PIUS v. OLORUNFEMI (2020)

PIUS v. OLORUNFEMI

(2020)LCN/15205(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Friday, March 13, 2020

CA/C/185/2018

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Between

GABRIEL OLORUNFEMI PIUS APPELANT(S)

And

BOSEDE PIUS OLORUNFEMI RESPONDENT(S)

RATIO

FACTS TO BE PROVED IN A PETITION FOR DISSOLUTION OF MARRIAGE

By virtue of Section 15 (2) of the Matrimonial Causes Act, 1970 a Court hearing a petition to dissolve a marriage shall hold the marriage to have broken down irretrievably only if the petitioner satisfies the Court on one or more of the following facts:-
(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 did not object to a decree being granted;
(f) That the parties to the marriage have lived apart for a continuous period of at least three years immediately preceding the presentation of the petition;

CONDITION FOR A DIVORCE PETITION TO SUCCEED

It is settled that for a divorce petition to succeed the petitioner must plead and prove one of the facts contained in Section 15 (2) (a) – (h) of the Matrimonial Causes Act. If the petitioner for any reason fails to plead and prove any of the facts stated in the law, the petition must be dismissed even if the dissolution is desired by the parties. PER SHUAIBU, J.C.A.

THE PURPOSE OF EVALUATION OF EVIDENCE

In ONWUGBELU V. MEZEBUO & ORS (2013) LPELR 20401, it was held that evaluation of evidence provides or explains the factual basis of reasoning or decision of the Court. Thus, it demonstrates the relationship or connection between the decision and the evidence before the Court. It further helps an understanding of how the Court arrives at its conclusion on the facts and hence an indicator of whether the Trial Court dispassionately considered and gave due regard to every admitted evidence before it. PER SHUAIBU, J.C.A.

MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Akwa Ibom State sitting at Uyo delivered by Bassey Frank Etuk, J. on 22nd of January, 2018.

By a petition filed on 25th day of October, 2016, the appellant as petitioner prayed the lower Court for the following orders:-
(a) A decree of dissolution of the statutory marriage contracted between the petitioner and the respondent on the 19th November, 2009 on the grounds of cessation of cohabitation and denial of conjugal rights.
(b) An order restraining the respondent from parading herself as the petitioner’s wife or holding herself out in a manner which the general public is capable of being deceived to do business with her as petitioner’s wife.
(c) Since the only child of the marriage is a grown up daughter, the issue of custody is left to the discretion of the Court.

The respondent was served through substituted service vide an order to that effect granted on the 19th January 2017. Upon the respondent’s failure to file an answer, the petition was set down for hearing wherein the petitioner testified as pw1. After filing and adoption of final written address, learned trial judge delivered judgment on 22/01/2018 dismissing the petition at page 79 of the record of appeal as follows:-
“There is evidence before the Court that the respondent deserted the matrimonial home in the year 2014. This petition was presented in the year 2016. It was not up to three years …
Unfortunately this petition does not fall within the provision of Section 15 (2) (f) of the Matrimonial Causes Act. In the final analysis this petition fails. It is accordingly dismissed.”

Dissatisfied with above, appellant appealed to this Court through a notice of appeal filed on 2/2/2018 at pages 80 – 87 of the record of appeal. The said notice of appeal contains two grounds of appeal.

Appellant’s distilled two issues as having arisen for the determination of the appeal as follows:-
1. Whether the Lower Court was right when it held that for a marriage to be said to have broken down irretrievably on ground of cessation of cohabitation the parties must have lived apart for a continuous period of not less than three years immediately preceding the filing of the petition.
2. Whether the Lower Court was right in holding that the appellant did not adduce evidence on the cessation of cohabitation during the statutory marriage but only gave evidence of the cessation of cohabitation during the previous customary marriage between the parties which does not concern the Lower Court.

The respondent adopts the two issues formulated by the appellant.

In arguing appellant’s first issue, learned appellant’s counsel contended that the Court in coming to the conclusion whether a marriage has broken down irretrievably is required to take into consideration the occurrence of one or more of the situations set out in Sub-section 15 (2) of the Matrimonial Causes Act. He submits that a party seeking for divorce is at liberty to prove the occurrence of one or more of the situations set out in Sub-section (a) to (h) of Section 15 (2) of the Act and in such a case, the Court has no choice than to grant the petition for divorce, as this implies that, the marriage has broken down irretrievably in law.

Still in argument, learned counsel submits that the law did not say all the three grounds must co-exist as the two years and eight months period immediately preceding the cessation of co-habitation before filing the instant petition suffice. He referred to Section 15 (2) (e) of the Act to contend that if the parties stay apart continuously for a period of at least two years immediately preceding filing of the petition and the respondent did not object, the marriage has therefore broken down irretrievably.

