MR. ABDULAZEEZ AKINLOLU v. DR. AMINAT YEWANDE AKINLOLU
(2019)LCN/12896(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 20th day of March, 2019
CA/IL/50/2017
RATIO
COURT AND PROCEDURE: DUTY OF A COUNSEL
“It is fundamentally trite, a counsel as a veritable minister in the hallowed and sacred temple of justice, owes an onerous duty to the Court to precisely give an account of whatever transpired in the course of the proceedings of the Court. As aptly posited by the Respondent’s learned counsel, the record of proceedings of the Court is the most authentic evidence of what transpired at the Court below in the course of the hearing of the petition. See ANDREW VS. INEC (2017) 7 ? 12 MJSC; NGIGE VS. OBI (2006) 14 NWLR (Pt. 999) 1 @ 209 E ? F; 231 ? 232 B ? H.” PER IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.
FAMILY LAW: WHERE THERE IS A POSSIBILITY OF RECONCILIATION
“Where the Court is of the considered opinion that there is a reasonable possibility of such a reconciliation, it may: (a) Adjourn the proceedings to afford these parties an opportunity of becoming reconciled. (b) With the consent of those parties, interview them in chambers, with or without counsel, as the Judge thinks proper with a view to effecting a reconciliation. (c) Nominate a person with experience or training in marriage conciliation, or in special circumstances, some suitable person, to endeavour with the consent of the parties, to effect a reconciliation. See Section 11(1) of the Matrimonial Causes Act (Supra).” PER IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.
INTERPRETATION: MEANING OF MATRIMONY
“The word “matrimony”, as a noun, is derived from Latin-matrimonium which literally denotes marriage; the act or state of being married. See BLACK?S LAW DICTIONARY, 7th Edition 1999 @ 992.” PER IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.
JUSTICES
IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria
HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria
BALKISU BELLO ALIYU Justice of The Court of Appeal of Nigeria
Between
MR. ABDULAZEEZ AKINLOLU Appellant(s)
AND
DR. AMINAT YEWANDE AKINLOLU Respondent(s)
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A. (Delivering the Leading Judgment):
The instant appeal is a natural fallout of the judgment of the Kwara State High Court holden at Ilorin, delivered on March 25, 2015 in suit No. KWS/244/2013. By the judgment in question, the Court below, Coram Halima Saleeman, J; dismissed the Appellant?s petition for a decree of dissolution of marriage between him and the Respondent.
BACKGROUND FACTS
The circumstances surrounding the appeal are gleanable from the record of appeal. It is obvious from the record, that the Appellant as a bachelor got married to the Respondent (Nee-Aminat Yewande A. Jimotokan) as a spinster and on June 29, 2006 under the Marriage Act at Agege Local Government Marriage Registry, Lagos state. Both parties were domiciled at No. B19 Royal Vally Estate, Ilorin Kwara State. The marriage has been blessed with three children: (i) Yusuf Adebola Akinlolu, male born on June 1, 2007; (ii) Fatimah Adedunni Akinlolu, Female, born on September 27, 2008; and (iii) Abdulmalik Adedeji Akinlolu, Male, born on September 4, 2011.
The genesis of the appeal is traceable to August 16, 2013. Indeed, that was the day the Appellant caused a petition for the dissolution of the said marriage to be instituted against the Respondent in the Court below. The petition was predicated upon a total of 15 grounds, Viz:
3. The Petitioner avers that since the last one and half years, the Respondent has totally changed from her old self and behaved in such a way that the Petitioner cannot be reasonably expected to live with the Respondent.
4. The Petitioner avers that the Respondent is aggressive and extremely quarrelsome which makes peace in the home and the union extremely impossible. The Petitioner shall during trial lead evidence to establish the veracity of this fact.
5. The petitioner avers that the Respondent is a serial liar who lies about everything to the direct irritation of the Petitioner.
6. The petitioner avers that the union is now devoid of love and trust which has resulted in the stoppage of conjugal relationship and pose serious threat to their continuous cohabitation as husband and wife as they both feel unsafe with each other.
7. The Petitioner avers that the above unfortunate situation is compounded by a baseless suspicion of the Petitioner by the Respondent that the Petitioner wishes her evil and at a reconciliatory meeting organized by the Petitioner at the Respondent’s parent’s home in Lagos in the presence of their both parents and other relations the Respondent spuriously alleged that the Petitioner gave her poisoned food: The allegation which thoroughly embarrassed the Petitioner and put him in a very bad light before his in laws and parents.
8. The petitioner avers that the Respondent constantly engage in provocative acts to the irritation of the Petitioner. The Petitioner shall at the trial lead evidence to substantiate this fact.
9. The petitioner further to the above avers that the Respondent violates his instructions with impunity thus, always brings the union into constant and avoidable frictions, and to avoid tantrums, our families and friends have waded in on several occasions to safe the union but the Respondent by her conduct has always rendered all their respective efforts fruitless. Albeit, at every reconciliatory meetings, the Respondent always feel and look sober, she will even apologize for her misdeeds but just for her to go back to her old reprehensible ways which the Petitioner found extremely unacceptable to live with, conducts which has discouraged the family peace makers.
