John Phillip Okechukwu Tabansi V. Vivian Ifeoma Tabansi (2008)
LawGlobal-Hub Lead Judgment Report
STANLEY SHENKO ALAGOA, J.C.A.
This is an appeal against the judgment of Obidigwe J. of the High Court of Justice Otuocha in Anambra State in Suit No. OT/ID/2005 delivered on the 15th March 2006. The Appellant as Petitioner had sought for the following orders-
(a) A decree of dissolution of marriage between the Petitioner and the Respondent.
(b) Unlimited access to the child of the marriage until she attains the age of ten (10) years.
(c) Custody of the child of the marriage upon attaining the age of ten (10) years, the Petitioner’s house being her natural and traditional home and birthright.
(d) Access to the child of the marriage to be granted to the Respondent at the Petitioner’s house upon the child’s attainment of the age often years.
The Respondent by an answer and cross petition filed on the 24th May 2005 and amended on the 9th December 2005 sought for the following reliefs –
(a) An order dismissing the petition
(b) A decree of the dissolution of the marriage
(c) Custody of the child of the marriage
(d) Monthly maintenance of the only child of the marriage by the petitioner at the rate of eighty thousand Naira (N80,000.00) per month subject to variation due to inflation rate or price instability
(e) Return of the Respondent’s properties listed in the schedule to the answer and cross petition or alternatively, five hundred thousand Naira (N500,000.00) as appreciated value of the properties of the Respondent seized by the petitioner.
The matter went on to be heard with the Petitioner/Appellant giving evidence for himself and calling one other witness – PW 2.
The Respondent testified for herself and called no other witness in substantiation of her cross petition.
The trial Judge in his judgment dismissed the petition and granted the Respondent’s cross petition. Dissatisfied with this judgment, the Petitioner has filed Notice of Appeal dated the 30th March 2006 and filed same day which consists of six grounds of appeal and is contained on pages 100 – 105 of the Record of Appeal and the grounds only are reproduced shorn of the particulars.
GROUNDS OF APPEAL:
A. MISCARRIAGE:- The learned trial Judge misdirected himself, when in evaluating the evidence led, he held, “It was the PW2 who summoned the meeting of both families on 13/04/2005 at which meeting the Petitioner told them that he was no longer interested in the marriage and demanded his dowry. PW2 did not tell the Court of any effort by the families to bring back the respondent. The Respondent told the Court that in that meeting she told them that she was willing to go back to the petitioner if he would change: I hold that it was the Petitioner who deserted the Respondent.” And following from that dismissed the Petition and upheld the Cross-Petition.
B. ERROR-IN-LAW:- The Learned Trial Judge erred in law, when he held, “I therefore hold that notwithstanding the technical arguments of the Learned Counsel for the Petitioner that the Respondent failed to comply with order XIV RULE 4(1)(2)(4)(6)(7) and (8) of the Matrimonial Causes Rules, it is more convenient and proper to make an order for payment of monthly allowance for the welfare, education and upkeep of the child of the marriage” and thereby occasioned a miscarriage of justice.
C. MISDIRECTION: The learned trial judge misdirected himself, when he ordered thus, “The Petitioner shall pay to the Respondent the sum of Seventy Five Thousand Naira (N75,000.00) monthly for the education, maintenance and upkeep of the child, including feeding and medical treatment; provided that this figure shall be varied when the child enters into higher institution of learning, taking into consideration the currency situation at the time.” And thereby occasioned a grave miscarriage of justice”.
D. MISDIRECTION: The Learned Trial Judge misdirected himself, when he took into consideration, grossly irrelevant matters, in making the award of N75,000.00 (Seventy Five Thousand Naira) as monthly maintenance allowance of the only child of the marriage, which said grossly irrelevant matters influenced him greatly in his judgment, and thereby occasioned great injustice to the Petitioner.
E. ERROR-IN-LAW: The Learned Trial Judge erred in law when he ordered, “The Petitioner shall pay to the Respondent the sum of Seventy Five Thousand Naira (N75,000.00) monthly for the education, maintenance and upkeep of the child including feeding and medical treatment; provided that this figures shall be varied when the child enters into Higher Institution of learning, taking into consideration the currency situation at the time.”
