ENO BASSEY EKANEM V. ENGR. EKANEM BASSEY EKANEM & ANOR
(2012)LCN/5789(CA)
In The Court of Appeal of Nigeria
On Friday, the 30th day of March, 2012
CA/C/157/2010
RATIO
FAMILY LAW: GROUNDS FOR DISSOLUTON OF A MARRIAGE
The dissolution of marriage under the Act is guided by the Matrimonial Causes Act, Cap 220 LFN 1990. Ibrahim V. Ibrahim (2007) 1 NWLR pt 1015 Page 383. Either party to a marriage may present a petition that their marriage has broken down irretrievably under S. 15(1) of the Matrimonial causes Act 1970.
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 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 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.
In addition to the above listed facts, section 16(1) of the Matrimonial Causes Act stipulates fourteen other facts, any of which if proved, would constitute the fact that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent. These facts are the commission of rape, sodomy, or bestiality by the respondent; habitual drunk or drug addiction for two years: frequent convictions for crime coupled with habitually leaving the petitioner without reasonable means of support; attempting to murder the petitioner or inflicting grievous bodily harm on her: refusal to comply with a maintenance order made in favour of the petitioner, and confinement in a mental institution for 5 years during the 6 years period immediately preceding the presentation of the petition. Thus the combined effect of sections 15 and 16 of the Act would give rise to twenty-two grounds of divorce rather than one ground as section 15 (1) tends to claim.
In Nigeria a court cannot dissolve a marriage or, declare a marriage to have broken down though it appears the marriage has broken down irretrievably unless one of the facts listed in S. 15(2) of the Matrimonial Causes Act is established by the Petitioner. Ibrahim V. Ibrahim (supra), Damulak V. Damulak (2004) 8 NWLR pt 874 page 151. PER UZO I. NDUKWE-ANYANWU, J.C.A.
WORDS AND PHRASES: MEANING OF THE PHRASE CONSENSUS AD IDEM
The learned authors of Blacks Law Dictionary, 8th edition page 323 define the phrase “Consensus in idem” or “Consensus ad idem, as “An agreement of parties to the same things; a meeting of minds.” PER JOSEPH TINE TUR, J.C.A
Before Their Lordships
MOHAMMED LAWAL GARBAJustice of The Court of Appeal of Nigeria
UZO I. NDUKWE-ANYANWUJustice of The Court of Appeal of Nigeria
JOSEPH TINE TURJustice of The Court of Appeal of Nigeria
Between
ENO BASSEY EKANEMAppellant(s)
AND
1. ENGR. EKANEM BASSEY EKANEM
2. IMELDA ESSIENRespondent(s)
UZO I. NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Cross River State Holden in Calabar delivered on 28th June, 2010.
The Appellant a retired banker from U.B.A and the 1st Respondent an engineer, contracted their marriage on 25th July, 1981 of the Marriage Registry Lagos, Nigeria according to the Marriage Act. The 1st Respondent on 11th November, 2005 filed a petition seeking the dissolution of their marriage on grounds of (a) Cruelty (b) Intolerable behaviour/Incompatibility (c) Cessation of conjugal rights since 1996.
The couple had been living apart since 1996 and the 1st Respondent believes that the marriage has broken down irretrievably. The 1st Respondents therefore sought the following orders.
A decree of Dissolution of the marriage between the Petitioner and the respondent on the ground that the marriage has broken down irretrievably.
The Respondent cross petitioned on the 22nd June, 2006 and sought the following orders.
That the marriage be dissolved on the ground that it has broken down irretrievably on the reason that the 1st Respondent committed adultery with the Co-Respondent and the behaviour which is unreasonable that the Petitioner could not tolerate.
Claims jointly and severally from the respondent and Co-respondent the sum of N5, 000,000.00 as compensation for the adultery committed by the Respondent with the Co-Respondent while the marriage between the Petitioner and 1st Respondent is still subsisting. Order for the sharing of the property jointly acquired by both parties except the property at Kaduna where the Petitioner is currently residing as the Petitioner has no other building in Nigeria to reside and same be declared to be given to the Petitioner as part of her shares of the property.