10. The Respondent was at the time of marriage, a third year medical student college of medicine, University of Ilorin during which the Petitioner supported her both morally and financially.
11. The petitioner avers sequel to the above that notwithstanding his support for the Respondent, the Respondent has refused to reciprocate this good gesture as she never supported the Petitioner’s academic career progress. The Petitioner is presently a PhD student of University of Ilorin and the Respondent knowing fully well that the Petitioner needs her moral support and cooperation more than before; she however sparks up trouble at will and makes the condition for reading, research and concentration impossible.
12. The Petitioner avers that on account of the Respondent’s conducts and behaviours he cannot reasonably continue to live with her as husband and wife.
13. The Petitioner avers that the marriage between him and the Respondent has broken down irretrievably by reason of all the grounds specified in this humble petition.
14. The Petitioner plans within his means to take good care of the three children the marriage and make sure they continue their education under his sponsorship in any institution and discipline of their choice up to the University level.
The Appellant there by urged upon the Court below for the following declaratory reliefs:
1. A DECLARATION that the Respondent?s behavior is one which the petitioner cannot reasonably be expected to live with.
2. A DECREE OF DISSOLUTION of his marriage to the Respondent as it has broken down irretrievably.
3. An order granting the petitioner the custody of the three children of the marriage namely Yusuf Adebola Akinlolu, male Fatimah Adedunni Akinlolu, female and Abdulmalik Adedeji Akinlolu, male. Contrariwise, the Respondent?s Reply (Answer) to the petition, dated June 2, 2014, spans a total of 14 paragraphs:
1. Respondent admits paragraph 1 of the petition to the extent that she is married to the petitioner but never attended University of Ilorin. Respondent further states that she was a 400 Level student of Olabisi Onabanjo University as at the date of their marriage.
2. Respondent admits paragraph 2 to the extent that the petitioner was away to the United States of America for two years during the 7th years of their married. (sic).
3. Respondent denies paragraph 3 of the petition and further states that it is the petitioner who has been behaving in a strange manner following his inability to complete him (sic) PHD programme and my refusal to allow him control my earnings as a medical practitioner on houseman ship at the University of Ilorin Teaching Hospital.
4. Respondent denies paragraph 4 absolutely and avers that it is the petitioner who has become aggressive due to psychological trauma arising from his failed attempt to advance in his Academic career.
5. Respondent denies paragraph 5 and further states that it is the petitioner who is always disillusioned and unnecessarily suspicious.
6. Respondent admits paragraph 6 of the petition and further states that it is as a result of petitioner?s suspicion and lack of trust which is a direct consequence of him refusal to religiously take the two weeks anti-depressant drug prescribed for him by a Behavioral Scientist.
7. Respondent denies paragraph 7 and avers that it is the petitioner who has been causing her emotional pain by his frivolous allegations.
8. Respondent denies paragraph 8 entirely and further avers that it is the petitioner who is unnecessarily quarrelsome, easily irritated, intolerant and insatiable.
9. Respondent denies paragraph 9 and avers that it is the petitioner who is always involving outsiders in matters which ordinarily ought to be resolved between the two couples. As a humble wife, respondent would always apologise in the interest of peace no matter how frivolous the allegations are.
10. Respondent denies paragraph 10 and further state that as a 400 Level student of Olabisi Onabanjo University, Ogun State, she enjoyed scholarship from the Islamic Development Bank (IDB) till the end of her studies. A copy of her Degree Certificate and scholarship letter from Islamic Development Bank is hereby pleaded.
11. The Respondent strenuously denies paragraph 11 of the petition and put the petitioner to the strictest proves of same. It is further stated that she has supported the petitioner in his academic pursuit financially and otherwise, to the extent of facilitating his pursuit PHD Admission at the University of Ilorin and helping to re-instate his employment at the same school.
12. The Respondent contends that she cannot continue to live with the petitioner because of his cruel behavior locking out of the matrimonial home on several occasions without allowing her access to her personal belongings and causing her unwarranted embarrassment in the neighborhood.
13. Respondent further state that the petitioner has disappeared with two out of the children of the union since September 27th 2013.
14. Respondent admits paragraph 13 to the extent that it is the petitioner who is frustrating all peace moves to settle the dispute amicably.
Whereupon, the Respondent equally prayed the Court for the following reliefs:
1. AN ORDER compelling the petitioner to deliver custody of the two children to the respondent, pending the final determination of this suit.
2. AN ORDER granting the respondent the custody of the three children of the marriage after the final determination of the suit.
3. AN ORDER, a warding monthly maintenance fee of N50,000 only against the petitioner in favour of the respondent.
4. AN ORDER compelling the petitioner to be reasonably responsible for the up keep and education of the three children having regard to his means and earnings, as a lecturer in the Department of Anatomy, University of Ilorin.
Pleadings having been duly filed and exchanged by the respective parties, the petition proceeded to trial. At the end of which, the Court below delivered the vexed judgment to the conclusive effect:
In conclusion, I hold that the petitioner has failed to prove that the marriage has broken down irretrievably and I hereby refuse to grant the petition for a decree of dissolution of the marriage.
