadinma Eluwa (2013) – CA
– Dissolution of marriage;
– Decree nisi;
– Cross petition;
Mr. Innocent Ugwumba Eluwa
Mrs. Florence Ogadinma Eluwa
Court of Appeal
⦿ LEAD JUDGEMENT DELIVERED BY:
Mohammed Lawal Garba, J.C.A.
* FOR THE APPELLANT
– Mr. Livinus Udofia, Esq.
* FOR THE RESPONDENT
– Chief Anselam Eyo, Esq.
⦿ FACT (as relating to the issues)
The Appellant had presented a petition for the dissolution of his marriage with the Respondent at the High Court of Akwa Ibom State, sitting at Eket, on grounds of cruelty, intolerable behavior, scandal, incompatibility or irreconcilable differences leading to the irretrievable break down of the marriage. On her part, the Respondent answered the petition and cross petitioned against the Appellant who replied and also answered the cross petition.
The petition and cross petition proceeded to trial during which each of the parties testified in support of his/her case, and final addresses were filed and adopted by learned counsel for the parties.
On the 8/2/2012, the High court delivered its judgment, dismissing the Appellant’s petition, allowed the cross petition by the Respondent and dissolved the marriage by a decree Nisi. Custody of the two (2) children was granted to the Respondent with unrestricted access to them by the Appellant who was also ordered to pay a monthly maintenance allowance of N250,000.00 to the Respondent.
Apparently being aggrieved and thoroughly dissatisfied with the decision by the High court, the Appellant caused a notice and grounds of appeal to be filed against same on the 6/3/2012.
1. The record of appeal in this appeal was transmitted to the Court of Appeal out of the time permitted by the Rules of the Court of Appeal without any order granting leave to the appellant to so do.
2. All the grounds of appeal as contained in the record of appeal are vague and incompetent and not capable of having issues distilled therefrom.
3. The appellant’s brief of argument is incompetent as the issues for determination canvassed therein are distilled from incompetent grounds of appeal.
1. Whether the trial court was not entitled to dismiss the petition of the appellant and uphold the cross petition?
⦿ HOLDING & RATIO DECIDENDI
[APPEAL: ALLOWED IN PART, THE MARRIAGE WAS STILL DISSOLVED BECAUSE BOTH PARTIES SOUGHT THE DISSOLUTION]
1. ISSUE 1 WAS RESOLVED AGAINST THE APPLICANT BUT IN FAVOUR OF THE RESPONDENT.
i. Since the learned counsel for the Respondent did not suggest that the non-compliance with the Rules in the transmission of the record of the appeal to the court has occasioned any prejudice to the Respondent howsoever, I am prepared, in the interest of justice and expeditious consideration and determination of the appeal which the Rules of court aim to achieve, to treat it is an irregularity which the court on its own motion, can correct at this stage of the appeal, by deeming the said record to have been properly transmitted for the purposes of the hearing and determination of the appeal. I do and the objection on that ground, fails and is overruled.
2. ISSUE 2 WAS RESOLVED AGAINST THE APPLICANT BUT IN FAVOUR OF THE RESPONDENT.
i. Looking calmly at the grounds 1 and 2 of the Appellant’s notice of appeal, they present no difficulty whatsoever in understanding what the complaints are by the Appellant against the decision of the High Court. The points in the judgment with which the Appellant is dissatisfied are clearly stated in the grounds, which were inadvertently, set out under the particulars instead of immediately below and after the grounds and errors of law. Learned counsel for the Respondent did not say or appear to have any difficulty in understanding what the nature of the grievance of the Appellant is against the judgment of the High Court in those grounds. The grounds may be wanting in form but their substance is clear and unambiguous and are competent grounds for determination in the appeal.
3. ISSUE 3 WAS RESOLVED IN FAVOUR OF THE APPLICANT BUT AGAINST THE RESPONDENT.
i. The Appellant’s ground 3 is beyond viable argument, a ground appropriate and valid only in criminal appeals as a general or omnibus ground of appeal. Civil matters or cases are by our law of evidence; Section 134 of the Evidence Act, 2011, decided on the balance of probabilities or preponderance of evidence and therefore on the weight of such evidence as evaluated and ascribed by a trial court. A complaint therefore in a general or omnibus ground against the decision by a lower court to this court on the assessment or evaluation of the totality of the evidence adduced by any or all the parties and ascription of the probative value or weight due to it, should be based on the weight of such evidence and not on the reasonableness of the decision. That is the position of the law and because the Appellants ground 3 is not a valid omnibus or general ground in civil appeals, it is incompetent and liable to be struck out. The Respondent’s counsel’s objection on the ground succeeds and is upheld and in consequence, the ground 3 of the notice of appeal is hereby struck out. For being struck out, the Appellant’s issue three (3) as well as the submissions thereon in the Appellant’s brief, would be discountenanced in the determination of the appeal for being no longer live.
