Mrs. Fidelia Ejiuwaemeonu Okoro V. Mrs. Comfort Oluchi Okaome & Anor (2016)
LawGlobal-Hub Lead Judgment Report
UZO I. NDUKWE-ANYANWU, J.C.A.
This is an appeal against the judgment of the High Court of Lagos State delivered on the 16th day of July, 2010 by Hon. Justice A. O. Williams.
The 2nd Respondent in this appeal who was the Petitioner at the trial Court by his petition dated 9th May, 2003 sought for a decree for the dissolution of the marriage solemnized on 14th November, 1992 at the Redeemed Evangelical Mission [TREM], Festac Town, Lagos between him and the 1st Respondent who was the Respondent and Cross-petitioner on the following grounds contained in paragraph 9 of the petition which states:-
“The facts relied on by the Petitioner as constituting the ground specified above are follows:
That the said marriage has broken down irretrievably in that since the marriage, the Respondent has behaved in such a way that the Petitioner cannot be expected to live with the Respondent.
Particulars
a) The Respondent was always disobedient to the Petitioner claiming that as the one officially allocated their place of residence by her employers that she can do whatever she wants.
b) The
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Respondent was always quarrelsome and hot tempered with no regard whatsoever for the Petitioner.
c) The Respondent leaves the matrimonial home to unknown destinations and stays away most times for between four (4) days to one week without any explanation or apology.
d) The Respondent refused the love advances of the Petitioner and lacks any concern over the emotional and sexual needs of the Petitioner which she turns down all the time.
e) The Respondent has threatened to eliminate the Petitioner and does not stay in harmony with members of the Petitioner’s family.?
In her reaction to the petition, the 1st Respondent in her amended answer and cross-petition dated 19th October, 2004 in which one Mrs. Fidelia Ejiuwameonu Okoro (Nee Okocha) (the Appellant in this appeal) was cited as a Co-Respondent, the following reliefs were claimed:-
?(a) An order dismissing the Petition for a decree of dissolution of marriage filed by the Petitioner, with costs.
(b) A decree of dissolution of the parties’ marriage against the Petitioner on the ground that the marriage has broken down irretrievably because since the marriage, the
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Petitioner has committed adultery with the party-cited, and has deserted the Respondent without any care or maintenance which the Respondent finds intolerable.
(c) An order condemning the party-cited, in the sum of N500,000.00 (Five Hundred Thousand Naira) as Damages in respect of the continuous adultery committed by her with the Petitioner. The Petitioner and the Respondent/Cross Petitioner were happily married until the party-cited came between them.
(d) A rent allowance of N150,000,00 (One Hundred and Fifty Thousand Naira) per annum for the Respondent/Cross Petitioner.
(e) A maintenance allowance for the Respondent/Cross Petitioner of N20,000.00 (Twenty Thousand Naira) per month.
Such further and/or other order(s) as the Court may consider appropriate and just to make in the circumstances of this case.”
?After the petition, answer and cross-petition, replies and defence to the cross-petition and rejoinder have been filed and exchanged between the parties, the case proceeded to trial. At the trial the 2nd Respondent and one other witness [PW2] testified in support of the petition. The 1st Respondent on the other hand testified
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in support of her case and called one witness [DW2]. The 2nd Respondent also testified for herself and in addition called one witness [PCW2).
At the end of the hearing, the learned trial judge dismissed the 2nd Respondent?s petition and granted the 1st Respondent’s cross-petition, and awarded the sum of N200,000.00 as damages against the 2nd Respondent. It equally awarded a monthly maintenance cost in the sum of N20,000.00 against 2nd Respondent. Dissatisfied with the judgment, the petitioner filed a notice of appeal on 6th October, 2010 consisting of six (6) grounds of appeal. See pages 305 – 308 of the Record of Appeal.