The petition and it is hereby dismissed.
The Court had earlier in the course of the judgment awarded the custody of Yusuf Akinlolu (a boy of 7 years) and Fatimah Akinlolu (a girl of 5 years) to the Respondent. This is in addition to the custody of Abdulmalik Akinlolu (a boy of 13 years) granted to the Respondent. The Court equally ordered the Appellant to pay to the Respondent the sum of N40,000.00 for the general upkeep of the three children in addition to contributing to the payment of their school fees, as at when due.
Not unnaturally, the judgment of the Court below has not gone down well with the Appellant. Thus, on April 10, 2015, the Appellant filed in the Court below a notice of appeal which is predicated upon a total of 9 grounds, thereby urging this Court to set aside the vexed judgment and substitute same with an order dissolving the marriage having broken down irretrievably, granting the custody of the three children of the marriage thereto, and setting aside the order for the payment of maintenance on account of the custody of the children to the Respondent.
On January 30, 2019 when this appeal came up for hearing, the learned counsel addressed the Court and adopted their respective briefs of argument, thus, resulting in reserving judgment. The Appellant?s brief, settled by Adewale O. Oseni Esq, spans a total of 22 pages. At page 6 of the brief, three issues have been raised for determination, Viz:
1. Whether the trial judge was right in adjudicating over the petition after the break down of conciliation presided over by him pursuant to Section 11 (1) (b) of the Matrimonial Causes Act without the request of the parties as provided by Section 12 of the Act.
2. Whether the judgment of the Learned Trial Judge is not perverse and against the weight of evidence having regard to the uncontroverted evidence establishing that the marriage between the parties has broken down irretrievably.
3. Whether the trial Court was right in granting custody of the children to the Respondent which is an ancillary order in the petition where the principal petition for dissolution of marriage fails.
The issue NO.1, distilled from ground 9 of the notice of appeal, is canvassed at pages 6 ? 10 of the brief. In the main, it’s submitted, that the Court below lacks the requisite jurisdiction to hear the petition for dissolution of marriage without a request from the parties after presiding over a conciliation meeting styled as pre-trial conference. See Sections 11 (1) (b) and 12 of the Matrimonial Causes Act; MENAKAYA VS. MENAKAYA (2001) SMC 1, 294 @ 312, 338; MADUKOLU VS. NKEMDILIM (1961) NSCC (VOL.2) 374.
It is submitted, that the judge was not competent to hear the petition, as the condition precedent to the exercise of jurisdiction i.e the request from the parties to hear the petition after the reconciliation (pre-trial conference) failed was not made. See OKEREKE VS. YAR?ADUA (2008) ALL FWLR (Pt. 430) 646 D ? E; OKOYA VS. SANTILLI (1994) SCNJ 333 @ 364; GENEVA VS. AFRIBANK (NIG) PLC (2013) ALL FWLR (Pt. 702) 1652.
The Court is urged to resolve the issue 1 in favour of the Appellant.
The issue No. 2 is extensively argued at pages 10 – 18 of the brief. In the main, it is submitted that the Appellant?s evidence at pages 141 – 146 of the record, to the effect that the Respondent behaved in a way that cannot be reasonably expected to live with her, was neither challenged nor controverted by way of cross examination or any shred of evidence from the Respondent. Thus, an unchallenged or uncontroverted evidence is deemed admitted and established. See NWAOGU VS. ATUMA (2013) ALL FWLR (Pt. 693) 1893 @ 1997 et al.
Further submitted, that facts placed before the Court below if dispassionately evaluated were sufficient to ground a petition for dissolution. The failure of trial Court to properly evaluate evidence before it would lead to an appeal being allowed and the judgment set aside. See NWACHUKWU VS. EGBUCHU (1990) 3 NWLR (Pt. 139) 435; MAYA VS. OSHUNTOKUN (2001) 11 NWLR (Pt. 723) 62.
The Court is urged to resolve issue 2 in favour of the Appellant and allow the appeal.
The issue No. 3 is argued at pages 18 – 20 of the brief, to the effect that the dismissal of the petition for dissolution of marriage implies that marriage subsists between the parties. Therefore, there is no basis for orders on custody and maintenance of the children to any of the parties. See NABORE PROPERTIES LTD VS. PEACE ? COVER (NIG) LTD (2015) 2 NWLR (Pt. 1443) 286, @ 312 C – E.
It was submitted, that the provision of Section 75 (2) of the Matrimonial Causes Act is not intended to radically circumvent the provision of Section 75 (1) of the Act by granting custody a relief that is absolutely dependent on the principal relief of dissolution of marriage.
Further submitted, that the decision of the Court below in this circumstance is without basis, and a perversion occasioning a miscarriage of justice to the Appellant who has lost his quest for freedom from the marriage, and the custody of the children thereof. See ODULAJA VS. WEMA BANK LTD (2015) NWLR (Pt. 464) 299 @ 312 C – D, UNILORIN TEACHING HOSPITAL VS. ABEGUNDE (2015) 3 NWLR (Pt. 1447) 421 @ 456 D – G; et al.
