⦿ CASE SUMMARY OF:
ADAKU AMADI v. EDWARD N. NWOSU (1992) – SC
by PipAr Chima
⦿ NOTABLE DICTA
* EVIDENCE ON MATTER NO PLEADED
It is settled that evidence led on any matter not pleaded goes to no issue and ought to be disregarded when giving judgment. – Kutigi JSC. Amadi v. Nwosu (1992)
* A STATUTE WILL NKT APPLY TO CUSTOMARY LAW
Distinguishing these cases from the instant case, the Court of Appeal correctly held that the marriage between P.W.1 and the appellant was shown to be under native law and custom. In further distinguishing the cases, the Court of Appeal referred to the facts. In Rimmer v. Rimmer (supra) both husband and wife were wage earners. They bought a house in the name of the husband as the matrimonial home. The wife provided the deposit for the house. The rest of the purchase money was borrowed on the security of a mortgage from a building society in the name of the husband. Part of the principal of the mortgage money was repaid out of the housekeeping money provided by the husband. The remainder was repaid by the wife out of her money at a time her husband was on war service. The wife provided all the furniture for the home out of her own resources. When subsequently, the husband left the wife and the house was sold, the proceeds was shared equally between them on a summons under section 17 of the Married Women’s Property Act 1881 (U.K.). This was because it was not possible fairly to assess the separate beneficial interests of the husband and wife by reference to their contributions to the purchase of the house. In the instant case, the Married Womens’ Property Act 1881 (U.K.) is inapplicable since the marriage is governed by customary law. – Karibe-Whyte JSC. Amadi v. Nwosu (1992)
* FINDINGS OF FACT NOT DISTURBED BY APPEAL COURT
It is now well settled that this court will not disturb the findings of facts of two courts below unless there is manifest error which leads to some miscarriage of justice, or a violation of some principle of law or procedure. – Karibe-Whyte JSC. Amadi v. Nwosu (1992)
* SILENCE COULD AMOUNT TO ACCEPTANCE
It is a settled principle of law that where an adversary or a witness called by him testifies on a material fact in controversy in a case, the other party should, if he does not accept the witness’s testimony as true, cross-examine him on that fact, or at least show that the he does not accept the evidence as true, where, as in this case, he fails to do either, a court can take his silence as an acceptance that the party does not dispute the facts. – Nnaemeka-Agu JSC. Amadi v. Nwosu (1992)
Edward N. Nwosu
⦿ LEAD JUDGEMENT DELIVERED BY:
I. L. Kutigi, JSC
* FOR THE APPELLANT
– Mr Njemanze.
* FOR THE RESPONDENT
– Mr. Onumajulu.
⦿ CASE HISTORY
The respondent’s case as pleaded in his Amended Statement of Claim was briefly that he purchased the property and premises in dispute known as No. 179 Tetlow Road, Owerri, from its owner, one Godfrey F.A. Amadi for the sum of ₦140,000.00, Godfrey F.A. Amadi is or was the husband of the appellant herein and he testified for the respondent at the trial as P.W.1. The respondent traced his root of title to the said Godfrey Amadi and tendered a number of documents which included among others. The power of Attorney (Exh. A) and a Deed of Assignment (Exh.D) in respect of the property. Godfrey, the vendor, in his evidence confirmed the testimony of the respondent. He also gave cogent testimony of how he came to own the property in question through partition of family land and later developed it by erecting a building thereon. According to Godfrey after he had sold the property to the respondent, he used the money to develop another land at No. 33 Anokwu Street where he now lives. He said when he requested the appellant to move to the new building with him she bluntly refused and forcibly continued to occupy the property in dispute. The appellant on the other hand claimed that the property in dispute was family property allocated to her husband, Godfrey. F.A. Amadi, herself and their children. She also claimed to have contributed labour and sand to the building of the property and that she owned it jointly with Godfrey, her husband (P.W.1).
The plaintiff who is now the respondent claimed, inter Alia, in the Owerri High Court against the defendant who is appellant in this appeal as follows: “(a) A declaration that the plaintiff having purchased the buildings situate at and known as No. 179 Tetlow Road, Owerri from the former owner Mr Godfrey F.A. Amadi and having obtained a statutory Certificate of Occupancy in relation to the said property registered as No.50 at page 50 in Volume 86 of the Lands Registry in the Office at Owerri is entitled to the physical possession of the said 179 Tetlow Road, Owerri without any molestation from any quarters whatsoever.
Pleadings were filed and exchanged. The trial proceeded before Chianakwalam I. and judgment was duly delivered by him in favour of the respondent. The appellant was dissatisfied with the judgment of the trial court and so she appealed to the Court of Appeal where her appeal was dismissed. Still dissatisfied she has now appealed to this court.
⦿ ISSUE(S) & RESOLUTION
1. WHETHER THE HOUSE WAS built as a joint venture or not; and the court will look at the facts in order to decide the issue.
RULING: IN FAVOUR OF RESPONDENT.
i. The Cross-examination of pages 44 – 45 of the record showed that P.W.1 was not asked any question about any joint ownership or co-ownership of the property with the appellant. He was equally not asked any question about any contributions whether in cash or kind or sand or labour from the appellant. I have also closely read through the Statement of Defence filed by the appellant in the High Court. Nowhere therein did she plead any contributions for labour and sand. So that when she stated in her evidence on page 48 of the record that – “I paid for labour and sand when the house was built” She was clearly giving evidence on a matter which was not pleaded.
ii. She also ought to have given details and particulars of the contributions which would have enabled the court to decide whether or not she owned the property with P.W.1. She did not. In addition the appellant called no witnesses to prove that she contributed either labour or sand to the building. I think on a calm view of the pleadings and evidence the trial court was right when it found as a fact that the appellant did not make any contribution towards the building of the house and that it was the P.W. 1 who solely financed same.
iii. In addition the evidence showed that the land was partitioned to P.W.1 long before he got married to the appellant and that the marriage was performed under native law and custom.
iv. It is interesting to observe that the evidence of appellant under cross-examination was that she did not know when the house at 179 Tetlow Road was built. It is not surprising therefore that appellant in her evidence both in Chief and under cross-examination did not give details of her contribution to the building by payment for labour and sand. This is understandable as, she said; she did not know when the house was built.
⦿ ENDING NOTE BY LEAD JUSTICE – Per
⦿ REFERENCED (STATUTE)
⦿ REFERENCED (CASE)
⦿ REFERENCED (OTHERS)
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