And thereby occasioned a miscarriage of justice.
F. ERROR-IN-LAW: The Learned Trial Judge erred in law, when he ordered. “That the custody of the child of the marriage, Somtochukwu Tabansi, be and is hereby granted to the Respondent; provided that the Petitioner shall have the right to visit his child at the Respondent’s residence, and from age 10 the child may spend part of her long vacation with the Petitioner,” and thereby occasioned grave miscarriage of justice.
When this appeal came up for hearing on the 7th May 2008, Chudi Obieze counsel for the Appellant adopted and relied on the Appellant’s Brief of Argument dated 19th November 2007 and filed same day as well as the Appellant’s Reply Brief of Argument dated 21st January 2008 and filed same day and urged this court to allow the appeal. Chief O. Ugolo (SAN) with him S.N. Anya, adopted and relied on the Respondent’s Brief of Argument dated 19th December 2007 and filed on the 21st December 2007 and urged this court to dismiss the appeal and affirm the judgment of the trial High Court.
Arising from the six grounds of appeal contained in the Appellant’s Notice of Appeal, the Appellant at page 4 of the said Appellant’s Brief of Argument has formulated the following three issues for the determination of this court which three issues are also adopted by the Respondent as her own at page 2 paragraph 3.01 of the Respondent’s Brief of Argument. These issues which are also adopted by this court in the treatment of this appeal are as follows-
- Who as between the Petitioner and the Respondent deserted the other and if it was the Respondent whether the trial Judge was not wrong in dismissing the petition and entering Judgment for the Cross-Petitioner
- Whether the award of the sum of N75,000.000 (Seventy Five Thousand Naira) monthly for the education, maintenance and upkeep of the child including feeding and medical treatment, by the learned trial Judge, is justifiable and can be sustained by the law and evidence presented before the court?
- Whether the Petitioner and indeed any parent, is bound in law to maintain his or her child in perpetuity and was the learned trial Judge correct when he granted permanent custody of the child of the marriage to the Respondent?
I shall proceed with the first issue for determination by this court and it reads –
“Who as between the Petitioner and the Respondent deserted the other and if it was the Respondent whether the trial Judge was not wrong in dismissing the petition and entering judgment for the Cross Petitioner.”
The Petitioner/Appellant has submitted on this issue that he led evidence to the effect that the Respondent packed out of the matrimonial home on the 7th February 2004 behind the back of the Petitioner/Applicant and this piece of evidence was not challenged by the Respondent as the Petitioner/Appellant was not cross examined on that point. Petitioner/Appellant also said he led evidence of attempts he made to bring the Respondent back to the matrimonial home and he was not cross examined on this piece of evidence. His evidence according to him therefore stands unchallenged and the Respondent is deemed to have accepted it as true. Reliance was placed on the following cases GAJI v. PAYE (2003) 8 NWLR (PART 823) page 583 at page 905 paragraphs AC AKINWUNMI v. IDOWU (1980) 3 – 4 S.C. 108. LEAD WAY ASS CO LTD v. ZECO (NIG) LTD (2004) 11 NWLR (PART 804) page 316 at 329.
Petitioner/Appellant also submitted that his evidence as PW1 on the events that happened prior to the Respondent leaving her matrimonial home on the 7th February 2004 was not subjected to cross examination by the Respondent which unchallenged evidence showed that she abandoned her matrimonial duties and when she was challenged, she deserted the Petitioner and never came back. His evidence is therefore, he said, to be taken as true. Reliance was again placed on GAJI v. PAYE (supra). Appellant further submitted that the Respondent having not challenged the evidence led by the Appellant by cross examination it is not open under the law for the Respondent to lead evidence in her defence in an attempt to controvert the evidence presented by the Petitioner/Appellant, and the learned trial Judge was therefore wrong in law when he accepted the evidence of the Respondent that it was the Petitioner/Appellant that abandoned the
Respondent after she failed to cross examine the Petitioner/Appellant on that issue. Reliance was placed on GAJI v. PAYE (supra); AGBONIFO v. AIWEREOBA (1988) 1 NWLR (PART 70) page 325; (1988) 2 SCNJ 146. Petitioner/Appellant further submitted that PW 2 never told the court that the Respondent told the meeting of the 13th April 2005 which was a meeting summoned solely for the purpose of the formal dissolution of the marriage in accordance with NRI custom and not a conciliatory meeting, that she would like to go back to the matrimonial home and that the Respondent admitted to having packed out of the matrimonial home on her own. Appellant further submitted that where evidence given by a party to any proceedings was not challenged by the opposite party who had the opportunity to do so, the court of trial has a duty to act on the unchallenged evidence before it. He relied on LEADWAY ASS COY LTD v. ZECO NIG LTD (2004) 11 NWLR (PART 884) page 316 at p. 329 paragraphs A-C.