The Court is urged to resolve the issue 3 in favour of the Appellant.
Conclusively, the Court is urged upon to allow the appeal, set aside the whole judgment of the Court below, and dismiss the reliefs granted in favour of the Respondent.
Contrariwise, the Respondent?s brief, filed on December 10, 2018, spans a total of 18 pages. At page 4 of the brief, the Respondent has deemed it expedient to adopt the Appellant?s three issues for determination of the appeal. The issue No.1 is canvassed at pages 4 ? 8, to the effect that there was never a time the court below ordered for the conciliation and/or pre-trial conference between the parties. What transpired in the open Court on 26/10/2014, was the Appellant counsel?s application that the matter be moved to the chambers, which the Court below obliged. See pages 137 – 138 of the record.
Further submitted, that on 30/04/2014, counsel to the parties informed the Court of their inability to achieve success with respect to the settlement of the disputes between the Appellant and the Respondent. Thus, the Court adjourned the petition for hearing. See page 40 of the Record.
Copiously alluding to the provisions of Sections 11 (1) (a) (b) (c) (2) and 12 of the Matrimonial Causes Act, it was contended that the Court below had not for once sat a conciliator to reconcile the parties to the marriage. Therefore, Section 12 of the Matrimonial Causes Act (Supra) is in applicable and of no moment.
That assuming, albeit not conceding, that the trial judge ever sat as a conciliator to reconcile the parties, their consent would be deemed to have been sought and obtained as they were ably represented by the respective counsel thereof in the proceedings on 07/07/2014, where in the confirmed their readiness to goaled with the hearing of the petition. See page 140 of the Record.
It was contended, that though the trial judge mentioned pre-trial in the judgment, that cannot be upgraded to reconciliation. See Order 33 of the Kwara State High Court (Civil Procedure) Rules, 2005. As such, the jurisdiction of the Court below has not in any way been ousted by not requesting for the consent of the parties to the proceedings.
The Court is urged to resolve the issue no.1 in favour of the Respondent.
The issue No. 2 is canvassed at pages 8 – 12 of the brief, to the effect that the Appellant has not satisfied the conditions laid down in Section 15 (2) of the Matrimonial causes Act to warrant the Court below to dissolve the marriage between the parties.
It was submitted, that Appellant has the burden of proving that the Respondent had behaved in such a way that the Appellant cannot reasonably be expected to live with her. See NANNA VS. NANNA (2006) 3 NWLR (Pt. 966) 1; KATZ VS. KATZ (1971) 3 ALL ER 219.
Further submitted, that the Respondent’s only sin committed against the Appellant was that she reported his alleged strange behaviour which she observed as a Medical Doctor to his uncle.
The Court is urged to hold that the Appellant has not discharged the onus placed thereupon by Section 15(2) (c) of the Matrimonial Causes Act.
The Issue No. 3 is argued at pages 12 – 16 of the brief, to the effect that the fact that the Court below had not dissolved the existing marriage between the parties, it was not precluded from granting custody where there were evidence given against the Appellant of his conduct and character to the well-being of the children.
It was submitted, that where the interest and welfare of the children of the marriage is at stake, Sections 71 and 75 (2) of the Matrimonial Causes Act give the Court a wide latitude to give paramount consideration to the interest of the children given the cruelty and recalcitrant nature of the Appellant towards the children of the marriage. Pages 27 – 32, 34 – 38, 147 – 148, lines 55 – 60 of the record have been copiously alluded to the effect that the evidence in chief of the Respondent was never challenged by way of cross examination regarding the Appellant was cruel and not fit to have the custody of the children of the marriage. See ALABI VS. ALABI (2007) 9 NWLR (Pt. 1039) 297; et al.
The Court is urged to so hold.
Conclusively, the Court is urged to dismiss the appeal and uphold the decision of the Court below in question.
Having amply considered the nature and circumstances surrounding the appeal, the submissions of the learned counsel contained in the respective briefs of argument thereof vis–vis the record of appeal, as a whole, I am appreciative of the fact that the three issues raised at page 6 of the Appellant?s brief are germane to the grounds of the notice of appeal. Therefore, I hereby adopt the said three issues for the ultimate determination of the appeal.
ISSUE NO.1
As copiously alluded to above, the first issue raises the very vexed question of whether the Court below was right in adjudicating over the petition after the break down of reconciliation presided over by the trial Judge pursuant to Section 11(1) (b) of the Matrimonial Causes Act without the request of the respective parties as provided by Section 12 of the Act. The first issue is distilled from ground 9 of the notice of appeal.
The word “matrimony”, as a noun, is derived from Latin-matrimonium which literally denotes marriage; the act or state of being married. See BLACK?S LAW DICTIONARY, 7th Edition 1999 @ 992.
For the purpose of resolution of the first issue, it is imperative to critically consider the provisions of the Matrimonial Causes Act (Supra), most especially Sections 11 and 12 thereof. By virtue of Section 11 of the Matrimonial Causes Act, the trial Court has the discretionary power to accord due consideration to the possibility of a reconciliation of the parties to the marriage, unless the proceedings before the Court are of such a nature that it would not be appropriate to do so.
