Jacob Ndubuisi Okaome V. Mrs. Comfort Oluchi Okaome & Anor (2016)
LawGlobal-Hub Lead Judgment Report
UZO I. NDUKWE-ANYANWU, J.C.A.
This is an appeal against the judgment of the High Court of Lagos State delivered on the 16th day of July, 2010 by Hon. Justice A. O. Williams.
The Appellant in this appeal who was the Petitioner at the trial Court by his petition dated 9th May, 2003 sought for a decree for the dissolution of the marriage solemnized on 14th November, 1992 at the Redeemed Evangelical Mission [TREM], Festac Town, Lagos between him and the 1st Respondent who was the Respondent and Cross-petitioner on the following grounds contained in Paragraph 9 of the petition which states:-
“The facts relied on by the Petitioner as constituting the ground specified above are follows:
That the said marriage has broken down irretrievably in that since the marriage, the Respondent has behaved in such a way that the Petitioner cannot be expected to live with the Respondent.
Particulars
a) The Respondent was always disobedient to the Petitioner claiming that as the one officially allocated their place of residence by her employers that she can do whatever she wants.
b) The
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Respondent was always quarrelsome and hot tempered with no regard whatsoever for the Petitioner.
c) The Respondent leaves the matrimonial home to unknown destinations and stays away most times for between four (4) days to one week without any explanation or apology.
d) The Respondent refused the love advances of the Petitioner and lacks any concern over the emotional and sexual needs of the Petitioner which she turns down all the time.
e) The Respondent has threatened to eliminate the Petitioner and does not stay in harmony with members of the Petitioner’s family.”
In her reaction to the petition, the 1st Respondent in her amended answer and cross-petition dated 19th October, 2004 in which one Mrs. Fidelia Ejiuwameonu Okoro (Nee Okocha) (2nd Respondent in this appeal) was cited as a Co-Respondent, the following reliefs were claimed:-
?(a) An order dismissing the Petition for a decree of dissolution of marriage filed by the Petitioner, with costs.
(b) A decree of dissolution of the parties’ marriage against the Petitioner on the ground that the marriage has broken down irretrievably because since the marriage, the
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Petitioner has committed adultery with the party-cited, and has deserted the Respondent without any care or maintenance which the Respondent finds intolerable.
(c) An order condemning the party-cited, in the sum of N500,000.00 (Five Hundred Thousand Naira) as Damages in respect of the continuous adultery committed by her with the Petitioner. The Petitioner and the Respondent/Cross Petitioner were happily married until the party-cited came between them.
(d) A rent allowance of N150,000,00 (One Hundred and Fifty Thousand Naira) per annum for the Respondent/Cross Petitioner.
(e) A maintenance allowance for the Respondent/Cross Petitioner of N20,000.00 (Twenty Thousand Naira) per month.
Such further and/or other order(s) as the Court may consider appropriate and just to make in the circumstances of this case.”
After the petition, answer and cross-petition, replies and defence to the cross-petition and rejoinder have been filed and exchanged between the parties, the case proceeded to trial. At the trial the Appellant and one other witness (PW2) testified in support of the petition. The 1st Respondent on the other hand testified in
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support of her case and called one witness (DW2). The 2nd Respondent also testified for herself and in addition called one witness (PCW2).
At the end of the hearing, the learned trial judge dismissed the Appellant’s petition and granted the 1st Respondent’s cross-petition, and awarded the sum of N200,000.00 as damages against the 2nd Respondent. It equally awarded a monthly maintenance cost in the sum of N20,000.00 against the Appellant. Dissatisfied with the judgment, the petitioner filed a notice of appeal on 6th October, 2010 consisting of six (6) grounds of appeal. See pages 305 – 308 of the Record of Appeal.
The appeal was heard on the following briefs:
1. The Appellant’s brief filed on the 7th February, 2011 deemed properly filed on the 29th February, 2016
2. The 1st Respondent’s brief filed on 18th September, 2015
3. Appellant’s reply brief filed on 25th January 2016
4. No brief was filed by the 2nd Respondent.
The Appellant in his brief formulated 4 issues for determination.
They are as follows:
?1. Issue No.1 Whether from the evidence on record and evidence from the 1st Respondent and DW2, it was proved
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that the Appellant has taken the 2nd Respondent as a second wife. See Ground 1.
2. Issue No. 2 Whether from the totality of the evidence on record, it was established that the Appellant and the 2nd Respondent committed adultery, See Ground.
