Ahmad Moktar Jabre V. Mrs Dorra Jabre (1999)

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VICTOR AIMEPOMO OYELEYE OMAGE, J.C.A.

The Respondent to this appeal filed an application in the Court below against the Appellant under the Matrimonial Causes Ace, 1970 Caps 220 Laws of the Federation of Nigeria. Sections 16(1)(70), 70(2), 72(1) & (2) 73(1) a-h and under order XIV rules 7(1), 8(1) (b) of the said law and sought the followings:

“(1) An order for the payment of maintenance fee from the 13th day of December, 1996 by the Respondent to the petitioner pending the final determination of this petition.

(2) An order directing the Respondent to pay maintenance fee “embloc” see, from the 13th day of December, 1996 to 31st day of July, 1997 and thereafter on a monthly basis from August 1997 pending the disposal of this petition.

(3) An order, mandating the Respondent to pay maintenance fee directly to the petitioner.

(4) An order directing the Respondent to provide security for the payment (sic) (of) the maintenance pending the disposal of this (sic) petition.

(5) An order of interlocutory injunction restraining the Respondent, his agents, servants, privies by whatever names called from selling or parting with the property known and lying and situate at No.172 Mission Road Kano until final determination of this petition. And such further orders or any other order that the Justice of the court might demand.

The application was supported by an affidavit. The learned trial court considered exhibit AA” attached to the further and better affidavit of the Respondent, which is a declaration of marriage dated 26th January, 1995. It states as follows:

“In the magistrate Court of Kano State holden at Kano. Declaration of Marriage, I Ahmad Moktar Jabre, Male Muslim, Canadian Passport No.WA296551 and Lebanese Passport No.505228 of Mission Road Kano do make the following declarations:

1. That I have married former Miss Dorna Mohammed Kodiath,
2. That she was separated and divorced from her husband Chafie A1 Mokaddem
3. That our marriage was celebrated on 26th day of January, 1995 at Kano Municipal Registry.
4. That a copy of the said Dorna Mohammed Kodiath declaration of marriage to me is attached and marked exhibit B.
5. That a copy of the marriage certificate is attached marked exhibit C.

Upon the above the trial court ruled as follows: Although I will not dream of considering the merits of the petition at the moment, nevertheless the applicant has asked for some interim reliefs before the hearing and determination of this court which I have to consider. One of the issues for consideration as well considered in KOTOYE V CBN 1989 Supra is whether there is a prima facie case in line with the prayers which are asked for.

From the above quoted declaration of marriage sworn by the Respondent and the writ of petition taken only by the petitioner I am satisfied the procedure for the grant of the application as set out in KOTOYE V CBN 1989 Supra have been complied with. Lastly I have gone through the counter affidavit of the Respondent coupled with his submission of the learned counsel, Mr Abe and they are rendered nugatory by the above quoted exhibit supra.” The submission of the learned counsel for the Respondent at the affidavit quoted in the ruling is as follows:

1. That it is premature to grant the application at this stage as his reliefs are substantive.
2. The presumption of a valid marriage is questionable.
3. The person sought to be restrained by prayer is not the Respondent himself but a company which has not been joined as a party.
4. That upon the authority of KOTOYE V CBN Supra this court cannot consider the merit of this case at this stage”.

As stated above the trial court granted all the prayers sought as prayed. Hearing in the petition for an order for maintenance, restitution of conjugal rights and specific performance against the Respondent/Appellant had not commenced. Being dissatisfied with the ruling of the court below the Respondent/Appellant has now appealed to this court. Prior to this, appellant filed in this court an application for extension of time which was allowed, and thereafter filed notice of appeal of six grounds. In accordance with the rules of this court appellant formulated five issues for determination as follows:

1. whether the learned trial Judge was right in applying the principles of law enunciated in case of KOTOYE V CBN Supra 1989 2 NWLR Pt 98 419 to the instant case when the facts and circumstances of the two cases are different.
2. whether the findings and conclusion made by the learned trial Judge in his interlocutory ruling did not amount to decisions on substantive issues.
3. whether the learned trial Judge did not act perversely and in error when he exercised his discretion in favour of the Respondent by granting all the reliefs sought by the Respondent in the application.
4. whether it was proper for the learned trial Judge to reach a decision on the interlocutory application without calling oral evidence to resolve the irreconcilable conflicts in the affidavit of the parties.
5. whether the learned trial Judge properly evaluated the copious affidavit evidence of the parties before reaching a decision.