1. ISSUE 1 WAS RESOLVED
i. Since the relief for the dissolution of the marriage claimed by the Appellant in his petition was eventually granted by the High Court in the judgment appealed and it is the same relief being claimed by the Appellant in the appeal, there is no practical use or purpose to be served by an evaluation of the evidence adduced by the Appellant before the High Court since even if it was found to have proved that the marriage has broken down irretrievably; the order to be made by the court as the relief sought by the Appellant is one for the dissolution of the marriage. It would purely be academic to embark on the process of determining whether the High Court was right in its decision on the order of dissolution of the marriage whether on the Appellant’s grounds or those of the Respondent since the order was mutually sought by them in their respective cases. The law is known that the courts do not engage themselves in consideration of issues, points or matters that are purely academic in cases before them.
ii. In its judgment, the High Court had rightly approached, considered and evaluated the evidence of the parties in respect of the custody of the two (2) children in the marriage in line with some of the factors listed above and the peculiar circumstances of the case, before arriving at the conclusion to award the custody of the children to the Respondent. I find no justification or any sound reason to interfere with that decision by the High Court on the award of custody of the children. Perhaps I should point out that the duty of this court is limited to finding out whether or not the High Court has made proper finding which the evidence before it deserves in awarding custody to the Respondent. It is not the function of the court to simply set aside the decision of a lower court on the ground only that it would have reached a different conclusion on some or even all the facts before that court. I find no procedural or substantive error in the award of custody to the Respondent by the High Court that would warrant a correction and interference with the award.
iii. Next is the decision on the award of maintenance allowance to the Respondent. Here again, the High Court had considered and evaluated the evidence before it and found that the averment of the Respondent that the Appellant earns a monthly salary of N1,300,000.00 from his employment in paragraph 7(iv) of her Reply and cross petition, was not denied by the Appellant. However, the Appellant had in paragraph 9(c) of his Reply to the Answer and cross petition of the Respondent averred thus:-
“9(a) The Petitioner moved from Geo Services (Nig) Ltd. in May, 1995 and joined Mobil Producing (Nig) Unlimited where is currently working and that he does not earn such salary shown in paragraph 7(iv) of the Respondent’s reply in a month but rather per annum.”
This averment is clearly a denial of the Respondent’s averment that the Appellant earns N1,300,000.00 per month currently from his employment with Mobil Producing Unlimited. It is therefore not correct to say that the Appellant did not deny the Respondent’s averment in respect of the income from his employment. That notwithstanding, the High Court had considered the means of the Respondent as disclosed by the evidence of the Appellant in Exh.’2′ being a retired nurse, the income of the Appellant and the custody of the two children awarded to the Respondent in arriving at the sum of N250,000.00 per month as maintenance allowance in her favour. I find no error in the procedure and factors considered in making the award on the evidence and circumstances of the case. There is no reason for the court to interfere with that award.
⦿ SOME PROVISIONS
S. 15 & 16 of Matrimonial Causes Act;
Order 5 Rule 3 of the Matrimonial Causes Rules, 1983;
⦿ RELEVANT CASES
Innih v Ferado A. & Co. Ltd. (1990) 5 NWLR (Pt. 152) 604 at 614 Kolawole, JCA, said, “This court and the Supreme Court have stated on numerous occasions that in a civil appeal, the general ground is that the judgment is against the weight of evidence, whilst in a criminal appeal, it is that the verdict is unreasonable and cannot be supported, having regard to the evidence.”
Ikpana v Reg. Trustees of P.C.N (2006) ALL FWLR (310) 1703 at 1715, per Adamu, JCA, had held that:- “As for ground 5 of the appeal, it is couched in the form of an, omnibus ground applicable to criminal case because of the use of the following phrase at its end; “….are unwarranted, unjustified and against the weight of argument (sic; evidence).” The use of a criminal form of ground in a civil case or matter is not appropriate or permitted by the court. Consequently, the said ground should be and is hereby disregarded or discountenanced.”
Egesie v Elele (supra), it was held at page 1685 that:- “In a civil appeal, the general ground of appeal is stated as “judgment is against the weight of evidence”, whilst in a criminal appeal, it is stated that the verdict is “unreasonable and cannot be supported having regard to the evidence.” Pats Acholonu, JCA, then, had stated at page 1686 of the report that:- “It is most unfortunate that the Appellant has (to do the garb) a ground meant for a notice of appeal in a criminal case in clothing of the notice of appeal in a civil matter.”
Otti v Otti (1992) 7 NWLR (252) 187 at 212, it was held that:- “It is elementary that a cross petition is itself a petition for it is the same category as a counter-claim. The cross petitioner must therefore prove every averment in the cross petition.”
In deciding what the welfare of a child is, factors which have been considered relevant by the courts include:- a) degree of familiarity between the child and each of the parents respectively, b) the amount of affection between the child and each of the parents, c) the respective income and position in life of each of the parents, d) the arrangements made by the parties for the education of the child e) the fact that one of the parents now lives as man and wife with a third party who may not welcome the presence of the child, f) the fact that young children should as far as practicable, live and grow up together g) the fact that in cases of children of tender ages should, unless other facts and circumstances make it undesirable, be put under the care of the mother, h) the fact that one of the parents is still young and may wish to marry and the child may become an impediment.
