Lawrence Olu-Ibukun & Anor v. Adesola A. Olu-Ibukun (1974)
LawGlobal-Hub Lead Judgment Report
FATAYI-WILLIAMS, J.S.C.
In Suit No. WD/32/72 filed in the Lagos High Court, the petitioner, now respondent, petitioned for the dissolution of her marriage to the respondent. In the said petition she also payed inter alia,
“that she may have alimony pending suit, maintenance, maintenance for the children, and a secured provision.”
Paragraphs 8, 10(c) and 11 of the Petition read:
“8. That the respondent who is a physicist and educationist and former don at the University of Ibadan and holder of a Ph.D. degree is at present Chief of Mission for Africa under U.N.E.S.C.O. and earns a basic salary of over 10,000 (tax free) in terms of Nigerian currency.
10(c) At present the respondent does not maintain the petitioner at all and in so far as the children of the marriage are concerned he only pays their school fees.
- That the marriage between the petitioner and the respondent has broken down irretrievably.”
While admitting in his Answer to the Petition that the marriage has broken down irretrievably but for different reasons, the respondent, now appellant, denied that he earned a basic salary of 10,000 or over in his employment. He then averred further in paragraphs 21 to 25 of his Answer as follows:
“21. That persons in the petitioner’s profession and with her experience are in high demand and she could easily obtain employment but has deliberately abstained from being employed in the nursing profession solely to claim money from this suit but she nevertheless engages in business with her mother.
- That the petitioner was engaged in the nursing profession during her stay in Kenya with the respondent.
- That the respondent’s present overseas pay is about 5,000 per annum inclusive of allowances of which only a maximum of 1,000 is payable and transferable to Nigeria.
- That the respondent’s present contract expires in May, 1972.
- That the respondent’s last full time salary in Nigeria was 1,400 and his present pay is because he is serving outside his country of birth.”
An affidavit of means in which he gave more details about his income and about the income of the petitioner was attached to the Answer. The petitioner filed a counter-affidavit in reply. In this she denied the averments in the petitioner’s affidavit and gave details of her own income.
The application for the ancillary reliefs prayed for in the petition was duly heard on 26th June, 1972. It seems to us, after a perusal of the notes made by the learned trial judge at the hearing, that learned counsel on both sides had argued the application on the basis that an application for alimony pendente lite and one for maintenance are one and the same, and also that an order in respect of the former could be made in the present proceedings.
In his ruling on the application, the learned trial judge observed, inter alia, as follows:
“The jurisdiction of the Court to order the payment of alimony pending suit is by no means in doubt. The position is clearly stated in Volume 12 Halsbury’s Laws of England 3rd Edition p. 346 at paragraph 733 where the following statement of the Law appears:-
‘On any petition for divorce or nullity of marriage judicial separation or restitution of conjugal rights, the Divorce Division of the High Court has power to make such interim orders for the payment of alimony to the wife as the Court thinks just.’
This power is exercisable even where there is clear evidence of the wife’s adultery.”
adequate alimony for the wife pending the hearing of the petition, the learned trial judge found as follows:
“Before their separation the Petitioner, the Respondent, and their three children had lived together both in Nairobi and Paris. The eminent position of the husband, as UNESCO’s Chief of Mission for Africa, must have conferred on his wife a unique social status not only in the community in which they lived in Kenya and France, but also among her friends and colleagues in Nigeria. I have also to consider the fact that, in Lagos, she has no separate accommodation of her own; consequently she has been forced, with her three children to reside at Mushin with her mother. These children attend the Sunnyfield Primary School at Surulere. This fact must impose on the Petitioner, who lives in Mushin, a measure of discomfort in taking the children to and from school. With this in mind the wife claimed in paragraph 7(c) of her petition as follows:
‘That the respondent should pay the tuition and other incidental school fees and bills and be responsible for the maintenance, clothing, transport to and from school and all other incidental expenses of these children. ‘
I think I cannot fairly assess the alimony in this case without taking into account the hardship with which the petition will be afflicted, particularly in the matter of taking the children to and from school. I have decided, therefore, to make such an award in the wife’s favour as will restore her as near as possible to the status she formerly enjoyed as wife of an officer of her husband’s rank and position. I will, therefore, order the husband to pay his wife, by way of alimony pendente lite, the sum of 100 monthly or 1,200 per annum, with effect from the 28th March,1972, when the petition for divorce was filed.”
