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CHARLES OWOLOGBO UGBOTOR
FLORENCE MAMUROMU UGBOTOR
IN THE COURT OF APPEAL OF NIGERIA
ON THURSDAY, THE 19TH DAY OF OCTOBER, 2006
BEFORE THEIR LORDSHIPS
ZAINAB ADAMU BULKACHUWA, JCA
PIUS OLAYIWOLA ADEREMI, JCA
ALI ABUBAKAR BABANDI GUMEL, JCA
CHARLES OWOLOGBO UGBOTOR – Appellant(s)
FLORENCE MAMUROMU UGBOTOR – Respondent(s)
Mr. O.K. Edu – For Appellant
Mrs. E.O. Umukoro – For Respondent
High Court of Delta State, sitting at Orerokpe
PIUS OLAYIWOLA ADEREMI, J.C.A, (Delivering the Leading Judgement):
This is an appeal against the judgment in Suit No. HOR/19/2002: Florence Mamuromu Ugbotor and Charles Owologbo Ugbotor by the High Court of Delta State, sitting at Orerokpe delivered on the 17th of December 2002. The petitioner (hereinafter referred to as the respondent) had by the endorsement on her petition claimed against the respondent (hereinafter referred to as the appellant as follows:-
(1) A decree of dissolution of the marriage contracted on the 30/1/93 between the Petitioner and the respondent hereon on the ground of:-
(c) Adultery and Intolerability.
On the other hand, the appellant who was the cross-petitioner in the Court below, in his process captioned ANSWER AND CROSS-PETITION, Cross-petitioned claiming as follows: –
“(1) An order dismissing the petition
(2) A decree of the dissolution of the marriage on the grounds that since the marriage the cross-respondent has behaved in such a way that the cross-petitioner cannot reasonably be expected to live with the cross-respondent any longer.”
After the exchange of the petition and answer cum cross-petition between the parties, the case proceeded to hearing. In a reserved judgment delivered on the 17th of December 2002, the learned trial judge, in ordering the dissolution of the marriage held inter alia: –
“It is my believe (sic) that the respondent’s misbehaviour stemed (sic) mainly from the fact of the seven-year childlessness of the marriage. I believe the respondent has a child with the Jeddo girl friend and also with a girl at Sapele all to show and prove his fertility and was therefore not interested in subjecting himself to fertility tests in the various hospitals the petitioner had to go for tests and treatment.
I also believed (sic) that the childlessness of the petitioner also resulted in the endless quarrels and ill treatments of the petitioner as if she is responsible for her predicament. Rather than have patience and faith in God, the respondent went to town to prove his own fertility. From the fore-going, there is no doubt that the marriage has broken down irretrievably and in the circumstances I dissolve the marriage contracted on 30/1/93 between the petitioner and the respondent hereon on the grounds as presented by the petitioner as follows:-
(c) Adultery and Intolerability (sic) behaviour.”
Being dissatisfied with the said judgment, the respondent/appellant entered an appeal against the said judgment, the Notice of Appeal which was filed on 4th March 2003, carries six grounds. Distilled from the aforesaid grounds of appeal are two issues which as contained in the appellant’s brief of argument filed on the 4th of June 2004, are in the following terms: –
“(1) Whether the allegations of adultery, intolerability and cruelty well (sic) proved by the Respondent.
(2) Whether the issue of desertion raised by the appellant in his cross-petition in the court below was proved to warrant that Court to grant divorce.”
For her part, the respondent identified only one issue for determination which as it is set out in her brief, is in the following terms:-
“Whether the learned trial judge acted judicially and judiciously by granting all the reliefs sought by the respondent and dismissing the appellant’s cross-petition.”
When this appeal came before us on the 25th of September 2006 for argument. Mr. Edu, learned counsel for the appellant referred to, adopted and relied on his client’s brief filed on the 4th of June 2004. He submitted that a careful reading of the record of proceedings will show that extraneous evidence was imported and relied upon by the trial judge in reading the decision arrived at. And while relying on the decision in NEPA VS. OSOSANYA (2004) (PT.914) 908 AT 927, he urged that the appeal be allowed.
Mrs Umukoro, learned counsel for the respondent also referred to, adopted and relied on her client’s brief deemed to have been properly filed on 13th October 2005 and submitted that the judgment of the Court below was predicated on the evidence before it; she urged that the appeal be dismissed.