3. Issue No.3 Whether on the totality of evidence led, the 2nd Respondent made out a case to entitle her to maintenance in the sum ordered by the trial judge or in any sum at all. See Grounds 3 and 4,
4. Issue No. 4 Whether the learned trial judge properly evaluated the evidence led at the trial as to arrive at the conclusion that the Appellant is not impoverished and can well afford to maintain the 1st Respondent. See Grounds 5 and 6.
The 1st respondent on the other hand formulated 2 issues for determination. They are:
?1. Whether from the totality of the evidence before the trial Court and evidence on record, it was established that the Appellant committed adultery continuously with the 2nd Respondent which led the Appellant to desert the 1st Respondent without any care or maintenance.
2. Whether the learned trial judge properly evaluated the evidence before the Court in holding that
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the 1st Respondent is entitled to maintenance and whether the learned trial judge was right in law in making such order.”
From the issues formulated by both parties, it is clear that some of the issues are similar and can be dealt with together. For instance:
1. The Appellant’s issue 1 and 2 is the same as the Respondent issue 1
2. The Appellant’s issue 3 and 4 is the same as the Respondent issue 2.
The issues shall be discussed as harmonized above.
ISSUE 1.
It is the contention of learned counsel for the Appellant that the allegation of marriage between the Appellant and the 2nd Respondent was not satisfactorily proved before the Lower Court. He submitted that there are two types of marriage recognized in Nigeria i.e. Customary and Statutory marriage. In order to prove that a valid customary marriage was contracted evidence must first be led as to the customary law of marriage of the locality concerned and the essentials of such marriage. The best evidence being that of an eye witness account of the transaction. He relied on Adeyemi v. Bamidele (1968) 1 All NLR 31; Adepeju v. Adereti (1961) WNLR 154; Shashie v. Salako
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(1976) 1 NMLR 160; Lawal v. Younan (1959) WNLR 155.
While statutory marriage can only be established upon the production of certificate of marriage. In this case, counsel contended that the only marriage proved throughout the proceedings was the marriage between the Appellant and the 1st Respondent. He referred to Exhibit P1 (the Marriage Certificate). He further contended that the evidence of DW1 and DW2 to the effect that the Appellant informed them that the 2nd Respondent is his new wife is insufficient to prove the existence of any marriage between the Appellant and the 2nd Respondent either under Customary law or Statutory law. Hence the 1st Respondent has failed to discharge the burden placed on her to prove that the Appellant had married the 2nd Respondent. He referred to Nwaga v. Regd. Trustees, Recreation Club (2004) FWLR (Pt.190) 1360. Furthermore the evidence of the DW1 and DW2 as to the marriage between the Appellant and the 2nd Respondent is contradictory and therefore unreliable. He relied on the case of Akanni v. Odejide (2004) All FWLR (Pt 218) Pg 827.
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He also contended that even if the 1st Respondent had successfully discharged the
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burden placed on her, the evidence of the Appellant PW2, PCW1 and PCW2 outweighs that of the 1st Respondent if put on the proverbial scale. He thus urged this Court to rule in the Appellant’s favour.
On issue 2, Counsel for the Appellant submitted that the 1st Respondent has failed to establish adultery between the Appellant and the 2nd Respondent as required under Section 82 or 85 of the Matrimonial Causes Act. It is the contention of counsel that there is no evidence in support of the claim of adultery as expounded in the case of Alabi v. Alabi (2008) All FWLR (Pt 418) 245 such as proof of any compromising position between the Appellant and the 2nd Respondent or co-habitation. He also contended that the decision of the trial Court that the Appellant committed adultery with the 2nd Respondent was based solely on the finding that the Appellant had taken the 2nd Respondent as a 2nd wife, so if this Court was to find otherwise, then the allegation of adultery will also abate.
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On the other hand learned counsel for the Respondent submitted that the main issue before the Lower Court was the issue whether the Appellant committed adultery with the 2nd
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Respondent and not the issue of whether the Appellant had contracted a 2nd marriage with the 2nd Respondent as canvassed by counsel for the Appellant. He contended that issue of marriage was only incidental to the allegation of adultery. He further contended that there is sufficient evidence before the Court in support of the allegation of adultery against the Appellant which include the evidence of the Appellant’s oral admission to DW1 and DW2, which was not challenged. He referred to Paragraphs 16 – 21 of the 1st Respondent’s Answer to Petition/Cross petition.