The learned counsel for the appellant in his brief has submitted on the issues for determination which covers four of the five grounds of appeal in this case, by saying when the various affidavits and counter affidavits are placed together, the issues to be determined are:

i. whether or not there was an existing marriage between the parties in the peculiar circumstance of this case.

ii. whether it is proper for the court to order maintenance of the petitioner at this stage of the trial and the circumstance of the case.

iii. whether or not the court can make an order of injunction against a person who has not been made a party to the suit.

I am also of the view that the salient issues to be determined in this appeal are as formulated by the Appellant in his brief on issues 1-4. Issues 1-4 can be congealed into the above three issues and I now proceed to consider the issues as follows. On issue one, when considering the uncertain nature of the marriage between the Respondent and the Appellant as described in the affidavit reproduced by the trial Judge in his ruling, the validity of the marriage from which the claim at the interlocutory stage id est the maintenance order derived; should be foremost. The issue as to whether the marriage between the parties falls within the definition of a valid marriage under the Matrimonial Causes Act 1970 Cap 220 is one for the trial. ‘Under the said Act, Section 69 part IV on maintenance custody and settlements subscribe as follows:

“Marriage includes a functional marriage that is void, but does not include one entered into according to Muslim rites or other customary law.”

In the marriage described in the affidavit, with photocopies of annexures A, B and C on which the lower court relied on a prima facie evidence to make an order for maintenance of the Respondent it is ex facie uncertain whether it is a marriage by declaration in the affidavit, and further proof should have been required as to the validity of the marriage before an order can be made on it conferring right of maintenance on the Respondent. It is my view that this cannot and should not have been made at the interlocutory stage.

In Section 3(1) of the said Act Cap 220 the following provision as to the validity of a purported marriage is made, viz subject to the provision of this Section, a marriage that takes place after the commencement of this Act is void in any of the following cases (which is appropriate here).

“(a) either of the parties is at the time of the marriage lawfully married to some other person, but not otherwise if it so occurred.”

Clearly as the date of the first marriage alleged has not been stated; and as the counter-affidavit of the Appellant has averred a subsisting prior marriage to the Appellant, a reasonable court seeking to do justice will be put on notice of issues that need to be resolved before concluding on prima facie evidence; and make a final order at an interlocutory stage.

The lower court in this case was in error to have failed to consider the above, because the issues as to the validity of the marriage cannot be determined at an interlocutory stage. Therefore the right of maintenance granted to Respondent on 11/12/97 as, contained in the order of the trial court has not matured.

This is so because at the ‘time of’ the hearing of the interlocutory application, the main reliefs sought by the Respondent in his petition for maintenance etc have not been heard and determined by the court.

The main reliefs sought by Respondent as contained in the Appellant’s brief are as follows:

(1) An order for maintenance of the Respondent from 13th day of December, 1996 to 31st July, 1997 and thereon. An order for restitution of conjugal right and for specific performance, the reliefs above stated are made under the provision of the Matrimonial Causes Act 1970 and are still pending, because no evidence has been adduced in court. However the application for an interlocutory order which was granted by the lower court was made under the provisions of Section 16(1)(f) of the Matrimonial Causes Act which reads as follows:

“Without prejudice to the generality section 15(2) of this Act, the court hearing a petition for a decree of dissolution of marriage, shall hold that the petitioner has satisfied the court of the facts mentioned in this said Section 15 2(c) applicable to this Act, if the petitioner satisfies the court (applicable) here, (f) that the Respondent has habitually and wilfully failed throughout the period of two years preceding the date of the petition to pay maintenance to the petitioner.” (underlining supplied for emphasis).