I have carefully read the briefs of both sides; one thing common to both sides is that the marriage be dissolved, where they have parted always is the contention of each side that the marriage be dissolved exclusively on the grounds each side had proffered. While the petitioner/respondent prayed the Court to dissolve the marriage on the grounds of (1) Cruelty, (2) Incompatibility and (3) adultery and Intolerability, the cross/petitioner – appellant urged the court to dissolve on the ground that the Petitioner/Cross-respondent/respondent has behaved in such a way that the cross-petitioner cannot reasonably be expected to live with the cross-respondent any longer. The issues raised by the parties are materially similar. The appellant, in his said brief submitted that the allegations of adultery, intolerability and cruelty were not proved before the Court below and therefore, the conclusion reached by the court below was perverse, it was further submitted; while relying on the decision in (1) NEPA VS. OSOSANYA (2004) ALL FWLR (PT.194) 927, (2) OGOLO VS. FUBARA (2003) FWLR (PT.169) 1285 and (3) IWUOHA VS. NIPOST LTD (2003) FWLR (PT.160) 1535. On issue NO.2, which raises the matter of desertion, the appellant argued that there is that unchallenged evidence that the petitioner moved out of the matrimonial home on 29/11/2000 and the petition leading to these proceedings was brought before the lower Court on 12/3/2002 while the cross-petition was filed on 17/4/2002; he referred to section 15(1) and (2) of the Matrimonial Causes Act and submitted that the conditionalities laid down in the aforesaid provision were met by the evidence that the petitioner/cross-respondent/respondent was in desertion from the period 29/11/2000 to 17/4/2002 which is more than a year. On her part, the respondent/cross-petitioner/appellant submitted that the evidence led by the petitioner and the answers of the respondent/cross-petitioner/appellant during cross-examination, and in particular his (appellant) admission that he had not gone to the parents of the Petitioner/respondent to deny the allegation in Exhibit B – a letter dated 18th February 2001, from the solicitor of the petitioner to the respondent/appellant indicates an admission of the commission of adultery on the part of the cross-petitioner/appellant and that cruelty was also proved. The following cases were relied upon (a) S.G.B. LTD VS. BROMER HOLDING LTD (2001) 14 NWLR (PT.743) 733, (b) Section 149 of the Evidence Act (c) GOLLIN VS. GOLLIN (1963) A.E.R. 966, (c) OTTI VS. OTTI (1992) 7 NWLR (PT.252) 208, (d) EKRETU VS. OYOBOBERE (1992) 9 NWLR (PT.266) 462, (e) MOGAJI VS. ODOFIN (1978) 4 S.C. 91 (f) THOMAS VS. THOMAS (1947) A.C. 484, (g) Section 28(c) of the Matrimonial Causes Act 1970. She finally urged that the appeal be dismissed.
I shall approach the resolution of this appeal by examining the legal connotations of CRUELTY, INCOMPATIBILITY, ADULTERY and INTOLERABILITY and as contained in the CROSS-PETITON INTOLERABILITY, BEHAVIOURS and DESERTION. It seems to me that (a) cruelty, (b) adultery and (c) intolerability are inter-woven.
A marriage could be said to have broken down irretrievably if it can be established that one spouse had been guilty of cruelty towards the other. No reasonable spouse will be expected to share a state of affairs with other spouse who has been very cruel to her. Section 15(2) (c) of the Matrimonial Causes Act, which deals with this point, provides:-
“The Court hearing a petition for a decree of dissolution of a marriage shall hold the marriage to have broken down irretrievably if, but only if, the petitioner satisfied the Court of one or more of the following facts
(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.”
In ATKINS VS. ATKINS (1942) 2 A.E.R 637, Collins J in affirming the right or duty of the Court to intervene on behalf a husband or wife in cases of cruelty observed at page 638 thus: –
“It is not necessary, as it is obvious, in order to bring about the state of things that there should be violence. One knows that dropping water wears the stone. Constant nagging will become intolerable, and through in the course of married life you may be able to point to no single instance which could possibly be described as, in common parlance, ‘a row’ yet nagging may be of such a kind, and so constant, that it endangers the health of the spouse on which it is inflicted.”
I bear in mind that foreign authorities are no longer binding on our courts; the above dictum being that of a High Court Judge in England has no effect on our courts; but like the judgments of the superior courts of England, it could be of some persuasion. Our Supreme Court gave approval to this quotation when in WILLIAMS VS. WILLIAMS (1966) 1 ALL NLR 36, Idigbe J.S.C. (of blessed memory) reasoned thus:-
” … the conduct of the respondent must be of such a character as is likely to cause or produce reasonable apprehension of, danger to life, limb or health (bodily or mental) on the part of the petitioner.”
It therefore seems to me from the above dicta that the essence of cruelty in law, to ground the dissolution of a marriage, it must be a conduct, which is grave, and serious coupled with injury or a reasonable apprehension of injury (physical or mental) to health.