Where the Court is of the considered opinion that there is a reasonable possibility of such a reconciliation, it may:
(a) Adjourn the proceedings to afford these parties an opportunity of becoming reconciled.
(b) With the consent of those parties, interview them in chambers, with or without counsel, as the Judge thinks proper with a view to effecting a reconciliation.
(c) Nominate a person with experience or training in marriage conciliation, or in special circumstances, some suitable person, to endeavour with the consent of the parties, to effect a reconciliation. See Section 11(1) of the Matrimonial Causes Act (Supra).
It is equally provided in Subsection (2) of Section 11 of the Act:
(2) if, not less than fourteen days after an adjournment under Subsection (1) of this section has taken place, either of the parties to the marriage requests that the hearing be proceeded with the judge shall resume the hearing, or the proceedings may be dealt with by another judge as the case may require as soon as practicable.
However, in the event of the reconciliation being aborted, it is imperative for the trial judge to obtain the consent of the parties before proceeding to hear and determine the petition on the merits. The provision of Section 12 of the Matrimonial Causes Act is very much emphatic on that:
12. Hearing when reconciliation fails.
Where a Judge has acted as a conciliator under Section 11 (1) (b) of this Act but the attempt to effect a reconciliation has failed, the Judge shall not except at the request of the parties to the proceedings; continue to hear the proceedings, or determine the proceedings: and in the absence of such a request, the proceedings shall be dealt with by another Judge.
It is obvious from the record, that the proceedings of the Court below span a total of 20pages 135 – 155. The proceedings were commenced on 06/11/2013. On that date, A. S. Oseni Esq., appeared for the Appellant (petitioner), while Tunde Olomu Esq. appeared (with Olayinka Kolawole Esq.) for the Respondent. The petition was adjourned to 26/11/13 for hearing of Olomu?s Preliminary Objection. On the said 26/11/2013, Olomu Esq., informed the Court that there was a move to settle the matter with the petitioner.
However, on 12/02/2012, A. S. Oseni Esq., submitted thus:
Petitioner’s counsel:
It is unfortunate to report to the Court that settlement in this case has broken irretrievably. All efforts to bring these parties to term to settle proved abortive. We pray for a date to file a response to the address of the respondent in support of the preliminary objection filed by the respondent.
On the part thereof, the Respondent?s learned counsel, S. U. Jabata Esq. (with A. S Adeboye Esq.) responded:
Respondent counsel:
That is the position of things we suggest.
Whereupon, the Court below ruled:
Court:
Case is adjourned to 26/02/2014 for report of settlement or hearing of the preliminary objection.”
Then on the said 26/02/2014, when the matter came up, A. S. Oseni Esq. for the Appellant submitted:
Petitioner’s counsel:
Case is for report of settlement or hearing of the objection. We humbly apply that the matter be moved to the chambers.
Respondent’s counsel:
We will appreciate if we were heard in camera.
Court:
The Court will proceed to chambers after day?s proceeding as the parties want to be heard in camera.
Again, on 30/04/2014, when the matter came up, S. U. Jabata Esq., submitted:
Respondent?s counsel:
The case is for report of settlement. We want to informe (sic) the Court that settlement has broken down. We therefore want to move our preliminary objection earlier filed.
Then A. S. Oseni Esq., responded:
Petitioner?s counsel:
I want to confirm that despite our effort we could not settle the parties.?
On his part, Jabata Esq., rather half-heartedly, submitted:
Respondent?s counsel:
We now want to withdraw our preliminary objection so that the matter can be heard on its merit.”
The Court below, not unexpectedly, proceeded to strike out, Jabata?s preliminary objection along with the Written Address filed on 12/01/2013 and adjourned the matter to 19/05/2014.
Ultimately, the matter proceeded to hearing resulting in the vexed judgment of the Court below.
Thus, against the backdrop of the foregoing far-reaching highlight, it would be highly preposterous for the Appellant to allege, as he did, that the hearing of the petition thereof by the Court below was in breach of the provisions of Sections 11 and 12 of the Matrimonial Causes Act (Supra).
As aptly posited by the Respondent?s learned counsel, the Court below was on terra firma to hear and determine the Appellant’s petition.
I have no doubt in my mind, that the jurisdictional competence of the Court below has not in any way been fettered to hear and determine the petition as presented thereto by the Appellant. The record of proceedings as copiously highlighted above, has debunked the Appellant?s highly misplaced agitation that the consent of the parties had not been sought and obtained before the Court below proceeded to hear and determine the petition. And I so hold.
It is fundamentally trite, a counsel as a veritable minister in the hallowed and sacred temple of justice, owes an onerous duty to the Court to precisely give an account of whatever transpired in the course of the proceedings of the Court. As aptly posited by the Respondent’s learned counsel, the record of proceedings of the Court is the most authentic evidence of what transpired at the Court below in the course of the hearing of the petition. See ANDREW VS. INEC (2017) 7 – 12 MJSC; NGIGE VS. OBI (2006) 14 NWLR (Pt. 999) 1 @ 209 E – F; 231 – 232 B – H.