The requirement of section 16(1) of the Acts are that there should be (1)a hearing and (2) in a case for a dissolution of marriage. It does not apply to a party who seeks relief for a restoration of conjugal right or specific performance as provided for in Section 47 Matrimonial Causes Act 1970. Section 47 Supra is without doubt subscribed in the law for a reconciliation of the parties to the marriage, where they are enstranged. The issue of an order for maintenance of the spouse at an interlocutory stage cannot be said to assist the intention of the law (Sec.47) for a restoration of conjugal right as the application stood before the court. Infact Section 51 of the said Act on the same issue provides as follows:

“A decree of restitution of conjugal rights shall not be enforceable by attachment.”

The section in my view seeks to avoid any action that may deter restoration of conjugal right. An order for maintenance before the hearing of evidence will not encourage amity between the spouses.

The section under which the lower court purports to have acted, that is Section 16(f) of the Matrimonial Causes Act is supplemental to section 15(2) of the said Act, both sections deal with a case for a dissolution of marriage not for restitution of conjugal right or for specific performance. In making an order for maintenance of the Respondent at an interlocutory stage in a section which provides for an order to be made on a dissolution of marriage, the learned trial court exceeded the provisions of the law under which he purported to have acted. It is settled that a court of law should observe in specific terms the provisions of the law under which he issues an order and should give the statute the meaning which reflects the intention of the makers of the law. See K. KUUSU V VANGER NDOM (1990) 1 NWLR Part 127 441 & 442, Paras. A-B, per Nnamanni JSC.

See also UDDOH V OHMB (1990) 4 NWLR (Part 142)52 where it was held that where the language of a statute in its ordinary meaning and grammatical interpretation leads to a manifest contradiction of the apparent purpose of the enactment or to some inconvenience or absurdity which can hardly have been intended a construction may be put on it which modifies the meaning of the words and even the structure of the sentence. This may be done by giving an unusual meaning to particular words on the ground that the legislature could not possibly have intended the purpose for which the words are used. See also page 68 part J – E UDDOH V OHMB supra. This being an interlocutory appeal, one is aware that any observation made here may prejudge the issues in the judgment. See – OJUKWU V GOVERNOR OF LAGOS STATE (1986) 3 NWLR Pt.26 and EGBE V ONOGUN (1972) 1 NWLR Pt 95 at 98. However, one writes only in order to put in clear identification of the main issues that ought to be addressed in the circumstances of this appeal as in the cases of BANKOLE V PELU (1991) 8 NWLR Pt 211(ii) ADEDIRAN V INTERLAND TRANSPORT LTD (1991) 9 NWLR Pt 214, 155 and (iii) ONWO V OKO (1996) 6 NWLR (Pt.456)584 para.F-G. The purpose being to insist on the meaning of the statute in issue. It is in order therefore to show that where the proof of a prima facie evidence is inadequate the proper course is not to make an interlocutory order. The Supreme Court has directed in such a Case the course of action to pursue; when the court held in OBEYA MEMORIAL HOSPITAL V ATTORNEY GENERAL OF FEDERATION (1987) 3 NWLR(Part 60) as follows “The court when considering the application for interlocutory injunction should not try to resolve conflicting evidence on affidavit on facts on which the claim of either party may ultimately depend or decide difficult question of law which call for detailed argument and mature consideration.”

Therefore in this case because of the conclusive nature or the existence of marriage which is a cardinal issue to be established at the hearing of the relief sought for an order for a restoration of conjugal right in the main suit, it is uncertain and the Matrimonial Causes Act 1970 does not so provide that an order for maintenance of spouse shall be made at an interlocutory stage of the hearing of an application for restoration of conjugal right. Such an order will prejudge and conclude on the existence of a valid marriage before the hearing. The implication of this therefore is (i) proof of the marriage, (ii) proof of the rights of the petitioner to the relief sought are necessary pre-condition to the award of the relief sought. In my view, the relevant facts therefore are not one to be established by a prima facie facts evidence as in KOTOYE V CBN (1989) 1 NWLR (Pt. 98)419. Even these have to be proved.