In the appeal now before us against this order the main complaint of the appellant is that the maximum amount to which the petitioner is entitled as alimony pendente lite is one fifth of the joint income of both the husband and the wife. The total income of the petitioner as found by the learned trial judge is 984 per annum. Therefore, what the learned judge should have awarded as alimony pendent lite is an amount which would have brought the petitioner’s income to about one-fifth of their joint income. Since the joint income of the parties was found to be 5,984 per annum, the award to the petitioner, on the basis of this formula, should have been 213 which would have put her income up to the sum of 1,197 which is approximately one fifth of their joint income. To award the petitioner the sum of 1,200 per annum, as the learned trial judge has done, is indefensible because this has brought the income of the petitioner to 2,184 per annum which is far in excess of the one fifth of the joint income to which the petitioner is entitled.
Learned counsel also complained that, without taking oral evidence, the learned trial judge appeared to have resolved the conflict in the affidavits filed by the parties against the respondent/appellant and that he has also taken into consideration averments in the Petition which has not been heard. Finally learned counsel urged us to set aside the order of the learned trial judge and direct that the application be heard before another judge.
In reply, learned counsel for the petitioner referred us to the provisions of section 70(2) of the Matrimonial Causes Decree (No. 18 of 1970) but had to concede that the learned trial judge made his award, not under that Decree in which there are no provisions for the award of alimony pendentelite, but under the English Matrimonial Causes Act of 1950 (as amended). Learned counsel nevertheless contended that the order was properly made and in support he referred us to Halsbury’s Laws of England, 3rd edition, Vol. 12, paragraph 745 which states that while it is usual to allow the wife, as alimony pendentelite, such an amount as will make her total income one-fifth, it is now the tendency of the courts to deprecate any arithmetical rule of assessment and to emphasise the discretionary aspect of the award. For this reason, the learned counsel for the petitioner contended that the award is reasonable and should not be disturbed.
In the first place, we do not see how, faced with the conflicting averments in the Petition and in the Answer to it, and also with the conflicting affidavits filed by both parties, the learned trial judge could have arrived at the conclusion that the petitioner has a “unique social status” in Kenya, France and Nigeria, that she has no separate accommodation of her own, and that the fact that she lives in Mushin while her children go to school in Surulere must impose on her “a measure of discomfort in taking the children to and from school.” It is clear from his ruling all these controversial matters which were yet to be resolved, were taken into consideration by the learned trial judge in making his award. We think he was in error to have done so. In this connection, the following observation of this court in Akinsete v. Akindutire (1966) 1 All N.L.R. 147 at page 148 is apposite. It reads:
“In the face of the direct conflict of affidavits on crucial facts, the learned trial judge, we think, should have heard oral evidence from the deponents or such other witnesses as the parties may be advised to call. The judgement of Bannerman, J., on appeal which the West African Court of Appeal upheld in Government of Ashanti v. Adjuah Korkor, etc. 4 W.A.C.A. 83 is authority for this It is, of course, open to the court to act on affidavit evidence in cases in which the facts are not disputed or in which the parties agree that this should be done; and it is only fair to say that in the present case neither side asked to be allowed to cross-examine any of the deponents or to call any witness.
We do not however think that this omission by the parties can be taken to amount to consent that affidavit evidence be used in this case in which the facts in issue were irreconcilably in conflict.”
(See also the judgement of this court in S.C.179/1972-Oki & Ors. v.Eboh & Ors. delivered on 31st January, 1974, on the same point.
Apart from the above, the learned trial judge seriously erred in making an order, as he did, on the basis that the application was one for an alimony pendentelite. Admittedly, the petitioner, in addition to her application for maintenance, also asked for alimony pendente lite in her petition. Learned counsel for both parties, at the hearing of the application, appear to be confused as to the difference between an application for alimony pendente lite under the English Matrimonial Causes Act of 1950 (including the Rules made thereunder) and an application for maintenance pending the disposal of proceedings made under the Matrimonial Causes Decree 1970 (Decree No. 18 of 1970 which came into force on 17th March, 1970). Be that as it may, there can be no doubt whatsoever that the order of the learned trial judge was for alimony pendente lite. He made the order, notwithstanding the absence of any provision for such an order in the Matrimonial Causes Decree (hereafter referred to as the Decree), and in spite of the peremptory provisions of section 1 (1) of the Decree. Indeed, the learned trial judge himself, in the course of counsel’s argument, pointed out to learned counsel for the respondent that his affidavit contained nothing concerning maintenance.