He further contended that the trial judge finding on adultery was not based on the existence of marriage between the Appellant and the 2nd Respondent but on the circumstantial evidence before the Court. Referring to the case of Lawal v. Younan (Supra) counsel contended that the case is not binding or applicable to this Court. Firstly because it was delivered by an inferior Court /Lower Court. He referred to the case of OGUNSOLA v. NICON (2010) 5-7 (Pt III) 186.
Secondly, because while that case dealt on the issue of the standard of proof required for proof of customary marriage, the
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issue before the Lower Court was whether adultery was established against the Appellant.
On the issue of burden of proof, counsel submitted that the burden of proving the existence of marriage lies on the Appellant as it was the Appellant that alleged the existence of the marriage.
On the issue of contradictory evidence, counsel contended that the contradiction alleged by the Appellant is not material and therefore cannot affect the merit of the case. He relied on the case of Ayo Gabriel v, The State (1989) 5 NWLR (Pt 122) Pg 457; Enahoro v. Queen (1965) 1 All NLR 125.
In his reply, learned counsel for the Appellant submitted that the alleged pregnancy of the 2nd Respondent was never pleaded by the 1st Respondent in his pleadings, thus evidence led on such fact is inadmissible. He relied on the case of West Construction Co. Ltd v. Batalha (2006) All FWLR (Pt.315) Pg 1.
The Appellant alleged that there was no marriage between him and the 2nd Respondent in any way. The Appellant also alleged that the 1st Respondent couldn’t prove that both the Appellant and the 2nd Respondent were co-habiting.
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I must quickly say that the 1st
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Respondent did not set out to prove any form of marriage between the Appellant and the party cited. The 1st Respondent set out to prove that, the Appellant committed adultery with the 2nd Respondent. The evidence of DW1 and DW2 to the effect that Appellant informed them that the 2nd Respondent is his new wife is not in dispute. This information is merely to prove that there was an adulterous union between the two.
The Courts have found that Adultery is a very private act done by two consenting adults. Thus it is almost impossible to have direct proof of adultery. As a result the Courts have to rely on direct or circumstantial evidence. This evidence includes
(a) evidence of disposition and opportunity;
(b) general cohabitation;
(c) confession and admission of adultery;
(d) entry in a register of birth;
?(e) blood test;
(f) birth of child after the gestation period;
(g) frequent visits to brothels;
(h) infection by veneral diseases and
(i) conviction for rape.
Alabi v. Alabi (2007) 9 NWLR Pt.1039 page 297, Erhanon v. Erhanon (1997) 6 NWLR Pt.510 page 667.
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The 2nd Respondent agreed that she knew the
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Appellant when they were attending classes for ICAN. She also stated herself that the Appellant came to her office to buy gas cylinder. Also it was discovered that the 2nd Respondent had filed a divorce petition against her husband. DW1 and DW2 testified that the Appellant told them that the 2nd Respondent was now his wife.
The trial judge inferred adultery from all these pieces of information. Once there is evidence of undue familiarity, suspicious circumstances, and improper behavior, the Court is entitled, upon a consideration of each particular case, to find as a fair inference that such behavior leads as a necessary conclusion to adultery. There is, indeed, a strong prima facie evidence of adultery if there is clear evidence of familiarity coupled with evidence of opportunity.
Anoka v. Anoka (1973) ECSLR Vol.3 Pt.1 page 51.
The trial judge was right in inferring adultery.
“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
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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 lease 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
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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,
Ibrahim v. Ibrahim (2007) 1 NWLR (Pt.1015) 383, Ash v. Ash (1972), WLR 347, Shokunbi v. Shokunbi (1976) Suit No.JK/28WD/73, High Court of Lagos State, Lagos Judicial Division.”
The trial judge was therefore right in dissolving the marriage by the cross-petitioner’s petition. The cross-petitioner, 1st Respondent proved her cross-petition as against that filed by the Appellant. The trial Court found that the Appellant deserted the 1st Respondent.
I am in total agreement with that finding and resolve this issue against the Appellant.
Issue 3 and 4
Learned counsel for the Appellant submitted that by the provision of S.70 Matrimonial Causes Act, the following factors must be considered by the Court before awarding maintenance to a party in a marriage. They include:-
1. Means and earning capacity of the
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parties
2. Conduct of the parties
3. All other relevant circumstance.
On means and earning capacity, counsel contended that it is improper for the Court to make an order of maintenance in favour of a party in a matrimonial proceeding that has better means than the other. In the instant case, counsel contended that the evidence before the Court shows that the 1st Respondent has better earning capacity as she is a Grade level 7 officer, working and earning income in a Federal Government establishment with promotional and retirement entitlement and has a property at 21 road M close block 1 flat 4, Festac town which brings her rental income; shares at Ashaka Cement Company; a Honda car and several household electrical and electronics equipment. While the Appellant who is ordered to pay maintenance is unemployed; owing 3 years rent to his landlord; a student at the University of Lagos and has only a bungalow family house in his village in Abia State and a Mercedes Benz which he bought in the year 2000 earlier than the Honda car.