Respondent on her part has submitted that GAJI v. PAYE (supra) is a case on contract and has nothing to do with matrimonial proceedings. It is the Respondent’s contention that by virtue of S.114 of the Matrimonial Causes Act, a cross petition in law operates as a petition on its own and an application by the Petitioner/Appellant that would prevent the Respondent from leading evidence on her cross petition would be absurd. Respondent has further submitted that it is not the duty of an appellate court to reevaluate the evidence at the trial court. Reliance was placed on the case of ALABI v. ALABI (2007) 9 NWLR (PART 1039) 297 AT 355 – 356 PARAS H – A. Respondent has submitted that the Petitioner/Appellant appears to have forgotten that the Respondent filed a cross petition which operates as a petition of its own and as such the Respondent is at liberty to lead evidence to establish her cross petition and that contrary to his submissions the Respondent cross examined the Petitioner/Appellant on relevant issues. References were made to question and answer sessions by way of cross examination of the Petitioner/Appellant by the Respondent. Respondent submitted that a common ground of agreement is that there was desertion. The question is who was responsible for the desertion? Respondent’s contention is that it was the Petitioner/Appellant that deserted the Respondent and has made references to the evidence of the Appellant on that issue.
Petitioner/Appellant has submitted in his Reply Brief that GAJI v. PAYE (supra) cuts across all branches of law and is not limited to contract cases. Petitioner/Appellant has also submitted here that although the Respondent is entitled to lead evidence on her cross petition, she cannot refuse to join issues with Appellant upon his petition by way of cross examination regarding a material fact given in evidence and be allowed to lead evidence in proof of that fact in her cross petition.
It is common ground agreed to by the parties that there was desertion.
The question that this issue attempts to answer is simply this – who was responsible for the desertion? But before going on to answer that question, it is pertinent to state here that where a cross petition is filed by a Respondent, it is as good as a petition and a Respondent cannot in law be prevented from giving evidence on his or her cross petition. Appellant’s argument on this issue is replete with instances of failure of the Respondent to cross examine the Appellant on material issues and the logical inferences to be drawn from this. Respondent has referred to the question and answer session or better still the cross examination of the Petitioner/Appellant at pages 64 – 65 of the Record on page 3 of the Respondent’s Brief of Argument. I intend to reproduce so much of it as is relevant in the determination of this issue. For the avoidance of doubt, it is the cross examination of the Petitioner/Appellant (as PW 1) by the Respondent’s Counsel on Wednesday 27th July 2005 and it runs thus –
QUESTION -: On 9/10/2004 there was a meeting between your family and your inlaws because of your marital problem?
ANSWER -: Yes
QUESTION -: In that meeting you said that you would in no way accept back the Respondent?
ANSWER -: Yes.
QUESTION -: Now that the Respondent is here in court can you accept her to come back?
ANSWER -: No. I cannot.
QUESTION -: Will you accept her to join you in your car back to your house in Onitsha after today’s proceedings will you accept?
ANSWER -: No.
These are the ones referred to in the Respondent’s Brief of Argument at pages 64 – 65. More revealing is the cross examination at pages 61 – 62 of the records –
QUESTION -: Would you in my (sic) case be ready to accept your wife back?
ANSWER -: No.
QUESTION -: Do you still feel or have the love and affection you had on her when you married her?
ANSWER -: No.
QUESTION -: What has she done to you that you cannot forgive?