In the circumstance, the answer to the first issue is undoubtedly in the affirmative, and same is hereby resolved against the Appellant.
ISSUE NO.2
The second issue raises the question of whether the vexed judgment of the Court below was not perverse and against the weight of evidence, having regard to the uncontroverted evidence establishing that the marriage between both parties has broken down irretrievably. The second issue is distilled from grounds 1, 2, 3, 5 and 6 of the notice of appeal.
The argument of the Appellant, in the main, is that he has proved his case to justify the dissolution of the marriage in accordance with the provisions of Section 15 (2) (c) of the Matrimonial Causes Act (Supra). Contrariwise, however, the Respondent vehemently postulated that the Appellant has not satisfied the conditions laid down in the said Section 15 (2) (c) of the Matrimonial Causes Act to warrant the dissolution of the marriage thereof with the Respondent.
Instructively, a petition by a party to a marriage for a decree of dissolution of that marriage may be presented to the Court by either party thereto, upon the ground that the marriage has broken down irretrievably. The Court seized of the petition for a decree of dissolution of a marriage shall adjudge the marriage to have broken down irretrievably upon the petitioner satisfying the Court of one or more of the following conditions:
(a) That the Respondent has wilfully 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.
(d) That the respondent has deserted the petitioner for a continuous period of at least one year immediately preceding thepresentation of the petition;
(e) That the parties to the marriage have lived a part 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 continuance period of at least three 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 or restitution of conjugal rights made under this Act;
(h) That the other party to the marriage has been absent from the petitioner for such time and in such circumstances as to provide reasonable grounds for presuming that he or she is dead.
See section 15 (1) and (2) (a) ? (h) of the Matrimonial Causes Act (Supra).
In the instant case, in an effort to prove his petition against the Respondent, before the Court below, the Appellant pleaded and testified that he got married to the Respondent because he was in love with her. That, he tried to be the best husband, he could. However, in 2011, he noticed gradual changes and he had to speak to her but she started lying, being provocative and insultive.
According to the Appellant:
I called her and spoke with her to resolve issue. I gave her a book on how to be a loving wife to read. Video cassettes and preaching of Islamic clergys (Sic) and family meruber (Sic) but all did not workout. She kept threatening me to go to Court. If I want to divorce. The crises could not be resolved and she worked to declare me mentally ill to have the custody of the children? See pages 141 ? 142 of the record.
The Appellant testified that in 2013, the Respondent would go out from morning till evening or night without any excuse. The fourth time, he asked the Respondent where she was coming from that late night and she answered from her lawyer. According to the Appellant:
I asked her to go and sleep there and she went back without apologizing. She only came back and stood by the window to say that I?m mentally ill and when I come to my senses will call her back.
The Appellant equally testified that his marriage with the Respondent a year preceding the filing of the petition was really bad:
In the absence of truth and trust, she has behaved in a way that cannot be reasonably expected to live with her. See pages 141 – 146 of the Record.
The Respondent opened her case at the close of the Appellant?s case on 07/07/2014. She testified that the first time a 3rd party came into their marriage was when the Appellant pronounced divorce upon her. She had to invite the Appellant?s uncle. According to the Respondent:
He always locked me out if I did not come home by 7.00p.m. When I was a Corper at UNILORIN Permanent Site of UITH; there was no time of resumption and on closing. My schedule at UNILORIN UITH had no time of resumption and closing.
In 2012. to swear to affidavit of peace in the house. My husband locked, In the children room. I called his uncle to see what he was doing. The uncle settled the matter. I broke the door to prevent him from locking the children in. He insisted on making an affidavit. He locked me out and I had to sleep in the car because he did not allow me in until 12 mid night when he allowed me in.
The Respondent narrated further, that the 2nd day the Appellant did not allow her in, she went to her brother?s house where she stayed for three days before the Amir (leader) of the Appellant?s society brought her back home. The Respondent equally testified that she had been a dutiful wife and that her parents had intervened in this matter in Lagos with the Appellant and his mother also in attendance.
The Court below, after having reviewed the case on each side of the divide, found at page 162 of the record to the conclusive effect:
Proceeding under the Matrimonial Causes Act is sui generis and require special procedure for its enforcement.
Where the petitioner fails to so prove, the petition for dissolution of the marriage will be dismissed notwithstanding the fact that the divorce is desired by both parties. In the instance (sic) case aside the fact that the allegations against the Respondent were not proved on reasonable grounds, I found that there is nothing in the grounds put before the Court which is ‘weighty’ and ‘grave’ in nature as to constitute intolerable conduct to aid the allegation that the marriage has broken down irretrievably by the intolerable conduct of the Respondent. See the case of AKINBUWA VS. AKINBUWA (1998) 7 NWLR (Pt. 559) 661; NANNA VS. NANNA (2006) 3 NWLR (Pt. 966) 7.
Having critically, albeit dispassionately, considered the nature and circumstances surrounding the instant case, the pleadings and evidence adduced on record, I am unable to appreciate, let alone uphold, the foregoing findings and conclusion of the Court below.
