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Akinboni v. Akinboni

MOSES OLABIMI AKINBONI

V

SUSANAH BOLAJOKO AKINBONI (MRS.)

COURT OF APPEAL

( IBADAN DIVISION )

SUNDAY AKINOLA AKINTAN, JCA ( Presided )

DALHATU ADAMU, JCA ( Read the Lead Judgment )

OLUFUNLOLA OYELOLA ADEKEYE, JCA

CA/112196

MONDAY, 31ST DECEMBER, 2001

COURT - Gratuitous award - Whether court can grant what is not prayed for - Rationale for the rule against gratuitous awards

COURT - Judicial discretion of - How exercised

COURT - Trial court - Finding of fact of trial court - Where perverse - Whether will be set aside by appellate court

EVIDENCE - Evidence on facts not pleaded - Effect thereof

EVIDENCE - Oral or extrinsic evidence - Whether admissible to vary a contract

EVIDENCE - Standard of proof - Allegation of crime in civil cases - Standard of proof required therefor

MATRIMONIAL CAUSES - Gratuitous awards - Rule against gratuitous awards - Whether applies to matrimonial causes  - Rationale for the rule

MATRIMONIAL CAUSES - Maintenance allowance - Award of  - Factors to be considered in making same

MATRIMONIAL CAUSES - Maintenance allowance in divorce cases Assessment of by court - Guiding principles

MATRIMONIAL CAUSES - Maintenance award therein - Need to consider inflationary aspects of the cost of living in making same

MATRIMONIAL CAUSES - Maintenance award therein - Need to consider respondent’s earning capacity at the time of making same

MATRIMONIAL CAUSES - Party who did not file any pleadings at all in a matrimonial causes action - Circumstances when court will allow same to give evidence - Applicable rules where court refuses to grant the party’s application for leave to give evidence without pleadings

PRACTICE AND PROCEDURE - Evidence - Matrimonial causes proceedings - Evidence on facts not pleaded - Effect - Circumstances when court will allow evidence without pleadings

PRACTICE AND PROCEDURE - Findings of fact - Where perverse - how treated

PRACTICE AND PROCEDURE - Judicial discretion of court - How exercised

Issues:

1.            Whether the court could award to a claimant that which he does not claim or more than what he claims.

2.            Whether oral or parol evidence could be given to vary or contradict a written instrument.

Facts:

The appellant/petitioner  sued for nullity of marriage and custody of the children of the marriage but the respondent cross-petitioned for judicial separation, custody and maintenance, among others. The suit was  heard and judgment entered for the respondent granting her judicial separation, custody of the children of the marriage, higher award of maintenance allowance, and order of partition of the family property which was not even claimed. Dissatisfied, the petitioner filed this appeal.