ANSWER -: She has succeeded in straining my image. P.W. 2 Emmanuel Ogbunuo an Accounting officer attached to Tabansi Motors who described himself as a middleman at the marriage of the Petitioner and the Respondent and the only other witness called by the Petitioner/Appellant said in evidence at page 62 of the Records’ “On the 13th April 2005 the Petitioner told me he was no longer interested in the marriage.” The evidence PW 1 and PW 2 at the court below should be compared with that of the Respondent at page 73 of the Records where she said as follows, “Since 7th February 2004 the Petitioner had never asked me to come back to him. Family meetings were fixed and cancelled until 9th October 2004 when I was asked whether I was interested in marrying him and I said yes but when he was asked he said that he was no longer interest in marrying me. So the meeting adjourned. If he approaches me to come back and he is ready to change I will go back to him.”
There is no evidence on the part of the Petitioner/Appellant countering this by way of cross examination. There can be no doubt therefore that the trial Judge was right in his conclusion that it was the Petitioner/Appellant that deserted the Respondent. I have no hesitation therefore in resolving issue No. 1 in favour of the Respondent against the Petitioner/Appellant.
Issue 2 is whether the award of N75,000.00(Seventy five thousand naira) monthly for the education, maintenance and upkeep of the child, including feeding and medical treatment, by the learned trial Judge, is justifiable and can be sustained by the law and evidence presented before the court. This issue was formulated from Grounds B, C and D of the Notice and Grounds of Appeal.
Petitioner/Appellant has made reference in his Brief of Argument (page 8 paragraph 6.2.1) to paragraph 5(d) of the Respondent’s Amended answer and cross petition wherein the Respondent prayed for “monthly maintenance of the only child of the marriage by the petitioner at the rate of N80,000.00(Eighty thousand) naira per month subject to variation due to inflation rate or price stability” and has submitted that by virtue of order XIV Rule 4 (1) (2) (4) (6) (7) and 8 of the Matrimonial Causes Rules the Respondent was expected to comply with certain conditions, plead certain facts and lead certain evidence in order to be granted the prayer she is seeking and that the Respondent completely failed to comply with any of the provisions of the said order XIV Rule 4 of the Matrimonial Causes Rules, a fact which the court ignored preferring to treat it as a technical argument which should not disturb the substance of the claim and that in spite of this deficiency the learned trial Judge still went ahead and ordered that the petitioner shall pay to the Respondent the sum of N75,000 (Seventy five thousand) naira monthly for the education, maintenance and upkeep of the child including feeding and medical treatment provided that this figure shall be varied when the child enters into higher institution of learning taking into consideration the currency situation at the time. He went on to submit that this order was made by the learned trial Judge inspite of the evidence led by the Petitioner/Appellant that he earns N80, 000.00 per month as salary from Tabansi Motors Limited. Respondent, he said, failed to produce any evidence on the alleged million naira monthly income that she claimed the Petitioner/Appellant earns at Tabansi Motors and that the Respondent was confusing the income and business of Tabansi Motors Ltd with the income of the Petitioner. He further stated that in awarding N75,000.00, the learned trial Judge failed to consider the fact that the Petitioner/Appellant has to live, remarry and raise children and will not be able to do that on N5000 monthly that will be left in his income after the award. Appellant/Appellant went further to say that exhibits C – C5, E, F, G – G6 relied upon by the learned trial Judge in making the award which the Judge referred to as useful guide for assessment did not reflect the true position of things and were misunderstood by the learned trial Judge. Appellant went further to say that the upkeep of the child of the marriage was the joint responsibility of both parents and that although the Respondent did not plead or give evidence of her income, facts elicited from her during cross examination were indicative of her financial buoyancy. He further stated that the learned trial Judge in arriving at the award of N75,000.00 a month took into consideration irrelevant factors such as the social standing of the child as princess derived from his own position as prince and that princes and princesses in Anambra State were not necessarily rich people and that the child of the marriage can only attend schools and hospitals that are within the financial capacity of the Petitioner and Respondent.