Under the second issue for determination, learned appellant’s counsel referred to paragraph 5 (iii) of the petition and the appellant’s oral evidence in Court to contend that the respondent had deserted her matrimonial home since 2014 and that the statutory marriage was contracted in 2009. He thus submits that the appellant had pleaded and adduced evidence on the circumstances of how there was cessation of co-habitation during the statutory marriage contrary to the findings by the lower Court.

On the evidence adduced in respect of previous cassation of cohabitation prior to their statutory marriage, learned counsel submits that it is only evidence of relevant facts which is admissible in evidence. He referred to Section 7 (a) and (b) of the Evidence Act and the cases of OBASANJO V. SEAVIEW INVESTMENT LTD (1993)9 NWLR (prt 317) 327 at 328, NWABUOKU V. ONWORDI (2006) FWLR (prt 331) 1236 at 1251 and ADENIJI V. ADENIJI (2013) 15 NWLR (prt 1376) 102 at 111.

In agreeing with the appellant, learned respondent’s counsel also submits that on cessation of cohabitation as a ground for the decree of dissolution, Section 15 (2) of the Act creates three different situations, one of such is, where the parties to the marriage have lived 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. That even one of the grounds suffices to prove that there is a cessation of co-habitation which could make the Court to hold that the marriage has broken down irretrievably. He referred to EKREBE V. EKREBE (1999) 3 NWLR (prt. 596) 514 at 517 to the effect that for a divorce to succeed, the petitioner must plead only one of the facts contained in Section 15 (2) (a) – (h) of the Matrimonial Causes Act. He finally urged this Court to hold that the Lower Court was wrong in dismissing 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 ground for presuming that he or she is dead.
In HARRISON V. HARRISON (1989)5 NWLR (prt 119) 6, it was held that the provisions of Section 15 (2) (a) – (h) of the Act do not constitute separate grounds or separate cause of action on the basis of which a dissolution of marriage can be granted. Thus they are various species of the break down. Consequently, a petitioner who satisfies the Court on any one of those facts would be entitled to a finding that the marriage has irretrievably broken down and a decree dissolving it.
In the present case, the learned trial judge found as a fact that the respondent had deserted the matrimonial home in the year 2014 and the petition was presented in the year 2016. He nonetheless dismissed the petition on the ground that the parties to the marriage did not lived apart for a continuous period of three years immediately preceding the presentation of the petition.
It is imperative to note that under the Matrimonial Causes Act 1970, there is only one ground for the dissolution of all marriages, and that is, that “the marriage has broken down irretrievably which provided for under Section 15 (1) of the Act. Therefore, where any one or more of the set of facts under Section 15 (2) has been proved; a party can commence subsequent proceedings for dissolution of marriage relying on another set of those facts.
The appellant in the instant case having predicated his petition on the ground that the marriage has broken down irretrievably and the Lower Court having found that the respondent had deserted the matrimonial home for a continuous period of at least two years immediately preceding the presentation of the petition, and the respondent did not object to decree being granted. It is therefore wrong on the part of the lower Court not to have granted a decree dissolving the marriage. Learned counsel on both sides have submitted rightly in my view that a party seeking for divorce on the ground that the marriage has broken-down irretrievably has the liberty to prove the occurrence of one or more of the scenarios set out in Section 15(2)(a)-(h) of the Act.And once such is done, the Court has no choice but to grant a decree dissolving the marriage. See EZIAKU V. EZIAKU (2018) LPELR – 46373.

On the second issue – that is, whether based on the pleaded facts and evidence adduced, the appellant has failed to establish cessation of cohabitation during the statutory marriage.

I have right from the onset reproduced the reliefs sought by the appellant at the lower Court, the first being a decree dissolving the statutory marriage contracted between him and the respondent on the 19th November, 2009 on the ground of cessation of cohabitation and denial of conjugal rights. I have also restated the legal position that a petition under this Act by a party to a marriage for a decree of dissolution of marriage may be presented to the Court by either party to the marriage upon the ground that the marriage has broken down irretrievably under Section 15 (2) of the Act.
The Court hearing a petition for a decree of dissolution of marriage shall hold that the marriage to have broken down irretrievably if but only if the petitioner satisfied the Court that one or more of the situations set out in Section 15 (2) (a) – (h) of the Act – has occurred. In his pleadings, the appellant as petitioner averred that he first contracted a customary marriage with the respondent in September, 1989 and during the period of customary marriage there were instances of cessation of cohabitation but the cessation of cohabitation which formed the basis of seeking the divorce was the one that took place in March 2014 after the consummation of statutory marriage. In Paragraphs (iii) and (iv) at page 4 of the record of appeal, it was averred as follows:-
“(iii) When the respondent came back in 2008 after the second cessation of cohabitation the petitioner took her to Abak from his office at Julius Berger Plc, Uyo to contract a statutory marriage with the respondent on 19th November, 2009, thinking that could make the respondent to be more serious with the relationship. Yet there was a cessation of cohabitation for the third time between the petitioner and the respondent in or about March 2014 that the respondent deserted the matrimonial home she has not return till date.
(iv) This incessant cessation of cohabitation by the respondent has crossly denied the petitioner his conjugal right.”

