Frederick O. Negbenebor V. Eudora O. Negbenebor (1971)
LawGlobal-Hub Lead Judgment Report
SOWEMIMO, J.S.C.
In the originating summons suit M/3/66 filed by the applicant on 19th August, 1966, at the Benin High Court of the Mid-Western State, she prayed the court of the following reliefs:
(i) 100 monthly for her maintenance including rents from 1st October, 1965.
(ii) Maintenance (school fees, clothing and other necessaries) of the three infant children of the marriage as may be just.
(iii) That the respondent be ordered to pay to the Lagos University Teaching Hospital the sum of 370 due on the
hire-purchase of her car No. LH 3173.
(iv) and that he is further ordered to secure such payments.
The learned trial judge after considering the affidavits filed by the parties, and the oral evidence called by them found that the respondent had willfully neglected to maintain the applicant and the three children of the marriage on the basis of respondent’s acts of adultery and cruelty; having held that the respondent committed adultery with at least two women and treated the applicant and her three children in a manner amounting to cruelty.
On the claim for maintenance the learned trial judge based his assessment on the “assets” of the respondent and these were the value of a building, referred to as the Ikpoba House, as 6,000Pounds, 1,260Pounds (net salary), 350Pounds (savings) and 300Pounds “value” of private practice. The total of the assets therefore came to 7,910Pounds. He also found as a fact that the income or salary of the applicant was 456Pounds per annum. The learned judge on the basis of the assets of the respondent and the income of the applicant assessed the maintenance payable thus:
“Taking into account the applicant’s salary of 456Pounds per annum, one third of the joint income is 1,332Pounds.134d. This works out as roughly 112Pounds per month, which sum is still higher by 312Pounds than that being asked for by the applicant.
Employing the figure of 3110 as a guide and bearing in mind the order which I shall hereafter make as to the custody of the children, I order that the respondent do pay or cause to be paid to the applicant herein as from 2nd October, 1965 maintenance for herself during their joint lives until further order at the rate of 320Pounds per annum free of tax, the said sum to be payable monthly at the monthly rate of 360Pounds.”
He then proceeded to order that the respondent should have custody of the two older children and the applicant the youngest child. Another order was made for the maintenance of the youngest child which he fixed at 360Pounds per annum free of tax as from the 2nd October, 1965. The learned trial judge also made orders of payment of arrears of maintenance to the applicant in respect of herself and the child, for which she was granted custody, in the sums of 1,202Pounds and 390Pounds respectively for the period commencing 2nd October, 1965. The respondent was also ordered to refund to the Lagos University Teaching Hospital the sum of 320Pounds.
The respondent has appealed to this court. Nine grounds of appeal were by leave of the court filed in substitution for the one ground of appeal originally filed. At the hearing only five were actually argued. These were:
“2. The trial judge erred in law in basing the assessment of the appellant’s income on the value of his house when there was no evidence that the house was built from his earnings.
- The learned trial judge erred in law in assessing the maintenance due to the applicant on one third of the respondent’s assets instead of one third of their joint incomes as disclosed by the evidence.
- The maintenance awarded to the applicant/respondent is excessive having regard to applicant’s income.
- The learned trial judge erred in law in ordering the payment of arrears of the maintenance awarded to the applicant/respondent and their daughter Gloria from the date when the applicant left the matrimonial home, that is to say, 2nd October, 1965.
- The learned trial judge erred in law in ordering the appellant to pay to the Lagos University Teaching Hospital when the LUTH was not a party to these proceedings.
In arguing the first ground counsel for the appellant contended that throughout the proceedings in the lower court there was no evidence that the Ikpoba House was built from the earnings or income of the respondent, and the source of the money used in its erection was never made an issue for determination in that court. There was no evidence that any income was derived from the house. The learned trial judge was therefore in error in determining the value without sufficient evidence and then proceeded to take an arbitrary figure of 3,000Pounds as part of the value of the house that he considered as assets of the respondent in ascertaining the maintenance payable to the applicant. How was the house built Had it been completed Was any loan raised in building the house Who was the contractor These are some of the questions the answers to which would have enabled the learned trial judge to decide whether the value of the house was a matter that could be considered in determining the income of the respondent. Indeed it is clear to us that the learned trial judge was in error in the manner in which he treated the matter of the house as part of the assets as distinct from respondent’s income which is the basis on which assessment of maintenance is made.
Grounds 3 and 4 were argued together. The learned trial judge in considering the issue of maintenance said inter alia:
“There seems to be no hard and fast rule for allotting the amount payable as maintenance. Permanent maintenance is generally allotted on the basis of one third of the joint income of the parties, less the wife’s income.”
This we agree correctly sets out the principle applicable in assessment of maintenance see Rayden on Divorce 10th Edition Page 808 paragraph II. But the learned trial judge after setting out that the basis of assessment must be either on the income of the husband alone where the wife has no sources of income, or where she has, then the joint income, proceeded to consider matters other than income. First he took into consideration the value of a house and next a credit account in a bank. It is patently wrong either in con or appellation to describe these two items as income. The learned trial judge set out the basis of his assessment thus:
“On the basis, the assets of the respondent will be 3,000Pounds (half value off ikpoba House) plus 1,260Pounds (net salary) plus 350Pounds (savings) plus 300Pounds (value of private practice) making a total value of 4,910Pounds.
Taking into account the applicant’s salary of 456Pounds per annum, one third of the joint income of the parties less the applicant’s income is 1,332Pounds.134d. This works out as roughly 110Pounds per month, which sum is still higher by 312Pounds than that being asked for by the applicant.”