At the end of the trial, the learned trial Judge held as follows.
“That the marriage celebrated between the Petitioner and the Respondent/Cross Petitioner on the 25th July, 1981 of the marriage Registry of Lagos, in Nigeria as no 0.799/81 is hereby dissolved and I grant a decree Nisi to the Petitioner which shall be made absolute upon application on the expiration of three months from the date hereof”.
Being dissatisfied, the cross Petitioner/Appellant filed a notice and 4 grounds of appeal. The appellant also sought the following reliefs.
“An order setting aside the entire judgment of the Court including the order Nisi granted the petitioner and remitting the case back to the High Court for hearing before another Judge”.
The Appellant filed her appellant’s brief on 3rd November, 2010 Also an Appellant’s Reply brief was filed on 12th May, 2011 and deemed properly filed and served on 7th June, 2011.
The appellant articulated only one issue for determination and it reads as follows:-
Whether having regards to the facts averred in the Respondent’s Answer and Cross petition/processes filed in response to the petitioner’s case, and without the petitioner leading oral evidence in prove of his case, the Court was right in upholding the petition, and granting dissolution of the marriage and issuing a decree Nisi in favour of the petitioner.
The 1st Respondent in turn filed his Respondent’s brief on 1st March, 2011 and deemed properly filed and served on 22nd March, 2011. The 1st Respondent adopted the sole issue articulated by the Appellant.
The 2nd Respondent filed no brief.
The Appellant agreed that both parties acknowledged that their marriage have broken down irretrievably. However the appellant argued.
That the reasons that grounded the irretrievable breakdown are different. The Appellant contended that the Petitioner/Respondent had indulged in an adulterous situation with one Imelda Essien. The appellant also argued that the breakdown of the marriage was caused by the Petitioners wickedness, adultery, desertion and selfishness.
The Appellant’s counsel argued that the procedure adopted by the trial Judge was unusual. Counsel argued that even though both parties contend that their marriage had broken down irretrievably but for different reasons which at least one must be proved to ground the break down of the marriage and eventual dissolution.
In furtherance of his argument learned counsel submitted that the Petitioner/Respondent and the Cross Petitioner/Appellant are not consensus ad idem on the grounds that culminated in the breakdown of their marriage. Counsel further stressed that the petitioner/respondent must prove at least one ground to earn himself the decree nisi. None of the grounds was proved and as such the decree nisi cannot be granted. Counsel therefore urged the Hon. Court to recind that order and order for a retrial by another Judge. In reply the Petitioner/Respondent’s learned counsel submitted that S.75 of the Evidence Act provided.
“No fact need be proved in a civil proceedings which the parties thereto or their agents agree to admit at the hearing on which before the hearing they agree to admit by any writing under their hands on which by any rule or pleading in force of the time they are deemed to have admitted by the pleadings”
Counsel Stated that the Court of Appeal in Igbojimadu V. Ibeabuchi (1998) 1 NWLR pt 533 page 197, Nsofor JCA held.”
Admissions are the strongest forms of proof, what is admitted requires no further proof”
See also UBN V. Salami (1998) 3 NWLR pt 543 page 538.