⦿ NOTABLE DICTA
These Rules, and all Rules of court, which impose a legal duty, obligation and therefore a burden on a party or officials to take steps aimed at the orderly and expeditious determination of an appeal in and by the court, are meant to be and must be obeyed and complied with by them. It is not for any party or official of courts to take the Rules of a court for granted even if they were in discretionary terms, let alone in mandatory tenor and expect that the courts would as a matter of course, condone the attitude for no tenable reason. All Rules of courts are not made and meant to be ignored, disregarded or for fun and left to the whims of parties or officials of courts, but are bound to be obeyed and complied with. – Lawal Garba, JCA. Eluwa v. Eluwa (2013)
Because the Rules of the court are inter alia, intended to aid and facilitate the attainment of expeditious determination of appeals, it is not every non-compliance therewith that may be fundamental and therefore fatal to the appeals. Non-compliance with the Rules which arose from the mistake of counsel and do not go to the jurisdiction of the court to adjudicate over an appeal would be treated as a mere irregularity because of the attitude of the court not to punish the parties for mistake of their counsel in the conduct of their cases before the court. – Lawal Garba, JCA. Eluwa v. Eluwa (2013)
Generally, the attitude of the appellate courts is that the essence of a ground of an appeal is to give adequate and reasonable information to the respondent in the appeal of what the complaint is against the decision of a lower court in order to enable him know and prepare for what to meet in the appeal. It is also to let the appellate court know clearly and precisely what the attack or complaint against the decision of a lower court it is called upon to consider and determine in the appeal. Once the information in a ground of appeal is adequate and leaves no doubt about what the Appellant’s complaint is against the decision of a lower court which he seeks the appellate to review by way of re-hearing, the essence of the ground has been met and the ground would be a valid and therefore competent ground of appeal. – Lawal Garba, JCA. Eluwa v. Eluwa (2013)
It should be the purposes of trial and proof, the Appellant’s petition and the Respondent’s cross petition are independent and separate claims to be determined by the High Court. The failure of one does not automatically translate into the success of the other because each would be decided on the basis of the evidence adduced in support thereof by the party who bears the legal burden of proof for it. For his petition, the Appellant had the initial burden of proof while the Respondent had the burden to prove the cross petition whether or not the Appellant satisfactorily discharged his own burden, if she was to succeed in it. – Lawal Garba, JCA. Eluwa v. Eluwa (2013)
It may be desirable for parties represented by counsel in the conduct of their cases in the superior courts to employ as far as possible, words and/or phrases used in the statutes under which they make claims set out therein, but an impression should not be created that it is a requirement of the law, non-compliance with which shall result in the dismissal of a party’s case even if the case was otherwise competent. – Lawal Garba, JCA. Eluwa v. Eluwa (2013)
I am constrained to say that it is an aberration in judicial procedure in Nigeria for a court to dismiss a party’s case on the ground that it is copious or/and that it was not properly presented by the party for that is prejudicial and manifestly inconsistent with the substantial rights of the party. Let me emphasize that the courts of law, particularly the superior ones established by the constitution, do not make a practice of routinely penalizing parties for errors or mistakes of procedure committed in the conduct of their case by counsel with orders which finally terminates the care before the court by way of dismissal. Very rarely and only in exceptional circumstances would such penalties be meted out on harpless parties. The time is long gone and forgotten about when the court on its own motion would penalize a party for non-compliance with Rules of procedure which does not occasion any real prejudice or even complained of by the other party to case in the determination of substantial rights in the case. Courts do not exist for the sake of discipline but for the sake of deciding controversies or disputes between the parties that come before them. – Lawal Garba, JCA. Eluwa v. Eluwa (2013)
Now, no matter how bad the language used and poorly the petition of the Appellant was presented before the High Court, would not with respect, mitigate let alone be an excuse for failure or refusal or abandonment of its primary duty to consider and decide the Appellant’s petition on the basis of the evidence presented before it by him, in particular, as the party that owed the initial burden of proof, and the Respondent on the merit. The High Court cannot properly in law, “avoid the enormous responsibility” imposed on it by the constitution and the MCA, to determine the petition of the Appellant on the merit and not the form in which the petition was presented on the ground that “the petition of the petitioner, together with the Reply he filed is quite copious, and “that the grounds upon which the petition is presented are buried within these expansive paragraphs”. – Lawal Garba, JCA. Eluwa v. Eluwa (2013)
Not to consider and decide the merit of a case presented by a party on the ground of copious nature of the case or difficulty in discerning the grounds upon which the case is based at judgment level or stage by a court, is to shut out that party and punish him for mistake made in the presentation of his case. In addition to not affording such a party a fair hearing in the case, such an action would amount to failure on the part of the court to discharge its primary duty of doing substantial justice in the case as required by law. – Lawal Garba, JCA. Eluwa v. Eluwa (2013)
Let me also say that the award of custody of children is not automatically tied to the success of a petition or cross-petition in matrimonial proceedings. In other words, it is not the law that a party who succeeds in the proceedings shall always be awarded the custody of the children of the marriage. The above factors and others which may be relevant in a particular case in the welfare of the children are always the parameters to be considered and used in the determination of the issue of custody of children. – Lawal Garba, JCA. Eluwa v. Eluwa (2013)