The Respondent has drawn the attention of this court on this issue (Issue No 2) to the provision of order XXI Rules 2, 3 and 4 of the Matrimonial Causes Rules, Laws of the Federation of Nigeria 2004 which are to the effect that non compliance with these Rules will not render the proceedings void. She also submitted that the courts are increasingly turning away from the era of technicalities to do substantial justice where the courts would not be slaves to the Rules. Reliance was placed on the following authorities – UNEGBU v. UNEGBU (2004) 11 NWLR (part 884) 332.
U.T.C. (NIG) LTD v. PAMOTER (1989) 2 NWLR (PART 103) 244; 296 ATTORNEY GENERAL OF BENDEL STATE V. AIDEYAN (1989) 4 NWLR (PART 118) 648, 681.
Respondent went on to submit that the lower court was right to put the welfare of the child above technical consideration in making the award of N75,000.00 stating that the case of DAMULAK v DAMULAK (2004) 8 NWLR (PART 874) 151 is quite instructive on this point. Respondent went on to further submit that even though the Petitioner/Appellant had stated that he cannot pay N80,000.00 monthly for the maintenance of the child as that sum is his monthly salary and though he denied ownership of any other transport company, P.W. 2 had testified under cross examination that the Petitioner/Appellant in fact has his own transport company apart from being
a director in Tabansi Motors. Respondent made reference to the evidence of the Petitioner/Applicant to the effect he stopped his wife, a banker from working which is indicative of the fact that he is capable of shouldering the financial responsibility of not only the child but the Respondent herself. Reference was made to HAYES v. HAYES (2003) 3 NWLR (PART 648) 276 at 294 on this point. Respondent went on to submit that at common law a man has a duty to maintain his wife and children. It was also the submission of the Respondent that with respect to award in matrimonial causes, the court considers the economic trends as well as the standard of living that the parties were accustomed to before the matrimonial proceedings. NANNA v. NANNA (supra) was referred to. She submitted further that the exhibits earlier referred to were carefully considered by the court before arriving at its assessment. She went on to say that the Petitioner/Appellant had admitted paying the school fees and medical expenses of the child and wondered whether he could not continue to do so.
In his Reply Brief the Petitioner/Appellant submitted that the court making a decision on the maintenance of the child ought to have determined the income of the Petitioner/Appellant and Respondent and that the failure to do so was wrong. He relied on UNEGBU v. UNEGBU (2004) 11 NWLR (PART 884) 332. In doing so the court should have relied only on variable facts. Reliance was placed on the case of NANNA v. NANNA (2006) 3 NWLR (PART 966) 1.
Perhaps the salient aspect to be noticed under order XXI Rule 2 of the Matrimonial Causes Rules, Laws of the Federation of Nigeria 2004 is its liberal attitude to non compliance with the Rules which non compliance is not to render the proceedings void.
Rules 3 (a) and (b) are to the same effect also and provide as follows-
(a) A Court may at any time upon such terms as the court thinks fit relieve a party from the consequences of non compliance with these Rules with a rule of practice and procedure of the court applicable to the proceedings or with an order made by the court.
(b) A court may upon such terms as the court thinks fit, dispense with the need for compliance by a party with any provision of these Rules.
This flexibility is in line with the present attitude of the courts not to be hampered by technicalities in its quest for substantial justice.