Counsel submitted that the appellant in clear terms unequivocally admitted that the marriage has broken down irretrievably. Counsel referred the Court to para 36 and 37 of the appellant’s written “Statement on oath which states as follows…. I agree that the marriage has broken down irretrievable but as a result of the petitioner’s adultery, cruelty, desertion. I am therefore praying that the petition be dismissed but that the marriage be dissolved on the basis of my cross petition on the grounds of adultery committed by the Petitioner and co-cross Respondent”
Counsel contended that the Supreme Court has in many occasions held that parties are bound by their pleadings and will not be allowed to deviate from it. George & ors V. Dominion Flour Rules Ltd (1963) ALL NLR page 71, Oduka & Ors V. Kasumu & Ors (1968) NWLR 28, Aderemi V. Adedire (1966) NWLR page 398, Mandillas & Kalabenis Vs. Otoketi (1963) NSCC page 22. Having therefore both admitted that their marriage had broken down, irretrievably and therefore no live issues existed between the parties. The Court should:
therefore reject any call on it to call for oral evidence to prove facts already admitted by the parties in the pleadings. Counsel re-ieterated that this would amount to an academic exercise which the Supreme Court had warned that Courts must refraim from doing. See Gov. of Kaduna State V. Dede (1986) 4 NWLR Pt 38 page….. Adeogun V. Fashogbon (2008) 17 NWLR pt 1115 page 149 Akeredolu V. Akinremi (1986) 2 NWLR pt 25 page 710.
Learned counsel to the Petitioner/Respondent finally submitted that a court can grant a dissolution of marriage without calling for oral evidence upon a party conceding to the grant of the decree nisi that the marriage has broken down irretrievably. See Hymns V. Hymns (1971) 1 WLR 1474. Counsel therefore urged the Court to affirm the decree Nisi granted the Petitioner/Respondent.
Both parties in their pleadings and their oral Statements on oath agreed that their marriage had broken down irretrievably but for different reasons. The Petitioner/Respondent’s grounds for the breakdown are (a) Cruelty, (b) Intolerable behavour/Incompatibility (c) Cessation of conjugal rights since 1996 with no prospects of resumption as parties had been living apart since June 1996. Also on irretrievable breakdown of the marriage with no love, care, trust, respect or understanding between parties.
In the case of the Appellant she claimed that the marriage has broken down irretrievably on the ground that the 1st Respondent committed adultery with the Co-Respondent and the behaviour is unreasonable and that the Appellant cannot tolerate it. The dissolution of marriage under the Act is guided by the Matrimonial Causes Act, Cap 220 LFN 1990. Ibrahim V. Ibrahim (2007) 1 NWLR pt 1015 Page 383. Either party to a marriage may present a petition that their marriage has broken down irretrievably under S. 15(1) of the Matrimonial causes Act 1970.
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 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 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.
In addition to the above listed facts, section 16(1) of the Matrimonial Causes Act stipulates fourteen other facts, any of which if proved, would constitute the fact that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent. These facts are the commission of rape, sodomy, or bestiality by the respondent; habitual drunk or drug addiction for two years: frequent convictions for crime coupled with habitually leaving the petitioner without reasonable means of support; attempting to murder the petitioner or inflicting grievous bodily harm on her: refusal to comply with a maintenance order made in favour of the petitioner, and confinement in a mental institution for 5 years during the 6 years period immediately preceding the presentation of the petition. Thus the combined effect of sections 15 and 16 of the Act would give rise to twenty-two grounds of divorce rather than one ground as section 15 (1) tends to claim.
In Nigeria a court cannot dissolve a marriage or, declare a marriage to have broken down though it appears the marriage has broken down irretrievably unless one of the facts listed in S. 15(2) of the Matrimonial Causes Act is established by the Petitioner. Ibrahim V. Ibrahim (supra), Damulak V. Damulak (2004) 8 NWLR pt 874 page 151.
S. 54 (4) of the Matrimonial Causes Act mandates that the Court must hear and determine at the same time all proceedings instituted by the Petitioner. This also applies to a Cross Petition also instituted by a Cross Petitioner.
