Esther Mueller V. Werner Mueller (2005)
LawGlobal-Hub Lead Judgment Report
JOHN AFOLABI FABIYI, J.C.A.
A
s 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.
In respect of the appeal filed against the judgment of 20/12/99, the three issues couched for it’s determination read as follows:
“(i) 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.
(ii) Whether the learned trial Judge was justified in law, in ordering the Appellant to return the two generators to the Respondent, whereas the respondent had admitted the return of the said generators.
(iii) Whether the learned trial Judge was justified in law, when she failed to consider the Appellant’s cross-petition.”
In respect of the appeal against the ruling handed out on 15-2-2000, the issue for determination, as distilled, reads as follows;-
“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.”
On behalf of the Respondent, the two issues formulated for a due determination of the appeals read as follows:-
“1. Was the trial Judge right in the orders made on 20/12/99, including the order dissolving the marriage having regard to all the evidence before the honourable court?
2. The subsequent order made on 15-02-2000 to correct an omission in the judgment – was it proper and based on available evidence? If not, what is the Proper order in the circumstances?”
Let me say it without any equivocation that it is clear beyond peradventure that the marriage, which had the semblance of a farce, had broken down irretrievably to the knowledge of both parties. No collusion in filing the petition and cross petition was pinpointed by the learned trial Judge. I cannot also pinpoint any collusion to put the marriage at an end by the parties who appeared to be incompatible.
The Appellant was a cleaner with the hotel where the Respondent, a rig operator and a German citizen, lodged when they met. This was before the marriage which later became ill-tuned and clearly incongruous. The marriage was put to an end via an order of decree nisi by the learned trial Judge. It was a real good riddance and none of the parties raised any finger of protest in this respect. The ferocious complaint relates to the partition of matrimonial property, as ordered by the learned trial Judge. This shall be dealt with anon.
Before then, let me treat issue No. 2 formulated on behalf of the Appellant. It is 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.
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 Respondent’s Counsel, rightly in my considered view, conceded the point. He asserted with force that ‘right away, speaking truthfully the Appellant had since returned the two generators to the respondent’s former company which claimed it during the pendency of the action.’
He then urged that the order relating to the return of the two generators by the Appellant to the Respondent be set aside.
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. 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.
It is now time to treat the contentious issue relating to partition of ‘matrimonial property.’ Whereas, the Appellant maintained that No. 16 Rumuibekwe Lane, with structure thereon, belongs to her solely as she acquired it through her sweat during the subsistence of their marriage, the Respondent on his own part, maintained that it is a joint family property for which he provided most of the finance, while the Appellant supervised the construction jobs. He maintained that the property should be equitably partitioned equally for the parties.
On behalf of the Appellant, it was contended that the real judgment is terse and that there was no evaluation of the evidence adduced by the parties before the learned trial Judge made findings and conclusions.
Learned Counsel submitted that in a civil case where the parties have adduced evidence before a trial Court, that court is bound to evaluate such evidence before arriving at any finding of fact. He referred to the case of MOGAJI v. ODOFIN & ORS (1978) 4 S.C. 91 at p. 94.
Learned Counsel felt that findings of fact and conclusions made without evaluation of evidence were perverse. He cited the case of AKINTOLA v BALOGUN (2000) 1 NWLR (Pt. 642) 532 at p. 549.
Learned Counsel strenuously contended that the finding of fact made by the trial court that Appellant was a woman of straw who could not have acquired the property on her own was not based on the case of the parties. He felt that the stated finding of fact was speculative and perverse. He cited the case of OVERSEAS CONSTRUCTION LTD v CREEK ENTERPRISES LTD & ANOR. (1985) 3 NWLR (Pt. 13) 407 at p. 414.
Learned Counsel further submitted that since the learned trial Judge failed to carry out proper evaluation of evidence in respect of the property in dispute before arriving at conclusions made, this court has the power to evaluate the evidence and come to a just decision. He referred to ONWUCHURUBA v ONWUCHURUBA (1993) 5 NWLR (Pt. 292) 185 at pp. 199-200.
Learned Counsel for the Respondent submitted that in accordance with the tradition of the Bar and especially as a minister in the temple of justice, it is clear that though the learned trial Judge fully set out and considered the whole evidence of the Parties and their witnesses, no evaluation of the evidence adduced one for one was done by the trial court; that is speaking truthfully. He felt that the only evaluation done at the end by the learned trial Judge was plausible as conclusions and orders were based on the evidence before the trial court. He felt that a good judgment need not be verbose.
Learned Counsel submitted that in appraising evidence adduced by a trial court, it is not necessary to write it in the judgment that evidence has been put on an imaginary state. He cited the case of INCAR LTD & ANOR. v. ADEGBOYE (1985) 2 NWLR (pt.8) 453.
Learned Counsel submitted that despite the non-evaluation in detail, the trial court duly considered the whole evidence and arrived at acceptable findings of fact and conclusions. He felt that the orders made were valid and proper and that there was no miscarriage of justice whatsoever. He craved that this court should re-evaluate and make correct findings. He cited the cases of OLUBODE v. SALAMI (1985) 2 NWLR (Pt.7) 282 at p.298); EBBA v. OGODO (1984) 4 S.C. 84 at p. 98, (1984) 1 SCNLR 372.