The emphasis on the proof of the facts complained of is as contained in section 15(2) to which section 16(1) of the Matrimonial Causes Act is supplemental. Section 16(1) provides that at the hearing, the facts complained of shall lead the court to hold “if and only if” as underlined above the facts are proved.

It is our law that he who asserts must prove. See Evidence Act Sec. 138 and the court can only be satisfied of a fact upon proof. By failing the required proof of:

(1) the existence of the marriage

(ii) of the complaints made in the affidavits, and in granting the order sought on a prima facie documentary evidence per so, the learned trial Judge seem to have taken the view that the pendency in a high court of the petition for an order for restoration of marriage which has not been heard and determined against the Appellant is conclusive of the complaint made therein. This of course is not so.

In AKAPO V HAKEEM-HABEEB (1992) 6 NWLR (p.247)266 Nnaameka Agu, JSC at page 303 par.A, observed thus “The pendency of a suit which has not been determined is relevant to the issue of an interlocutory injunction but it is not sufficient therefrom to affix liability, to have done so was to prejudge the issues in litigation in the case. The above observation becomes relevant when in an interlocutory application for an order for maintenance the court below made an order for payment of maintenance “en bloc” from December 1996 to 31st July, 1997 against the Appellant, when hearing in the main claim is yet to be heard.

On issue two the order made in the interlocutory proceeding, under Section 16 (1)(f) when viewed from the purpose intended in the main relief sought in the petition is in contrast to the provision of the law for restoration of the state of marriages between the spouses. A penalty of one side and that is what an order for maintenance of a spouse is when the state of marriage has not been proved, does not encourage reconciliation, and does not preserve the res. before the hearing of the petition. What is an interlocutory injunction? It is an order made to restrain one party to the proceedings. The object of an interlocutory order is to preserve matters pending the trial of matters in dispute. Such an order must not assume to finally dispose of the rights of the parties. See ITA V NYONG (1994) 1 NWLR Part (318)56 P.66 – 67 par. A – B. Since the intention for granting an interlocutory injunction is to keep the rights of the parties afloat, it is not necessary, generally to prove the claim to the hilt See AKIBU V ADUNTAN (1991) 2 NWLR Pt 171, therefore a prima facie evidence is admissible in consideration of the application which does not need real proof before an order can be made. See KOTOYE V CBN (1989) 1 NWLR (Pt.98) 419. It must be shown that there is a legal right to protect. This is the proof of the marriage. The need to protect the right of one party must be weighed against the corresponding need to protect the right of the other party, See GEORGE ITA V NYONG 1994 Supra.

In the order of the lower court against which the appeal is made, the court below did not consider the competing rights of the parties in the application. What is more, the court is in error when it granted the relief for maintenance in a dissolution of marriage in a suit which seeks restoration of conjugal right and an order for specific performance.

I am of the view and I so hold that the standard of proof required in the consideration of such an application (if it may be said to apply in the relief sought) which the law does not provide is the standard provided in Section 15(2) of the Act Supra and enforced in Section 82(1) of the Matrimonial Causes Act 1970 which is proof upon the establishment of the fact to the reasonable satisfaction of the court. This excludes a prima facie proof and requires reasonable satisfaction upon evidence adduced in court. In the event it is not right for the learned trial Judge to apply the principles as in KOTOYE V CBN Supra which requires only a prima facie proof of the fact before an injunction is allowed. To employ a prima facie proof to a case for an interlocutory order for maintenance under the Matrimonial Causes Act 1970 where the facts and circumstances and the standard of proof required are different is to conclude the case at that stage. Consequently the finding and conclusion made by the learned trial Judge in his interlocutory ruling made on 11/12/97 is wrong in view. I hold that the learned trial Judge did not have the power to make such an order under the Matrimonial Causes Act 1970, since to do so as he did amounted to concluding the case in anticipation of evidence. In any case the right to make the order made by the court exists only under the law, in a prayer for a dissolution of a marriage.

