Legal Nuggets (Series 98): ISSUE -Position of The Law as Regards Settlement of Property Under Matrimonial Causes.- By Adedotun Habeeb Adetunji, LL.M (M.IoD), FCAI'

There can be no question that a "mere ipsi dixit" is admissible evidence but is evidence resting on the assertion of the one who made it. Where there is need for further proof a "mere ipsi dixit" may not be enough." ETEBU vs. ETEBU(2018) LPELR-46250(CA)

ISSUE: MATRIMONIAL PROCEEDINGS-Position of the law as regards settlement of property under matrimonial causes

PRINCIPLE:
"The last issue on this ground is the order of the trial Court sharing the twin flat matrimonial home to the parties equally. The trial Court reasoned that since at the time of the marriage to the appellant the matrimonial home was not completed, the Respondent
must have contributed to the completion of the building. The evidence before the Court is that the Appellant in his oral testimony maintained that the Respondent has contributed no kobo in the building of the matrimonial home. The Respondent on the other
hand testified that she has been giving the Appellant money to complete building the matrimonial home. But it is to be noted that the Respondent could not say how much she contributed or better still lay any evidence of such contribution apart from her ipsi
dixit. See Pp. 373 - 376 of the record of appeal.
The trial Court proceeded to award one half of the matrimonial home to the Respondent and relied on the case of OGHOYONE V. OGHOYONE (supra).
The position of the law as regards settlement of properties under matrimonial causes is captured in Section 72 of the Matrimonial Causes Act which provide, that:- 72(1) the Court may, in proceedings under the Act by order require the parties to the marriage
or either of them to make for the benefit of all or any of the parties to, and the children of the marriage, such a settlement of property to which the parties are, or either of them is entitled (whether in possession or in reversion) as the Court considers just and
equitable in the circumstances of the case.
(2)The Court may, in proceedings under this act, make such order as the Court considers just and equitable with respect to the application for the benefit of all or any of the parties to, and the children of the marriage of the whole or part of property dealt with
by ante - nuptial or post nuptial settlement on the parties to the marriage or either of them.
Now by the above provision, settlement of properties is based on what the Court considers just and equitable. In other words, a wide discretionary power is given to the Court by Section 72 of the Act. However, like in all matters of exercise of discretion, it must
be done judicially and judiciously based on the circumstances of a particular case. See BELLO V. YAKUBU (2008) 14 NWLR (PT. 1106) 104. In the exercise of its discretion, the Court must do what is fair and just regard being had to the facts and evidence
adduced in each case. The Court must not depend on sentiment, tantrum or one sided argument. See OLUWADAMILARE V. UNIVERSITY OF ILORIN (2009) 17 NWLR (Pt. 1169) 1; AJE PRINTING (NIG.) LTD. V. EKITI LOCAL GOVERNMENT AREA (2009) 7 NWLR (PT.
1141) 512 and MAMMAN V. SALAUDEEN (2005) 18 NWLR (PT. 958) 478.
Learned Counsel for the Appellant argued that since the marriage contracted by the parties is void ab initio, the trial Court ought not to have made an order sharing the matrimonial property. Learned counsel failed to take into cognizance that the basis upon
which the trial Court made the order was the holding that the Respondent contributed to the construction of the matrimonial home. The basis of that order can be seen from the evaluation of evidence adduced at the trial.
The Respondent's counsel, however contended that the fact that a marriage is void does not affect the sharing of the property and referred to OGHOYONE V. OGHOYONE (supra). I am in agreement with the submission of learned counsel to the Respondent as
that is the correct state of the law. However, there must be evidence; oral or documentary that the matrimonial home came about as a result of joint contribution between the spouses. In Oghoyone's case there was evidence to that effect and this Court had no
difficulty in affirming the decision of the trial Court.
In the present appeal, the trial Court relied on the ipsi dixit of the Respondent only in arriving at the decision. In DEBS & ORS. V. CENICO (NIG.) LTD. (1986) 3 NWLR (PT. 32) 846, Oputa, JSC, (of blessed memory) held that: " .... Ipsi dixit literally means he himself
said it, it is thus a bare assertion resting on the authority of an individual. There can be no question that a "mere ipsi dixit" is admissible evidence but is evidence resting on the assertion of the one who made it. Where there is need for further proof a "mere
ipsi dixit" may not be enough."
There is no further evidence from the Respondent of all the monetary contribution she claimed to have made apart from her ipsi dixit. The Appellant had earlier testified that the Respondent contributed nothing to the construction of the property in question.
Therefore, the Respondent's bare assertion ought to be substantiated and having not been substantiated, it remains in the realm of an assertion and cannot be regarded as a credible evidence capable of conferring benefit to the maker and worthy of
acceptance by the trial Court. See BUSARI & ANOR. V. ADEPOJU & ORS. (2015) LPELR-41704. What the above discourse means is that the trial Court did not exercise it discretion judicially and judiciously as envisaged by Section 72 of the Act having reached its
decision in the manner it did. Evidence of actual contribution made by the Respondent is essential before a just decision on this issue could be reached. For where evidence of contribution abound the fact that the marriage is a nullity on ground of its being void
cannot bar the Respondent from sharing in from the property. In the light of this, this issue is equally resolved in favour of the Appellant and against the Respondent." Per LAMIDO, JCA.(Pp.47-51,Paras.A-E).