It is obvious from the record, that one of the very thorny issues militating against the peaceful marital cohabitation by the parties as a couple is the persistent allegation regarding the mental state of health of the Appellant. The Appellant has pleaded and given evidence regarding the fact that he tried to be the best husband to the Respondent but that the Respondent:
Kept threatening me to go to Court if I want to divorce. The crises could not be resolved and she worked to declare me mentally ill to have the custody of the children.”
On the part thereof, the Respondent equally testified at page 147 of the record to the effect inter alia:
My husband invited me to Abeokuta to see Dr. Saki at Aro where Dr. Saki told both of us how my husband came to get a mental certificate for divorce and children custody and he carried out on him and the result of the test. The Dr. Saki and my husband started to exchange words. Dr. Saki told us that the conclusion from the test or examination carried on him showed he had persecutory delinquency. The 1st diagnosis made on was by Dr. Olanrewaju and the uncle told me he had depression.
The Respondent also stated:
As a medical doctor, I know the procedure in clerking patient asking questions. Dr. Saki at Aro introduced that the petitioner came for mental examination. I can?t remember when he was taken to Dr. Olanrewaju when I saw him at Sadiku Hospital. My husband later invited me to meet him at Sadiku Hospital when I was opportune to read Dr. Olanrewaju?s documentation on him.
Contrariwise, the Respondent avers in paragraphs 12 and 15 of the answer to the petition:
12. The Respondents contends that she cannot continue to live with the petitioner because of his cruel behavior: locking out of the matrimonial home an on several occasions without allowing her access to her personal belongings and causing her unwarranted embarrassment in the neighborhood.
15. Respondent avers that petitioner is not in good mental and psychological condition to have custody of the children. An affidavit as to declaration of fact.
In paragraph 13 of Reply to the Respondent?s Answer to the petition, the Appellant equally avers:
Further to the above paragraph the petitioner avers that the Respondent has always maintained her aggressive and provocative actions against the petitioner whenever she visits Abeokuta and continued to make abusive statement against the petitioner as well as calling him mentally ill ever in the presence of neighbors and the children.
Against the backdrop of the foregoing pleadings and pieces of evidence of the respective parties, there is every cogent reason for me to appreciate the Appellant’s dilemma of being stigmatized by the Respondent as mentally ill and unstable. Thus, from the circumstances of this case, the fact that the marriage between the Appellant and the Respondent had broken down irretrievably, is no longer in doubt. Parties are ad idem, that the Appellant had ever pronounced a divorce upon the Respondent. However the couples were prevailed upon by some family elders to stay together and weather the storm, so to say, for better for worse. Yet, it is a trite fundamental Quranic precept:
When ye divorce women and they fulfil the term of their (Iddah), either take them back on equitable terms or set them free on equitable terms;
But do not take them back to harm them, (Or) take undue advantage thereof. If any one does that, he wrongs his own soul
And fear Allah, and know that Allah is well acquainted with all things. See the Holy Qur?an (Al. Baqrah) 1: 231.
Obviously, there is no longer any love lost between the parties.
Indeed, it is obvious from the pleadings and evidence on record, that in the absence of any semblance of love between the parties, there is no longer any breathing space in the matrimonial home for the hitherto loving couples to cohabit lovingly and peacefully. The only viable option, in my considered view, is to dissolve the marriage and allow the parties to look elsewhere for possible potential life partners.
In the circumstance, the answer to the second issue is in the affirmative, and it is hereby resolved in favour of the
Appellant.
ISSUE NO.3
The third issue raises the question of whether the Court below was right in granting custody of the children to the Respondent which is an ancillary order in the petition where the principal petition for dissolution of marriage fails. The third issue is distilled from grounds 4, 7 and 8 of the notice of appeal.
Under Section 75 of the Matrimonial Causes Act (Supra), it is provided:
(1) Save as provided by this section, the Court shall not make an order under this part of this Act where the principal relief has been dismissed.
However, the above provision notwithstanding, it is equally provided in Subsection (2) of Section 75 (Supra):
(2) Where-
(a) The petition for the principal relief has been dismissed after a hearing on the merits; and
(b) The Court is satisfied that-
(i) The proceedings for the principal relief were instituted in good faith to obtain that relief and
(ii) There is no reasonable likelihood of the parties becoming reconciled, the Court may, if it considers that it is desirable to do so, make an order under this part of this Act, other than an order under Section 72 of this Act.
(3) The Court shall not make an order by virtue of Subsection (2) of this Section unless it has heard the proceedings for the order at the same time as, or immediately after the proceedings for the principal relief.
(4) In this Section, ‘principal relief’ means relief of a kind referred to in paragraph (a) or (b) of the definition of matrimonial cause in Section 114 (1) of this Act.
In the instant case, it is apparent from the record, that the Court below took into consideration (page 165 of the record) of the provisions of Section 75 (1) and (2) of the Matrimonial Causes Act (Supra) in the course of making the order for the custody of the children in favour of the Respondent. Most especially, at page 171 of the record, the Court below stated:
I am of the firm view that the two children with the petitioner will be happier with the Respondent as well as having their younger brother with them and they will have their pairs (sic) around to play with instead of a solitude and regimentary live (sic) they share with the petitioner. This Court is also of the view that they would be adequately taken care of in terms of feeding, medicals, education and clothing since the mother has a good job.