On issues three and four, the exercise of discretion by a court of law should not exceed the provision of the law. In this case the right of the court to make an order for maintenance under Section 16(1) of the Matrimonial Causes Act 1970 is provided for in a Case of dissolution of marriage, and not for an order for restitution of conjugal right or for specific performance under section 47 and 52 of the Act respectively. Unless the court has doubts about the sincerity of the petitioner before the hearing of evidence when he shall not make a decree of restitution of conjugal right under section 49 of the Act. In my view, it is perverse and unjust to make an order for maintenance which confer right on one party to the detriment of the other who has not been heard on the issues. See NBN V GUTHRIE NIGERIA LTD (1993) 3 NWLR Pt 284 at 657. It is therefore a right case for this court to intervene and set aside the order of the lower court. I hereby so order on issues 1 – 4. See ODUTOLA V KAYODE (1994) 2 NWLR Pt324 p.1. Issues No 5 formulated by the Appellant for determination in the Appellant’s brief touch on the issue of fair hearing. In the ruling of 11/12/97, the learned trial Judge referred to the counter-affidavit of the Appellant in the court before him which averred that the party was not in court upon whom an interlocutory order is sought to be made on the issue of an injunction to restrain the sale of the house at No.172 Mission Road Kano. On this issue the court below after considering the submission of Appellant’s counsel and the averments in the counter affidavit said -they are rendered nugatory.” It is settled law that where affidavits and counter affidavit presented by parties in court contain conflicting averments, it is proper to take a viva voce evidence in order to be better able to evaluate the affidavit evidence and arrive at a reasonable conclusion. See AKINDURO V IWAKUN, 1994 3 NWLR (Pt.330)106and because the learned trial Judge rendered the averment contained in the counter-affidavit nugatory, he failed to see and appreciate the constitutional issue of the denial of a right of fair hearing to the person absent from court, who is not a party to the proceedings and who the counter affidavit averred to be the owner of the house at No 172 Mission Road Kano. It is an infraction of the provision of Section 33(1) of 1979 Constitution of Nigeria, and of the common law right of fair hearing to make an order of court on a person who is not a party to the proceedings in court. A right to be heard, in a case before a tribunal can make an order on him is one which all Nigerians have. Where this cardinal principle of our law is not obeyed, the proceedings and order made against such a person is a nullity. See DENLOYE V MEDICAL DISCIPLINARY COMMITTEE reported in cases and materials on constitutional law in Nigeria 1979 at page 99. In the said case the Supreme Court per ADEMOLA CJN set aside the order of the medical and Dental Board who had found Dr Denloye guilty and ordered the removal of his name from the Register of Dentists before the said Dr was called to testify in his own defence.

The then learned C.J.N. ruled that the hearing of evidence by the medical Board against the doctor in his absence constituted a denial of justice to the Appellant.

When therefore in this case, the trial court proceeded to make an interlocutory order after receiving averment in the counter affidavit that the house at No.172 Mission Road did not belong to the party before the court and that the house belonged to another who was not cited as a party in the suit such an order is a denial of justice to the rightful owner and as he was said not to be in court the said order which purports to restrain the sale of the house is a nullity.

In that event, I hereby set aside the order of the Kano High Court by Justice N.S. Umar.

In the result, this appeal is allowed and the ruling of the trial court delivered on 11/12/97 is hereby set aside. The case is remitted to the High Court of Justice, Kano for hearing before another Judge other than Umar J. The Appellant is entitled to costs which I assess at N1,500.00.

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Other Citations: (1999)LCN/0622(CA)