The appeal was heard on the following briefs:
1. The Appellant’s brief filed on the 7th September, 2011
2. The 1st Respondent’s brief filed on 12th April, 2016
3. Appellant’s reply brief filed on 11th May, 2016 but deemed properly filed on 18th May, 2016
4. No brief was filed by the 2nd Respondent.
The Appellant in his brief formulated 2 issues for determination.
They are as follows:
?3.1. Issue No.1 Whether from the evidence on record and evidence from the 1st Respondent and DW2, it
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was proved that the 2nd Respondent has taken the Appellant as a second wife. See Ground 1.
3.2. Issue No. 2 Whether from the totality of the evidence on record, it was established that the 2nd Respondent and the Appellant committed adultery as to entitle the 1st Respondent to damages for loss of consortium in the sum of N200,000.00 or any sum at all. See Ground 2 and 3.
The 1st respondent on the other hand formulated a sole issue for determination. It is couched thus:
Whether on the evidence before the trial Court, the allegation of adultery against the Appellant is sustainable to warrant the award of N200,000.00 damages against her? (Ground 1 & 2)
From the issues formulated by both parties, it is clear that the issues 1 and 2 is the same as the Respondent issue 1.
The issues shall be discussed as harmonized above.
ISSUE 1.
It is the contention of learned counsel for the Appellant that the allegation of marriage between the Appellant and the 2nd Respondent was not satisfactorily proved before the Lower Court. He submitted that there are two types of marriage recognized in Nigeria i.e. Customary and Statutory
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marriage. In order to prove that a valid customary marriage was contracted, evidence must first be led as to the customary law of marriage of the locality concerned and the essentials of such marriage. The best evidence being that of an eye witness account of the transaction. He relied on Adeyemi v. Bamidele (1968) 1 All NLR 31; Adepeju v. Adereti (1961) WNLR 154; Shashie v. Salako (1976) 1 NMLR 160; Lawal v. Younan (1959) WNLR 155.
?While statutory marriage can only be established upon the production of certificate of marriage. In this case, counsel contended that the only marriage proved throughout the proceedings was the marriage between the 2nd Respondent and the 1st Respondent. He referred to Exhibit P1 (the Marriage Certificate). He further contended that the evidence of DW1 and DW2 to the effect that the 2nd Respondent informed them that the 2nd Respondent is his new wife is insufficient to prove the existence of any marriage between the Appellant and the 2nd Respondent either under Customary law or Statutory law. Hence the 1st Respondent has failed to discharge the burden placed on her to prove that the Appellant had married the 2nd Respondent. He
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referred to Nwaga v. Regd. Trustees, Recreation Club (2004) FWLR (Pt.190) 1360. Furthermore the evidence of the DW1 and DW2 as to the marriage between the Appellant and the 2nd Respondent is contradictory and therefore unreliable. He relied on the case of Akanni v. Odejide (2004) All FWLR (Pt 218) Pg 827.
He also contended that even if the 1st Respondent had successfully discharged the burden placed on her, the evidence of the Appellant, PCW2, PW1 and PW2 outweighs that of the 1st Respondent if put on the proverbial scale. He thus urged this Court to rule in the Appellant’s favour.
On issue 2, Counsel for the Appellant submitted that the 1st Respondent has failed to establish adultery between the Appellant and the 2nd Respondent as required under Section 82 or 85 of the Matrimonial Causes Act. It is the contention of counsel that there is no evidence in support of the claim of adultery as expounded in the case of Alabi v. Alabi (2008) All FWLR (Pt 418) 245 such as proof of any compromising position between the Appellant and the 2nd Respondent or co-habitation. He also contended that the decision of the trial Court that the 2nd Respondent committed
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adultery with the Appellant was based solely on the finding that the 2nd Respondent had taken the Appellant as a 2nd wife, so if this Court was to find otherwise, then the allegation of adultery will also abate.