I think, I cannot agree more with the foregoing finding of the Court below, which said finding is undoubtedly cogent, unassailable and duly supported by the pleadings and evidence on record.
In the circumstance, it is my considered opinion that the answer to the third and last issue is most inevitably in the affirmative, and it is hereby resolved against the Appellant.
Hence, having resolved the first and third issues against the Appellant, while the second in favour thereof, there is no gain-saying that the instant appeal, succeeds in part. Thus, the appeal being adjudged to be meritorious in regard to only the second issue, it is here by so allowed in part.
Consequently, the judgment of the Kwara State High Court delivered on March 25, 2015 in regard to the dismissal of the petition is hereby set aside. In its place, an order is hereby made granting the petition and dissolving the marriage on the ground that the marriage between the Appellant and Respondent has irretrievably broken down.
Contrariwise, however, having resolved the first and third issues against the Appellant, I have deemed it not only expedient but equally imperative to affirm the aspect of the judgment of the Court below, thereby granting the custody of the children of the marriage to their mother, the Respondent.
Parties shall bear their respective costs of litigation.
POSTSCRIPT
Before placing the very last dot to this judgment, I have deemed it expedient to reiterate the trite fundamental doctrine, that in the course of the determination of the petition for divorce or any aspect of the Matrimonial Causes Act for that matter, a Court (Judge) is cloaked with an unfettered discretionary power to make such order regarding the subject matter in dispute as it deems fit. Undoubtedly, that discretionary power is in no way fettered, albeit it must be exercised not only judicially, but equally judiciously. In the case of HINE VS. HINE (1962) 1 WLR 1124, the Court of Appeal, England postulated:
[T]hat the jurisdiction of the Court over family assets is entirely discretionary. Its discretion transcends all rights, legal or equitable, and enables the Court to make such order as it thinks fit. This
means, as I understand it, that the Court is entitled to make such order as may be fair and just in all the circumstance of the case. Per Lord Denning, MR @ 1127.
However, that far-reaching principle eloquently profounded by Lord Denning, MR apparently did not go down well with the House of Lords (as the UK Supreme Court then was). Barely 8 years after the Court of Appeal decision in HINE VS. HINE (Supra), that principle was ‘scotched’, so to say, in PETTITT VS. PETTITT (1970) AC 777. Therein, the House of Lords in its wisdom authoritatively declared that principle (inherent in Section 17 of the Married Women’s Property Act, 1882) was merely procedural. And that in every case, the Court has to enquire what are the legal rights of the parties and literally give effect thereto – without exercising any discretion in the matter. As authoritatively held by the House of Lords:
To use the language of coke, this would be to substitute the uncertain and crooked cord of discretion for the golden and straight met-wand of the law.
Per Lord Hodson @ 808.
Most undoubtedly, the foregoing dictum of the House of Lords in PETTITT VS. PETTITT (Supra) is very much in sync with the trite fundamental axiom, that justice cannot and ought not to be administered in vacuo. It must be administered in accordance with the Constitution, the law made pursuant thereto – the rule of law. As once aptly pontificated by the legendary Oputa, JSC:
Under the constitutional provisions guaranteeing the right to Justice, the justice to be administered is not an abstract justice as conceived by the judex but justice according to law. Having seen the imperfections of the strict law as the hand maid of justice, it follows that to have justice with a human face the rule of equity must form part of the entire social experiment.
Per Oputa, JSC in a paper TOWARDS JUSTICE WITH A HUMAN FACE.”
HAMMA AKAWU BARKA, J.C.A.: The opportunity was extended to me reading in draft the judgment of my learned brother Ibrahim Mohammed Musa Saulawa JCA, just delivered.
The reasoning and the conclusions reached therein are agreeable to me. I am of the humble view that marriage being a social contract between two adults, and where they express the need to dissolve such contract, the Court should liberally look at their request and grant same accordingly.
It is in that con that I do agree that the request for the dissolution of the marriage be granted. I abide on all orders made including that as to costs
BALKISU BELLO ALIYU, J.C.A.: I have had the privilege of reading in draft the lead judgment of my learned brother IBRAHIM MOHAMED MUSA SAULAWA, JCA that has just been delivered. His Lordship has adequately and brilliantly dealt with the three issues that arose for determination from the grounds of appeal. I entirely agree with the reasoning and conclusion reached in resolving the issues and I adopt same as mine in allowing this appeal in part. Having regards to the pleadings and the evidence of the parties before the lower Court, I cannot but agree with the lead judgment in resolving issue two in favour of the Appellant. Consequent upon which I also dissolve the marriage between the parties. Issue three is hereby resolved against the Appellant by me and I also award the custody of the children to the Respondent. Parties shall bear their respective cost of action.
Appearances:
Adewale S. Oseni, Esq.For Appellant(s)
Babatunde Olomu, Esq.For Respondent(s)