Then what was the evidence led at the trial? The petitioner/respondent called only one witness and that was herself. She said:-
“No issue of the marriage. No previous court proceedings. The marriage has broken down irretrievably.
I am no longer compatible with him. I have packed out of the Matrimonial home on 29/11/2000. Since then we have not have (sic) anything to do with. I want dissolution of this marriage on the following ground:-
Under cross-examination, she said:-
“What I mean by adultery without the respondent keeps woman at random. He does not bring women to our matrimonial home.”
The above terse evidence can never even by any strained construction or evaluation, support the ground of cruelty. Even, in her testimony, it is clear that she founded her prayer for dissolution on two grounds i.e. (1) Incompatibility and (2) adultery. It is trite principle of law that a plaintiff, which here includes a petitioner must stand or fall by the strength of his own evidence. Again there is nothing in the above evidence, which will compel a reasonable tribunal to hold that by it, the parties are incompatible and consequently reach a conclusion that the marriage has broken down irretrievably. There is nothing in the evidence to even suggest that the state of affairs created, if any, makes it; incompatible for the two to live together. As I have said, adultery is another ground prayed. Adultery is defined to be a consensual sexual intercourse between two persons of opposite sexes at least one of whom is married to a person other than to one with whom the intercourse is had. It follows from this definition that to establish adultery first there must be sexual intercourse, secondly, the sexual intercourse must be voluntary and thirdly, at least one of the parties must be married. What is the way to prove adultery? The classical pronouncement on this is by Lord Buck-master when in ROSS VS. ELLISON (or ROSS) (1930) A.C. 1 at page 7 he said:-
“Adultery is essentially an act which can rarely be proved by direct evidence. It is a matter of inference and circumstance. It is easy to suggest conditions which can leave no doubt that the adultery has been committed, but the mere fact that people are thrown together in an environment which lends itself to the commission of the offence is not enough unless it can be shown by documents, e.g. letters or diaries or antecedent conduct that the association of the parties was so intimate and their mutual passion so clear that adultery might reasonably be assumed as the result of an opportunity for its occurrence.”
The evidence proffered by the petitioner/respondent can never ground an allegation of adultery. Assuming that the petitioner/respondent even succeeded by virtue of Section 15(2)(b) of the Matrimonial Causes Act, which provides:-
Section 15(2) (a)
“The court hearing a petition for a decree of dissolution of a marriage shall hold the marriage to have broken down irretrievably if, but only if, the petitioner satisfies the court of one or more of the following facts:-
(b) that since the marriage the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent.”
which I do not subscribe to the petitioner/respondent has not in addition shown in her testimony that she found the situation intolerable to live with the respondent/appellant. The trial judge in his summation held:-
“It is my believe (sic) that the respondent’s behaviour stemmed (sic) mainly from fact of the seven year childlessness of the marriage. I believe the respondent has a child with the Jeddo girl friend and also with a girl at Sapele all to show and prove his fertility and was therefore not interested in subjecting himself to fertility tests in the various hospitals the petitioner had to go for tests and treatment.
I also believed that this childlessness of the petitioner also resulted in the endless quarrels and ill-treatments of the petitioner as if she is responsible for her predicament. Rather than have patience and faith in God, the Respondent went to town to prove his own fertility. From the foregoing, there is no doubt the marriage has broken down irretrievably and in the circumstances, I dissolve this marriage contracted on 30/1/93 between the petitioner and the respondent hereon on the grounds as presented by the petitioner as follows:-
(c) Adultery and Intolerability behaviour.
From the evidence that I have reviewed and the legal authorities referred to supra, I am totally convinced that the findings of the Court below quoted supra are perverse. They do not show that the trial judge has properly evaluated the evidence before him. In the circumstances, this appeal succeeds; the order of the court below dissolving the marriage contracted on 30/1/93 on the ground prayed by the Petitioner not having been established by evidence, is hereby set aside. In its place, I hereby enter an order dismissing the petition.
As I have said earlier, it is manifest from the petition and the cross-petition that the parties no longer intend to live together as husband and wife.
The cross-petitioner/appellant had, in praying for the dissolution of the marriage, averred that the cross-respondent had behaved in such a way that the cross-petitioner cannot reasonably be expected to live with the cross-respondent any longer in the sense that she (cross-respondent) moved out of the matrimonial home on 29/11/2000. The petitioner/cross-respondent, in her testimony said:-
“I am no longer compatible with him. I have packed out of the matrimonial home 29/11/2000. Since then we have not have (sic) anything to do with.”