Finally, counsel contended that the award of damages to the sum of N200,000 granted by the learned trial fudge for loss of consortium is not supported by law and should be set aside. He urged this Court to set aside the award of damage and part of the judgment of the trial Judge wherein the trial judge held as follows:
1. That the 2nd Respondent took the Appellant as 2nd wife
2. That the 2nd Respondent committed adultery with the Appellant.
On the other hand, learned counsel for the 1st Respondent submitted that the main issue before the Lower Court was the issue whether the 2nd Respondent committed adultery with the Appellant and not the issue of whether the 2nd Respondent had contracted a 2nd marriage with the Appellant as canvassed by counsel for the Appellant. He contended that issue of marriage was only incidental to the allegation of adultery. He further contended that there is sufficient evidence before the Court in
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support of the allegation of adultery between the 2nd Respondent and the Appellant which include the evidence of the 2nd Respondent’s oral admission to DW1 and DW2, which was not challenged. He referred to paragraphs 16 – 21 of the 1st Respondent’s Answer to Petition/Cross petition, the testimony of the 1st Respondent as to the alleged pregnancy of the Appellant which was also not denied by the 2nd Respondent.
He further contended that the trial judge finding on adultery was not based on the existence of marriage between the Appellant and the 2nd Respondent but on the circumstantial evidence before the Court. Referring to the case of Lawal v. Younan (Supra) counsel contended that the case is not binding or applicable to this Court. Firstly because it was delivered by an inferior Court/Lower Court. He referred to the case of OGUNSOLA v. NICON (2010) 5-7 (Pt III) 186. Secondly, because while that case dealt on the issue of the standard of proof required for proof of customary marriage, the issue before the Lower Court was whether adultery was established against the 2nd Respondent.
On the issue of award of damages by the trial Court, counsel submit that
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by virtue of Section 31(1) of the MCA the 1st Respondent was entitled to claim damages from the Appellant for destroying her matrimonial home and the Court in finding adultery awarded same accordingly.
On the issue of burden of proof, counsel submitted that the burden of proving the existence of marriage lies on the Appellant as it was the Appellant that alleged the existence of the marriage.
On the issue of contradictory evidence, counsel contended that the contradiction alleged by the Appellant is not material and therefore cannot affect the merit of the case. He relied on the case of Ayo Gabriel v. The State (1989) 5 NWLR (Pt 122) Pg.457; Enahoro v. Queen (1965) 1 All NLR 125.
In his reply, learned counsel for the Appellant submitted that the alleged pregnancy of the 2nd Respondent was never pleaded by the 1st Respondent in his pleadings, thus evidence led on such fact is inadmissible. He relied on the case of West Construction Co. Ltd v. Batalha (2006) All FWLR (Pt.315) pg.1.
The Appellant alleged that there was no marriage between her and the 2nd Respondent in any way. The Appellant also alleged that the 1st Respondent couldn’t prove
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that both the Appellant and the 2nd Respondent were co-habiting.
I must quickly say that the 1st Respondent did not set out to prove any form of marriage between the Appellant and the 2nd Respondent. The 1st Respondent set out to prove that, the 2nd Respondent committed adultery with the Appellant. The evidence of DW1 and DW2 to the effect that 2nd Respondent informed them that the Appellant is his new wife is not in dispute. This information is merely to prove that there was an adulterous union between the two.
The Courts have found that Adultery is a very private act done by two consenting adults. Thus it is almost impossible to have direct proof of adultery. As a result the Courts have to rely on indirect or circumstantial evidence. This evidence includes
(a) evidence of disposition and opportunity;
(b) general cohabitation;
(c) confession and admission of adultery;
(d) entry in a register of birth;
(e) blood test;
(f) birth of child after the gestation period;
(g) frequent visits to brothels;
(h) infection by veneral diseases and
(l) conviction for rape.
?Alabi v. Alabi (2007) 9 NWLR Pt.1039
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page 297, Erhanon v. Erhanon (1997) 6 NWLR Pt.510 page 667.
The Appellant agreed that she knew the 2nd Respondent when they were attending classes for ICAN. She also stated herself that the 2nd Respondent came to her office to buy gas cylinder. Also it was discovered that the Appellant had filed a divorce petition against her husband. DW1 and DW2 testified that the 2nd Respondent told them that the Appellant was now his wife.