It is obvious that the learned trial judge had confused the basis of the assessment which should be on respondent’s income as distinct from his assets. The learned trial judge referred to the assets of the husband as totaling 4,910Pounds but proceeded to base his assessment on a third of the joint income of both parties. Strictly speaking, the income of the husband is his salary of 1, 260Pounds and his earnings of 300Pounds per annum on his private practice. His total income is therefore 1,560Pounds. The wife’s income is 3456 so that a third of the joint income of the two less the wife’s income will be 218Pounds per annum which is 1,834Pounds. The appellant’s counsel has conceded that maintenance be fixed at the figure of 320Pounds monthly which is 3240Pounds per annum. It is clear that if the learned trial judge had kept to the correct principle of assessment, which he himself had earlier on set out, he would definitely have come to the figure which we have arrived at above, i.e. 218Pounds per annum.
Since the appellant had conceded maintenance to be fixed at 3240Pounds per annum, we shall set aside the learned trial judge’s order for applicant’s maintenance fixed at 369Pounds per month and substitute instead 320Pounds per month. In making the orders for maintenance for the applicant and the youngest child, the date of commencement was put down by the learned trial judge as from 2nd October, 1965, which was the date the applicant left the matrimonial home. The portion of the judgment of the learned trial judge dealing with the arrears to be paid reads:
“There is evidence that respondent had voluntarily paid the sum of 478Pounds as maintenance to the applicant. The respondent should receive credit for this sum. The accumulated arrears of maintenance payable to the applicant now stands at 1,202Pounds while that payable to her on account of Gloria stands at 390Pounds.”
The order for payment of maintenance was made under section 23(1) of the Matrimonial Causes Act, 1950. It was held in Piggott v. Piggott (1957) 3 All E.R. 432 that an order requiring a husband to make periodical payments under the section, may be retrospective to the date on which the wife’s originating summons was issued. Hodson L.J. in the judgment said inter alia at page 435 as follows:
“At the end of the case, owing to the delays which had occurred, the question arose as to the date from which the order should run, and the commissioner ordered that it should, run from the date of the hearing before him. In my view (and I think that there really has been no contest in this court on this matter) there is jurisdiction under section 23 to make the order date back to the issue of the summons.”
The originating summons in this case was issued on 19th August, 1966, and therefore the date for the payment of the maintenance should commence from that date. For this reason the learned trial judge was in error in fixing the commencement date as from the date the wife left her husband which was 2nd October, 1965. This disposes of ground 7 of the grounds of appeal.
Before the wife came to join the husband in Benin city she had obtained a loan from the Lagos University Teaching Hospital with which she purchased a car. At the time she joined her husband there was an amount of 270Pounds balance outstanding which the respondent had agreed to refund to the LUTH authorities but which he had failed to honour. No evidence was led before the learned trial judge as to the necessity for the respondent to own a car. It was not part of the maintenance she claimed. The learned trial judge did not consider that all that had happened was a matter between the appellant and the LUTH. At best it might be a breach of contract but that was a matter that did not concern the applicant. The learned trial judge referred to the submission made before him that the applicant was not a party to the contract or in the alternative that the claim could be cognisable if regarded as a claim for maintenance. He then proceeded to refer to authorities dealing with the question of what is “reasonable maintenance”, and without reference to the facts before him and the issues raised the learned trial judge concluded thus:
“In my view, not only does the applicant’s case fall for consideration under the above quoted authorities, but the entire circumstances of the case provide ample consideration in support of the respondent’s undertaking to pay the balance of 270Pounds on the applicant’s car to render such undertaking enforceable at the suit of the Lagos University Teaching Hospital. I would therefore hold that claim (iii) is competent in this application and I accordingly order that the respondent do pay to the Lagos University Teaching Hospital the sum due on the hire purchase of the applicant’s car.”
In Hohler v. Aston (1920) 2 Ch. 420 at page 425 Sargant J. stated with regard to the rights of parties to a contract thus:
“The third parties, of course, cannot themselves enforce a contract made for their benefit, but the person with whom the contract is made is entitled to enforce the contract.”
The statement of the law was quoted with approval in the judgment of the House of Lords in Beswick v. Beswick (1967) 2 All E.R. 27 by Lord Reid at page 1208. Even the learned trial judge in this case seemed to accept the view in the portion of his judgment in italics above but refused to apply it. In Volume 8 Halsbury’s Laws of England (3rd Ediction) at page 66 paragraph 110 the learned authors under the head “strangers to contract” stated thus:
“As a general principle a contract only affects the parties to it, and cannot be enforced by or against a person who is not a party, even if the contract is made for his benefit and purports to give him the right to sue, or to make him liable upon it. The fact that a person who is a stranger to the consideration of a contract stands in such near relationship to the party from whom the consideration proceeds that he may be considered a party to the consideration does not entitle him to sue upon the contract.”
This being the law the learned trial judge was clearly in error in ordering the refund of 270Pounds to Lagos University Teaching Hospital. This disposes of ground 8 of the appeal.
In the result appeal is allowed. The judgment of the lower court is set aside with the costs awarded to the applicant. The following orders are made:
- The applicant in suit M/23/1966 is granted maintenance of 3240Pounds per annum i.e. 320Pounds monthly.
- The infant child whose custody was granted to the applicant will receive 360 per annum as maintenance.
- Arrears of maintenance should be in respect of (1) and (2) and should commence from 19th August, 1966 the date the originating summons in this case was issued.
- The appellant shall be awarded 15 guineas as costs. And this will be the judgment of the court.
There will be costs in this court in favour of the appellant assessed at 62 guineas.
Appeal allowed.
Other Citation: (1971) LCN/1166(SC)