The provisions with respect to maintenance are in section 70 of the Decree and they are as follows:-
“70( 1). Subject to this section, the court may in proceedings with respect to the maintenance of a party to a marriage, or of children of the marriage, other than proceedings for an order for maintenance pending the disposal of proceedings, make such order as it thinks proper, having regard to the means, earning capacity and conduct of the parties to the marriage and all other relevant circumstances.
(2). Subject to this section and to rules of court, the court may, in proceedings for an order for the maintenance of a party to a marriage, or of children of the marriage, pending the disposal of proceedings, make such order as it thinks proper, having regard to the means, earning capacity and conduct of the parties to the marriage and all other relevant circumstances.
(3). The court may make an order for the maintenance of a party notwithstanding that a decree is or has been made against that party in the proceedings to which the proceedings with respect to maintenance are related.
(4). The power of the court to make an order with respect to the maintenance of children of the marriage shall not be exercised for the benefit of a child who has attained the age of twenty-one years unless the court is of opinion that there are special circumstances that justify the making of such an order for the benefit of that child.”
Not only have the above provisions done away with the confusing terminologies of “alimony”and “maintenance” by using the word “maintenance” even when alimony in the conventional sense is intended, they have also presumably done away with the rule concerning one-fifth of the joint income for the wife (which, in any case, had its origin in the practice of the ecclesiastical courts), and have substituted a more reasonable yardstick.
Incidentally, the above provisions of section 70 are precisely the same as those of section 84 of the Matrimonial Causes Act, 1959-1966, of Australia. It will be observed that while subsection (1) of section 70 of the Decree requires the court in proceedings for maintenance, other than proceedings for maintenance pending suit, to make such orders as it thinks proper having regard to the means, earning capacity, and conduct of the parties, and to all other relevant circumstances, subsection (2) requires the court in an application for maintenance pending the disposal of proceedings (such as the one made in the case in hand) to have regard to the same matters but subject to the rules. Although no rules have been made under the Decree, we think it relevant to point out that the Australian. Rules (and particularly rules 204(6) and 210) not only limit the court’s enquiry to matters of conduct other than conduct that is in question in the proceedings for principal reliefs (unless this is admitted), they also set out detailed procedure on the various circumstances under which orders for maintenance in pending proceedings can be obtained. (See Toose on Australian Divorce Law and Practice paragraph 702 at pages 442-443). However, as Latham, C.J. has observed in Jeffery v. Jeffery (1941) 72 C.L.R. 570 at p. 581, each case must be considered in all its peculiar circumstances and particularly with regard to the station in life and the financial position of each of the parties. Moreover, in Wills v. Wills (1961) 2 EL.R. 136, which is another Australian case, the court held that the order for maintenance pending suit is not for the purpose of enabling the wife to share the husband’s fortune, but to ensure that the wife should be able to live approximately in the position to which she has been accustomed until the suit is heard.
From the above, it cannot be gainsaid that some of the matters considered by the learned trial judge are not particularly relevant when the application for maintenance pending suit is considered within the framework of section 70(2) of the Decree. If he had acted with these provisions of the Decree in mind, the learned trial judge would neither have applied the one fifth rule nor would he have had any regard to other matters which must be and are irrelevant to a consideration of ancillary reliefs. He was clearly in error in doing so.
For all these reasons, we cannot allow the order of the learned trial judge to stand. The appeal is, therefore, allowed. The order of the Lagos High Court made on 10th July,1970, for the payment by the respondent/appellant of the sum of 100 monthly or 1,200 per annum to the petitioner as alimony pendentelite, including the order as to costs, is set aside.
We further order that the application for maintenance of the petitioner pending the disposal of her Petition should be sent back to the Lagos High Court for rehearing before another judge who should also at the same time see to it that the main petition is heard as soon as possible. There will be no order as to costs.
Other Citation: (1974) LCN/1961(SC)