ISSUE: MAINTENANCE-Principles guiding assessment of maintenance in matrimonial causes

PRINCIPLE:
"On issue No. 2, learned counsel for the Appellant argued that the trial Court erred in awarding a lump sum of N300,000.00 to the Respondent as maintenance for a void marriage produces no legal consequence. He referred to JABRE V. JABRE (supra). He also
argued that there is no basis for the order of sharing the matrimonial home in equal parts between the parties when the evidence of the Respondent's contribution to the building of the houses is not sufficient to warrant the holding. Learned counsel for the
Respondent argued that the Respondent is entitled to maintenance. He relied on Section 70 of the Act. He also argued that the trial Court was right in granting the Respondent a portion of the matrimonial property in view of the evidence before it that the
Respondent contributed in its construction.
On the maintenance to the Respondent which was the fourth issue for determination before the trial Court, the Court summed up its position in the following way:-
"It is in evidence that since 2010 when the petitioner abandoned the Respondent and the child, he has failed to provide for them. In my decision, I have taken into consideration the earning capacity of the Respondent who is a librarian. I have also taken into
consideration the earning capacity of the petitioner who has three sons of the 1st marriage to cater for. I have decided therefore to award a lump sum of money for the period of the marriage from the year 2010 to today. Thereafter the petitioner is discharged
from catering for the Respondent, for the period stated above, I award the sum N 300,000.00 to the Respondent against the Petitioner." The lump sum award by the Court is for a period between 2010 to 8th May, 2014 when the judgment in the petition was
delivered. The sum awarded to the Respondent is N300,000.00. By Section 73 (1) (a) of the Act the Court has powers to order for the payment of a lump sum and in exercising its powers under the Act, the Court may do any or all of the following, (a) order that
a lump sum or a weekly, monthly, yearly or other periodic sum be paid; (b) order that a lump sum or a weekly, monthly, yearly or other periodic sum be secured. But before an order for a lump sum under Section 73 (1)(a) of the Matrimonial Causes Act is
made, consideration must be given to the parties income earning capacity, property and financial resources, financial needs and responsibilities, standard of life before the dissolution of the marriage, their respective ages and the length of time they were
together as husband and wife as the factors that cannot be assumed or taken for granted. See IBEABUCHI V. IBEABBUHI (unreported) Appeal No: FCA/E/5/82 OF 22/09/82 AND KPILAH V. NGWU (2018) LPELR-45395. But has the trial Court taken into consideration
the factors stated above before embarking in making the order. I think not. First, the trial Court made the order on the premise that the marriage between the parties was a valid marriage; and it is doubtful if the Court would go ahead to make the same order
if it had found the marriage to be void ab initio. This is so because any act or transaction which is expressly or even impliedly prohibited by statute is illegal and no benefit can be derived from such act or transaction. In OGHOYONE V. OGHOYONE (supra), Rhodes-Vivour, JSC, held that:
'' A void marriage is a marriage that produces no legal consequences. That is to say it is a marriage that never took place."
Also in ADEFULU & ORS. V. OKULAJA & ORS. (1996) LPELR 90, Ogundare, JSC, qouting an American decision in ZOGBY V. STATE 53 MISC 2d 740; 279 NYS 2d 665. 668 stated that:
"null and void means that which binds no one or is incapable of giving rise to any right or obligation under any circumstance or that which is of no effect."
I do not think that a woman who willfully engaged in a marriage ceremony while she is legally married to another man should enjoy the benefit of maintenance. This is so because the subsequent marriage giving rise to the order of maintenance is void ab
initio. The applicable maxim here is ex nihilo nihil fit. See ORAKWE V. ORAKWE & ORS. (2018) LPELR-44763 and OBIOZOR V. NNAMUA (2014) LPELR-23041. The order of payment of lump sum of N300,000.00 to the Respondent as maintenance cannot stand and
it is hereby set aside." Per LAMIDO, JCA.(Pp.43-46,Paras.B-F)