Learned trial judge was right when he held the view that whatever that transpired between the parties prior to the statutory marriage same cannot ground a dissolution of marriage under Section 15 (1) of the Act. He went further to conclude at page 78 of the record of appeal that-
“Before this Court, the petitioner had not been able to show what happened between the years 2009 and 2014. Rather the petitioner is referring to acts that took place between (sic) the about 18 and 20 years before the two of them contracted statutory marriage in the year 2009.”

Did the learned trial judge evaluate the evidence adduced by the petitioner in this case before arriving at the above conclusion? Evaluation of evidence entails the consideration of every evidence on an issue. And in considering such evidence the Court has a duty to consider the relation between the evidence and the issue as well as the probative value of such evidence. This will involve a thorough appraisal, analysis and assessment of the evidence that will logically results in a conclusion of law or an inference of fact. See AWUSE V. ODILI (2005) 16 NWLR (prt 952) 416 at 506.

I have reproduced the pertinent averments of the appellant at the Lower Court and in his quest to prove that assertion, he stated in paragraph 6 of the witness deposition at page 46 of the record of appeal as follows:-
6. That there was a cessation of cohabitation between the respondent and I in or about July 1992. The respondent dropped a note in the house stating that my family may think she was the cause of my not having a good job; so she had to quit the marriage. I came back to see the note. Later in 1994 elders of the respondent’s family intervened and begged me. I forgave her and accepted her back into the matrimonial home. There was a cessation of cohabitation between the petitioner and the respondent a second time in or about March 1997. In January 1997, I went to Bony Island in Rivers State working for Julius Berger, but still maintaining his home in Lagos. The respondent parked both her things and my things away. I came back to see almost an empty house in April 1997. In 1999, I relocated to Port Harcourt where he lived to work for Julius Berger Plc. At Bony Island, Rivers State. In October 2010, I was transferred by Julius Berger Plc. to Uyo. There was a cessation of cohabitation for the 3rd time between the respondent and I. The date and the circumstances in which cohabitation between the petitioner and the respondent last ceased are that in or about March 2014 as usual without any cogent reason, I came back from work to the house to realize that the respondent has vacated the matrimonial home for the third time. Since March 2014, the cessation of cohabitation subsists till date.
Also when led in evidence, the petitioner (now appellant) at page 70 lines 11 – 19 of the record of appeal said:-
“PW1:- I testified last on 3/8/2017. I told the Court that myself and respondent contracted statutory marriage at Abak marriage Registry.”
This is the certified true copy of our marriage certificate.
Counsel: – I seek to tender it as an exhibit in this case.
Court: – The certified True Copy of the marriage certificate is tendered, admitted and marked Exhibit A.
“After our marriage, we went to our matrimonial home in Port Harcourt, Rivers State. From there, the respondent deserted the matrimonial home without any reason.”

On the strength of the evidence adduced by the petitioner (now appellant), the lower Court was clearly in error when it held that the appellant did not give evidence on the cessation of cohabitation of the statutory marriage. Looking at the learned trial judge’s evaluation of the entire evidence before him and the reasons given before making his findings, I am satisfied that he has failed to put the totality of the evidence adduced on the imaginary scale before arriving at his conclusion. There is therefore no relationship or connection between the decision and the evidence adduced before the lower Court.

In the result, all the two issues are resolved in favour of the appellant. The appeal is meritorious and it is accordingly allowed. Parties shall however bear their respective costs.

MOJEED ADEKUNLE OWOADE, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother M.L. SHUAIBU, JCA.

I agree with the reasoning and conclusion and I also agree that the appeal is meritorious and should be allowed.
I abide with the order as to costs.

YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading in advance the judgment just delivered by my learned brother, MUHAMMED LAWAL SHUABI, JCA and I am in complete agreement with the resolution of the issues presented for determination.

I therefore have nothing more to add but to also adopt all the orders made in the lead judgment.

Appearances:

Etietop, Esq. For Appellant(s)

Nsima Akang, Esq. For Respondent(s)