In matrimonial causes it is wrong for the trial Court to refuse to decide the petition of the cross petitioner one way or the other. If a Court fails to hear and determine a Cross Petition it is fatal to the proceedings. Anidiobi V. Anidiobi (2007) 2 NWLR pt 1017 page 1. In the instant case, the trial Court gave judgment on the pleadings and the Statements on oath of the parties. S. 15 (2) Marriage Causes Act provides that one of the grounds of the petition must be proved to show that the marriage has broken down irretrievably between the parties. The trial Judge held that since both parties pleaded that the marriage has broken down irretrievably there was no point calling oral evidence to prove the breakdown. Yes both parties have agreed that their marriage has broken down. This does not suffice to ground a dissolution of the marriage. The law provides and it is mandatory that one of the reasons for the breakdown must be proved as provided by S. 15(2) Matrimonial Causes Act. Ibrahim V. Ibrahim (supra). The Petitioner/Respondent in this case did not prove any of these grounds to ground a dissolution of their marriage. The appellant did not admit to any of the grounds on which the Petitioner filed his Petition and therefore cannot be assumed that the appellant had agreed on the grounds for the breakdown.
The appellant’s Cross Petition was not heard and determined as provided by law. See S. 54(4) Matrimonial Causes Act. Anidiobi V. Anidiobi (supra).
Failure of the Petitioner/Respondent to prove any of his grounds offends S. 15(2), Matrimonial Causes Act and renders the judgment amenable to be upturned. Also fatal to this appeal is the failure of the trial Court to hear and determine the Cross Petition of the Appellant.
See S. 54(4) Marriage Causes Act.
With the foregoing I hold that the appeal is meritorious and it is therefore allowed. The Petition and the Cross petition are to be remitted to the Chief Judge of Cross River State to assign to another Judge to be heard de-novo.
I make no orders as to cost.
MOHAMMED LAWAL GARBA, J.C.A.: I have read a draft of the lead judgment written by my learned brother Uzo I. Udukwe-Anyanwu, JCA in this appeal. I am in agreement that the failure by the High Court to consider at all, the cross-petition was fatal to its decision in the case.
For all the reasons set out in the lead judgment which I adopt, the appeal is allowed by me too.
JOSEPH TINE TUR, J.C.A: I have read in advance the judgment of my Lord, Uzo I. Ndukwe-Anyanwu, JCA and I concur. I wish to add the following comments of mine.
Engineer Ekanem Bassey Ekanem filed this petition for divorce against Mrs. Eno Bassey Ekanem who responded by a cross petition joining Imelda Essien as co-Respondent. In the course of time the parties amended their processes followed by the filing of a Reply. The matter proceeded to hearing. Engineer Ekanem Bassey Ekanem started to testify on 17-04-2007 as Pw1 when the Cross River State High Court Civil Procedure Rules, 2008 came into effect on the 1st day of July, 2008. To comply with the requirements of the Rules, the parties filed sworn depositions, each party giving different reasons why the marriage had irretrievably broken clown. Each party sought to blame the other for the breakdown of the marriage as indicated in the lead judgment of my Lord. On 23-7-2010 the petitioner’s learned Counsel, David Obande Esq. brought an application supported by affidavit praying that the learned trial judge should dissolve the marriage and enter a decree nisi since the parties were consensus ad idem that the marriage had irretrievably broken down. That what is admitted need no further proof at the trial, citing Section 75 of the Evidence Act, 2004. The Respondent/Cross Petitioner opposed the application by filing a counter-affidavit. Her learned Counsel buttressed this with a written submission. Nevertheless, without allowing the petitioner to complete his evidence nor the Respondent to testify and call witnesses to establish the grounds upon which she alleged that the marriage had irretrievably broken down, the learned trial judge granted the petitioners prayers and reliefs by entering judgment for the petitioner but dismissing the Cross-Petition hence this appeal.