There is a plethora of cases on this subject matter especially by the apex court. The education, maintenance and upkeep of a child are serious and sensitive matters which should not be hamstrung by technicalities. What is best for the child should be the paramount consideration of the court. The Petitioner has submitted that the upkeep of the child is the responsibility of both parents. At common law it is the responsibility of the man to take care of his family. In fact in this particular instance there is evidence that the Petitioner/Appellant stopped his banker wife from working in the bank with a promise to get her some thing else to do. There is no evidence that he has carried out this promise. How then can the Respondent be made to contribute meaningfully towards the upkeep of the child? The Petitioner/Appellant says he is paid N80,000 a month as salary at Tabansi Motors Ltd. That is as much as he is ready to disclose and no more but PW 2, a witness brought by him has said otherwise under cross examination. PW 2 Emmanual Ogbunuo should know. From evidence adduced at the trial not only does he also work at Tabansi Motors same place as the Petition/Applicant, he is also from Nri the same place as the Petitioner/Appellant and was middleman at the marriage of the Petitioner and the Respondent. He has been involved in no small way in the relationship between the Petitioner/Appellant and the Respondent and even when the Petitioner/ Appellant had made up his mind not to continue with his marriage to the Respondent, it was PW 2 that he first told. PW 2 has stated under cross examination that the Petitioner/Appellant also has his own transport company aside from his involvement with Tabansi Motors Ltd. Nothing has shaken that piece of evidence. A court trying to get to the root of his actual earnings would therefore take his evidence that he earns N80,000.00 a month at Tabansi Motors with a pinch of salt. The court must look else where to try to get at the true income of the Petitioner/Appellant. The learned trial Judge had made this assessment, “I must say that exhibits C – C5, E, F, G – G6 provided useful guide for assessment. For instance exhibits G5 and G6 were receipts for medical treatment for November 2004 and they amounted to N10,500. Exhibits C – C5 are purchases for the child. C2 was for the month of June 2004 – N22,000.00. C3 was for December 2004 for N25,300. Exhibit E was school fees for one term N52,000.00 It is naturally expected that as the child grows older her needs will correspondingly increase.” Appellant/Applicant has among others queried the sum of N52, 000.00 a month as fees as ludicrous.
Some private schools these days are known to charge much more than that. The court has also taken the standard of living that the child is used to by virtue of the position of the Petitioner/Appellant into consideration.
From evidence which has not been punctured by cross examination the child is not a completely medically fit child and needs special medical attention which only private medical hospitals are known to provide at exorbitant cost. I therefore think the learned trial Judge was right in his award of N75, 000.00 monthly for the education, maintenance and upkeep of the child and I will not disturb this finding.
Issue 3 is as to whether the Petitioner and indeed any parent is bound in law to maintain his or her child in perpetuity and was the learned trial Judge correct when he granted permanent custody of the child of the marriage to the Respondent?
This issue was formulated from Grounds E and F of the Notice and Grounds of Appeal. Petitioner/Appellant has submitted that by virtue of section 70(4) of the Matrimonial Causes Act Cap 220, Laws of the Federation of Nigeria 1990, the power of the court to make an order with respect to the maintenance of children of the marriage shall not be exercised for the benefit of a child who has attained the age of 21 years, and despite this the learned trial Judge while ordering the maintenance of the child of the marriage did not stipulate when the maintenance of the child shall come to an end, which according to him is an order in perpetuity. He went on to say that the provision for University education is not the duty of a parent but that of the Federal Government by virtue of section 18 of the 1999 Constitution. The learned trial Judge he said therefore erred having not stipulated a time limit for the order of maintenance. He further submitted that the order made by the trial Judge on custody of the child amounts to a permanent order that the Respondent keep the child which does not take into account the Ibo custom of the parties which stipulates that the child of the marriage belongs to the man. Along with that is the fact that the Respondent is a film producer and the nature of that job has a corrupting influence on the child. The learned trial Judge also did not take into consideration the fact that the Respondent being a young woman of thirty three could remarry and her new husband may not want to attend to the child or even abandon her or she could be abandoned to her mother’s people to her detriment.
Respondent has submitted that section 70 (4) of the Matrimonial Causes Act does not apply to this case but is with respect to a child who has attained the age of 21 years. She submitted that the tribe of the parties has nothing to do with the custody of children. She referred to matters like the ages of the children, education, welfare and general up bringing of the children, accommodation and conduct of the parties as paramount to a court’s determination of custody of children and submitted these were the conditions considered by the court in arriving at its decision on custody of the child of the marriage.
It is a known fact that except the conduct of the wife is morally reprehensible it is better in an estranged marriage such as this for the child of the marriage more so if that child is a girl and of so tender an age to be left in the care and custody of the wife. The learned trial Judge took this into account together with how the child is handled as she approaches puberty. The Petitioner/Appellant being a man is a complete novice in this area of a girl child’s up bringing. Issue NO.3 must also be resolved in favour of the Respondent.
In all the Appeal fails and is dismissed and the judgment of Obidigwe J. delivered on the 15th March 2006 in Suit No. OT/ID/2005 is hereby affirmed.
I however make no order as to costs.
Other Citations: (2008)LCN/2858(CA)