On conduct of parties, Counsel submitted that the ground relied (fault ground) upon by the trial Judge is not
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supported by law either in Nigerian or in England. He relied on Wachetel v. Wachtel (1973) FAM 72 and the book Family Law in Nigeria by Professor E. I. Nwogugu page 245.
On all other relevant consideration, Counsel relied on the Property, income and financial commitment of both parties on the one hand and capability to earn income by both parties on the other. He contended that from the facts and evidence before the Court the above two consideration weigh heavily against the award of maintenance. Relying on the case of Chukwu v. Omeaku (2009) All FWLR (Pt.499) Pg.697 & Fagbenro v. Arobadi (2006) All FWLR (Pt.310) 1575, Counsel urged this Court to reverse the award of maintenance as same is perverse.
On the other hand, learned counsel for the 1st Respondent submitted that in the midst of the Appellant’s failure to establish wrong evaluation of evidence, the Court is urged to discountenance same.
On the issue of maintenance, he contended that under the Common law it is the right of the wife to be maintained by the husband. He referred to the case of Erhahon v. Erhahon (1997) 6 NWLR (Pt 510) 667; Onabolu v. Onabolu (2005) 2 SMC 135 He also
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contended that there is no evidence before the Court that the Appellant was unemployed but rather was to be transferred out of Lagos State. He referred to the Appellant’s Counsel letter dated Friday, February 16, 2007.
On conduct of parties, Counsel submitted that on the authorities of Hayes v. Hayes (2000) 1 SMC 207 & Lumsden v. Lumsden (1963) 5 FLR 388 conduct of parties is relevant in the consideration for maintenance.
Naturally, the man has the duty of looking after his wife and children. Unfortunately, the couple was not blessed with children together. Therefore, the Appellant is obliged to maintain his wife but this is a discretionary power of the Court to grant. Nanna v. Nanna (2006) 3 NWLR Pt.966 page 1, Erhahon v. Erhahon (supra) Olu-Ibukun v. Olu-Ibukun (1974) Supreme Court of Nigeria Judgment. It has been held that before a Court makes an order for maintenance, it must take some factors into consideration.
These includes
(a) the parties income;
(b) earning capacity and by implication properties owned by each party
(c) financial resources;
[d) financial needs and responsibilities;
(e) standard of life
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of the parties before the dissolution of the marriage, their respective ages and the length of time they were husband and wife.
Nanna v. Nanna (supra) Negbenebon v. Negbenebon (1971) 1 All NLR page 210, Ibeawuchi.
The income of the 1st Respondent was determined as she was said to be a civil servant still working with Queens College, Lagos. She let out her official quarters in Festac Town. She rented it out to be able to pay for the house that the Federal Government had sold to her. She gave in evidence that she was given a room in Queens College. That means that she was not paying for rent and no transportation cost. There is no child to the marriage. This means that she had only herself to fend for.
On the contrary, the Appellant was paying for his apartment. He had no job and he was doing a part time schooling. From the above, it does not appear that his position is buoyant enough to pay for maintenance to the 1st Respondent.
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In this case, I would think that the 1st Respondent seems to have a more settled situation and a better charted future. She has her salary and her retirement benefits for the future. She also had her house in
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Festac to fall back after retirement.
Indeed under the English jurisdiction, the Courts have a discretion to order wives to pay maintenance to their husbands especially where a wife is in a better financial position than the husband. Thus a husband can successfully petition for divorce and also ask for maintenance.
Calderbank v. Calderbank (1975) 3 WLR page 586.
This discretion fortunately is not part of the Nigerian Law. In Nigeria, the husband is supposed to take care of his wife. However, I don’t think the man is the stronger of the two in terms of finances. I therefore hold that the Appeal succeeds in part in the following aspects.
1) The marriage is dissolved on the Petition of the cross-Petitioner Mrs. Comfort Oluchi Okaome.
2) I also hold that she is entitled to the one lump sum of N200,000.00 as awarded by the trial Court against the party cited.
3) However, I set aside the award of N20,000.00 monthly maintenance against the Appellant.
N50,000.00 cost against the Appellant.
Other Citations: (2016)LCN/8882(CA)