The procedure adopted by the learned trial judge shut out the Respondent/Cross-Petitioner from being heard on the merit in order to substantiate the grounds upon which she alleged that the marriage had irretrievably broken down. There was also material conflicts in the affidavits the parties relied upon which could be resolved only by oral evidence. See Eboh v. Oki (1974) 1 SC 179 at 189-190; Falobi v. Falobi (1976) NMLR 196; Olu-Ibukun V. Olu-Ibadan (1974)4 UILR (Pt.3) 361 and Govt. of Ashanti v. Korkor 4 WACA 83. The Amended Petition reads thus:
“The petitioner, Engr. Ekanem Bassey Ekanem whose address is 10 Iso Oquo Street, Ibom Layout, Big Qua Town, Calabar Cross River State and whose profession and occupation is Engineering petitions the Court for a decree of DISSOLUTION OF MARRIAGE against the Respondent, Mrs. Eno Essien Ekanem whose address is United Bank for Africa, (UBA Plc) Head office, UBA House, 57 Marina, Lagos and whose occupation is banking on the ground of conduct which the Petitioner cannot reasonably be expected to bear to wit:
(A) CRUELTY
The Respondent is a very cruel person and takes delight in fighting the petitioner
(B) INTOLERABLE BEHAVIOUR/INCOMPATIBILITY
The Petitioner and the Respondent are incompatible and cannot live together. The Respondent is incurably harsh, selfish, fetish and has an insatiable lust for money. All these evil traits the Respondent started displaying shortly after the marriage and the petitioner has had to face it for so long at the risk of his mental and physical well being. The petitioner has been the object of verbal and physical abuse by the Respondent.
(C) CONJUGAL RIGHTS
That date to the cruelty and attacks on the Petitioner by the Respondent throughout the period of the marriage, the conjugal rights between the petitioner and the Respondent ceased since 1996 and there is no possibility of resumption. The Petitioner and the Respondent have been effectively living apart since 1996.
(D) IRRETRIEVABLE BREAKDOWN OF THE MARRIAGE
The marriage has broken down irretrievably as there is no love, care, trust, respect and understanding between the petitioner and Respondent.”
The Respondents/Cross-Petitioner’s answer and cross petition is as follows:
“SAVE as herein after expressly admitted the Respondent denies each and every allegation of fact as contained in the Petition as same were specifically pleaded and serially denied.
The Respondents also denies that the marriage has broken down irretrievably on account of cruelty on the side of the Respondent and also denies that the conjugal right of the parties ceased immediately preceding the filing of this petition and also denies that the petitioner and the Respondent have lived apart since 1996.
The Respondent states that she was a very humble wife to the petitioner and there was never a time she was harsh, selfish and states that it is the height of wickedness for the petitioner to allege that the Respondent was fetish. The Respondent is from a good Christian home and have always held firm to her Christian belief.”
In view of the above pleadings how could learned counsel to the petitioner argue, and the learned trial judge uphold the argument, that there was consensus ad idem establishing that the marriage had irretrievably broken down when the grounds for seeking divorce by both parties were not the same? The learned authors of Blacks Law Dictionary, 8th edition page 323 define the phrase “Consensus in idem” or “Consensus ad idem, as “An agreement of parties to the same things; a meeting of minds.” My humble view is that once the grounds upon which the petitioner and Respondents/Cross-Petitioner have sought divorce that the marriage has irretrievably broken down are divergent with each party laying blame on the other, there was no consensus id idem nor a meeting of minds and the learned trial judge ought to have heard evidence to arrive at a just decision as to which spouse is blame-worthy. This will enable the learned trial judge to determine the kind of reliefs or remedy that would be just in the given circumstances. A plaintiff’s case may look unimpeachable yet when the whole evidence is heard from the witnesses and upon the defendant and his witnesses testifying, that may not be so. The learned trial judge was not justified in this case in stopping the hearing of the petition at the stage he did on a motion for judgment based on purported admissions without the evidence of the Respondent/cross-petitioner. The only remedy is to order a retrial. See Victoria Alabi v. Solomon N. Aiyelabola (1942) 8 WACA 43. For the fuller reasons given I also allow the appeal and abide by the orders of my Lord.
Appearances
IMO INYANG ESQ.For Appellant
AND
INI OKULAJA (MRS)For Respondent