The testimony of the Petitioner/cross-respondent corroborates the assertion of the cross-petitioner/appellant that she (petitioner) withdrew from the state of affairs on the 29th November 2000 and that since then they never had anything to do together. There is no evidence that she returned to the state of affairs after withdrawing therefrom on 29th November 2000. From the records, the petition was filed on the 12th of March 2002, while the cross-petition was filed on 11th April 2002. Certainly over a year had lapsed between 29th November 2000 – the date of withdrawal by the petitioner and 17th March 2002, the date of filing the petition or even 11th April 2002, the date of filing the cross-petition. One of the grounds for dissolution of marriage is desertion. Section 15(2) (d) of the Matrimonial Causes Act 1970, which is the relevant section, provides:-
“The court hearing a petition for a decree of dissolution of a marriage shall hold the marriage to have broken down irretrievably if, but only if, the petitioner satisfies the court of one or more of the following facts:
(d) that the respondent has deserted the petitioner for a continuous period of at least one year immediately preceding the presentation of the petition.”
Clearly, the evidence before the court below satisfies the provisions of the afore-mentioned Section 15(2) (d), but because marriage is a sacred institution, which must not be whimsically put to an end, I must still examine whether there was any expulsive conduct or conduct which would constitute a just cause to desertion; a just cause to a charge of desertion. In considering this mitigating element, Lord Denning LJ. in TIMMINS VS.TIMMINS (1953) 2 A.E.R. 187 observed at page 191 thus:-
“In considering whether one party has good cause for leaving the other much depends on whether the conduct complained of is of a grave and weighty character or not. Conduct which is of a grave and weighty character may sometimes fall short of cruelty because it lacks the element of injury to health but nevertheless, it may give good cause for leaving ….. On the other hand, conduct which is not of a grave and weighty character and is for that season not cruelty, does not give good cause for leaving.”
Guided by the above dictum, I have no hesitation in saying after carefully examining the totality of the evidence led, that no conduct of the cross-petitioner was shown to be grave and weighty as to push the petitioner/cross-respondent into leaving the state of affairs. She withdrew on her own free volition from the state of affairs for no just causes she was therefore guilty of desertion, the court below should have so held and consequently dissolved the marriage on the ground of desertion by the petitioner.
In the final analysis, this appeal succeeds. The order of the court below dissolving the marriage on the grounds of (a) cruelty, (b) incompatibility and (c) adultery and intolerability is hereby set aside. The petition of the petitioner/cross-respondent is hereby dismissed for failure of proof of the essential ingredients.
The marriage, based on the evidence before the court below, would have been given a decent burial by pronouncing its dissolution on the basis of desertion by the petitioner/cross-respondent. However, since an appeal is a re-hearing, I hereby allow the cross-petition and enter an order dissolving the marriage on the ground of desertion pleaded by the respondent/cross-petitioner. All other consequential orders, which the court below ought to have made, are hereby made.
There shall be no order as to costs.
ZAINAB A. BULKACHUWA, J.C.A:
I have read before now the draft of the judgment just delivered by learned brother Aderemi, JCA.
In any civil matter be it matrimonial, commercial, chieftaincy or one based on land, the plaintiff fails or succeeds on his pleadings and the evidence he adduces in support of such pleadings. If he adduces evidence which is not pleaded such evidence will be discountenanced by the court, similarly if there is no evidence to support the pleadings the pleadings will go to no issue and will be ignored by the courts.
For a party who seeks the judgment of the court to be in his favour must adduce such adequate credible evidence in support of his pleading. Where there is no such evidence then the averment in the pleadings are deemed abandoned.
See Adimore vs. Ajufo (1989) 3 NWLR (Part 80) 1;
Olurunfemi & Others vs. Asho & Others (2000) 2 NWLR (Part 643) 143.
In the instant case the petitioner did not lead evidence in support of the averment in her pleadings. She is therefore not entitled to judgment. Her testimony before the lower court amounted to less then one page of print (See page 19 of the records) this testimony is said to support her pleadings as contained at pages 2 – 5 of the records.
The finding of the trial judge is based not on the evidence per se but rather on the averment in the pleadings. To my mind this is perverse for the pleadings cannot stand without adduced evidence in support. The finding of the lower court was not supported by ‘credible evidence.
For these and the more elaborate reason contained in the lead judgment I find merit in this appeal and I allow the appeal and abide by all consequential orders as contained in ‘the lead judgment including orders on the cross petition and order as to costs.
A.A.B. GUMEL, J.C.A.
I have had the opportunity of reading the judgment just delivered by my learned brother Aderemi, J.C.A. I agree with the reasonings and conclusions he arrived at.
I do not wish to add anything to the opinion therein expressed. I also agree that this appeal should be allowed. I abide by all the orders made by my learned brother in the lead judgment. There shall be no order as to costs.