The trial judge inferred adultery from all these pieces of information. Once there is evidence of undue familiarity, suspicious circumstances, and improper behavior, the Court is entitled, upon a consideration of each particular case, to find as a fair inference that such behavior leads as a necessary conclusion to adultery. There is indeed, a strong prima facie evidence of adultery if there is clear evidence of familiarity coupled with evidence of opportunity.
Anoka v, Anoka (1973) ECSLR vol. 3 Pt.1 page 51,
The trial judge was right in inferring adultery.
“By virtue of Section 15(2) of the Matrimonial Causes Act 1970, the Court upon hearing a petition for dissolution of a marriage shall hold the marriage
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to have broken down irretrievably if, but only if, the petitioner satisfies the Court of one or more of the following facts namely :
(a) that the respondent has willfully and persistently refused to consummate the marriage;
(b) that since the marriage the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;
(c) that since the marriage the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;
(d) that the respondent has deserted the petitioner for a continuous period of at least one year immediately preceding the presentation of the petition;
(e) that the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition and the respondent does not object to a decree being granted;
(f) that the parties to the marriage have lived apart for a continuous period of at least 3 years immediately preceding the presentation of the petition;
(g) that the other party to the marriage has, for a period of not less than one year, failed to comply with a
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decree of restitution of conjugal rights made under the law; and
(h) that the other party to the marriage has been absent from the petitioner for such a time and in such circumstances as to provide reasonable grounds for presuming that he or she is dead,
In effect, there are eight grounds for divorce and prove of one of these grounds or facts are, in the eyes of the law, conclusive proof of irretrievable breakdown of the marriage.
Ibrahim v. Ibrahim (2007) 1 NWLR (Pt.1015) 383,
Ash v. Ash (1972), WLR 347;
Shokunbi v. Shokunbi (1976) Suit No.JK/28WD/73, High Court of Lagos State, Lagos Judicial Division.”
The trial Judge was therefore right in dissolving the marriage by the cross-petitioner’s petition. The cross-petitioner, 1st Respondent proved her cross-petition as against that filed by the 2nd Respondent. The trial Court found that the 2nd Respondent deserted the 1st Respondent. I am in total agreement with that finding and resolve this issue against the Appellant.
Having found the allegation of adultery between the 2nd Respondent and the Appellant as claimed by the 1st Respondent established, the next step is to consider
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the claim for damages against the Appellant for her adultery with the 2nd Respondent.
Although Section 31(1) of the Matrimonial Causes Act provides for the right to claim damages for adultery, In Butterworth v. Butterworth (1920) Probate Page 126, it is stated that damages in divorce have always been compensatory only and not exemplary or punitive. It is to compensate the husband (in this case the wife) for the loss which she has sustained and not for the purpose of punishing the adulterer. See also Keyse v Keyse and Maxwell (1886) 11 P. D. 100; Evans v. Evans and Platts (1899) P. 195.
In awarding damages in divorce the Court is guided by the following principles; the value of the wife or husband; the injury to a spouse’s feeling; living apart of husband and wife; ignorance of the marital status of the Respondent character and conduct of spouses.
In the instant case, I consider the sum of N200,000.00 awarded by the trial judge punitive as the 1st Respondent did not adduce any evidence as to the value of the 2nd respondent to her. Instead the evidence before the Court shows the 2nd Respondent as an inconsiderate person, one who shirks his
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matrimonial duty and is very unhappy in the marriage, the 1st Respondent is not dependant on her husband. There is no feeling of loss.
I therefore hold that the Appeal succeeds in part in the following aspects:
1) The marriage is dissolved on the Petition of the cross-Petitioner Mrs. Comfort Oluchi Okaome.
2) I also hold that she is entitled to the one lump sum of N50,000.00 against the party cited.
N50,000.00 cost against the Appellant.
Other Citations: (2016)LCN/8888(CA)