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. See ATOLAGBE V. SHORUN (1985) 1 NWLR (PT.2) 360; NARUMAL & SONS LTD V. N.B.T.C. LTD (1989) 2 NWLR (PT.106) 730; AKINLOYE V. EYIYOLA & ANR (1968) NMLR 92; OKAFOR V. EZE IDIGO (1984) 1 SCNLR 481.
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. See NWOSU V. BOARD OF CUSTOMS & EXCISE (1988) 5 NWLR (PT.93) 225.
I put the guidelines in mind and note that the evidence adduced in respect of partition of ‘matrimonial property’ is basically documentary and where oral evidence is called into action, such has nothing to do with demeanour of any witness.
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.
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. The Respondent admitted that the property was purchased in the Appellant’s name and that she supervised construction works thereon. It must be noted that the properties were acquired in Appellant’s marriage name. Such was not out of ordinary, as earlier on, the rented apartment of the couple was also in the name of the Appellant as extant in Exhibit E. As huband 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. Refer to RIMMER v. RIMMER (1952) 2 All E.R. 863 at 869; Halsbury’s Law of England 4th Edition Art 1065 at p. 491; COKER v. COKER (1964) L.L.R. 188 and EGUNJOBI v. EGUNJOBI (1974) 4 ECSLR 552 at 561 all cited and/or referred to by learned Counsel for the Respondent.
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.
Each of the parties was a petitioner in his or her own right. Each of them has the onus to prove his or her assertion. This is the tenor of the provision of Section 135 of the Evidence Act. It is clear that when the evidence of the parties is put on an imaginary scale, that of the Respondent must have an upper hand. Refer to MOGAJI v. ODOFIN (1978) 3 SC 91 at pp. 93-94; AROMIRE v. AWOYEMI (1972) 1 ALL NLR (Pt.1) 101; BELLO v. EWEKA (1981) 1 S.C. 101.
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.
I strongly feel that the learned trial Judge had all the above in her mind, when she concluded at page 138 of the record that –
“The finance for the land and construction definitely came from the petitioner and since they were married, it is only fair that the entire property be partitioned… In truth, the version proffered by the petitioner as to how the properties were acquired and for what purpose are more probable than that of an unreliable person like the 1st Respondent.”
I am of the strong view that the conclusion reached is plausible. The Appellant should be told to go and tell her story to the Marines.
As well, learned Counsel for the Appellant must now realize that brevity is an art. Only the ingenious can comprehend it with adequate precision. A judgment should be assessed by its quality and not by its length. Let me also say it that adequate findings of fact should be made to lead at balanced conclusions.
I need to say it that, it is not correct that the Appellant’s cross petition was not considered. Indeed, she prayed for dissolution of the marriage. And same was granted via an order of decree nisi. She claimed N500,000 for maintenance but failed to lead any iota of evidence on same. The learned trial Judge discountenanced same. I do not see how the Appellant can be granted any award for her maintenance. After all, she maintained that she makes up to N20,000 a day from their ‘mutual’ business.
In short, issues 1 and 3 postulated on behalf of the Appellant are resolved against her and in favour of the Respondent.
I now move to the second appeal in respect of the ruling handed out by the learned trial Judge on 15-2-2000. In that ruling, the judgment entered on 20-12-99 was amended in favour of the Respondent. The issue formulated in this respect, based on the lone ground of appeal, reads as follows:
“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.”
On behalf of the Respondent the issue formulated is reproduced again as follows:
“The subsequent order made on 15-02-2000 to correct an omission in the judgment was it proper and based on available evidence? If not, what is the proper order in the circumstance?”
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.
The learned trial Judge further decreed ‘that undeveloped portion of the disputed land is hereby ordered and granted to the petitioner.’ The Respondent who sought to alter the judgment should in the circumstance invoke such appellate jurisdiction as may apply. Refer to MINISTRY OF LAGOS AFFIARS MINES & POWER & ANOR v. CHIEF AKIN-OLUGBADE & ORS (1974) 1 All NLR (PT. 2) 226 at 755. To my mind, the error discovered was not such that could be corrected via the slip rule. See J.C. LTD v. EZENWA (1996) 4 NWLR (Pt.443) 391 at p.411.
I strongly feel that the appeal in this respect is meritorious and should be allowed as the lone issue is resolved in favour of the appellant. The ruling delivered on 20-2-2000 is hereby set aside.
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.
In sum, two of the three houses on the land as ordered by the learned trial Judge should go to the Respondent. The Appellant should have the building with business centre and salon as well as the undeveloped portion of the land. Order in respect of return of two generators by the Appellant to the Respondent is set aside. Order in respect of decree nisi which dissolved the marriage remains inviolate.
In effect, the appeals, succeed in part. In the prevailing circumstance of the appeals, each party should bear his or her own costs. I order accordingly.
Other Citations: (2005)LCN/1854(CA)
