Lt. Col. Shehu Ibrahim (Rtd) V. Mercy Ibrahim (2006)

LawGlobal-Hub Lead Judgment Report

OLUKAYODE ARIWOOLA, J.C.A.

This is an appeal against the decision of the Kaduna High Court delivered on 9th June, 2000 in the divorce petition of the Appellant

The facts of this case are that, the petitioner, herein after referred to as the Appellant, and the Respondent got married under the Act on 15th December, 1979. The marriage is blessed with four children, three females and one male. Both parties had cohabited in the following places: Military Cantonment, Jalingo, Gongola State; No. 12 Ogunlowo Street, Ikeja, Lagos; Nigeria Army Barracks Alamala, Abeokuta, Ogun State; and Flat 6, Block A, No. 8A, 2nd Avenue, Ikoyi, Lagos. The Appellant had taken out a petition at the lower Court against the Respondent herein and sought a decree for the dissolution of the marriage between him and the Respondent. The facts relied upon by the petitioner as constituting the ground leading to the breakdown of the marriage as specified in the petition include mainly:

(i) that since the marriage, the Respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the Respondent due to infidelity, idolatry and hostility.

(ii) 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.

The petitioner testified and tendered a few documents that were admitted as exhibits but he did not call any other witness. The Respondent though filed an amended answer to the petition and a cross-petition, she later abandoned these and did not come forward to defend the petition or prosecute her cross-petition.

Upon being satisfied that the Respondent had had adequate notice of the hearing of the case, the trial Court proceeded to hear the case and in a considered judgment, the learned trial Judge dismissed the petition without any consequential order on the 2nd and 3rd legs of the petitioner’s prayer. Dissatisfied with the decision of the High Court, the Petitioner appealed to this Court against the whole judgment.

The Notice of Appeal dated 3rd July, 2000 but filed on 7th July, 2000 contained the following grounds herein reproduced without the particulars:

“Ground 1

The learned trial Judge erred in law by wrongly assessing issues not raised by the Petitioner both in his petition and oral evidence and basing his judgment on same.

Ground 2

The honourable Court misdirected himself in fact by wrongly rejecting evidence adduced by the petitioner and wrongfully substituting it with evidence not adduced at all by the petitioner.

Ground 3

The judgment of the Court is against the weight of the evidence made before it”

Having been granted leave by this Court, the Appellant’s brief of argument to this appeal was deemed to have been duly filed on 30th October, 2001. In the said brief of argument, the Appellant formulated the following issues for determination.

Issue No.1

“Whether infidelity, idolatry and hostility were actually the only facts relied upon by the Petitioner, all of which he must prove to secure a dissolution of the marriage but did not or there were other additional facts relied upon by the petitioner also which are contained in the petition and all of which were proved.”

Issue No.2

“Whether under Section 15(2)(c) of the Matrimonial Causes Act, facts required to sustain a petition for a dissolution of marriage are limited at all or limited by Section 15(2) or Section 16(1) and facts relating to infidelity, idolatry, matrimonial hostility( cruelty) and return of dowry are irrelevant and excluded from the facts needed to be proved.”

Issue NO.3

“Whether the judgment was not at variance with evidence adduced by the Petitioner at trial. ”

There was proof of service of the Appellant’s brief of argument on the Respondent but she did not file any brief of argument in response. After this Court was also satisfied that the Respondent was adequately notified of the hearing of the appeal, the Court proceeded to hear the appeal. The learned counsel to the Appellant adopted the brief of argument for the Appellant and this Court thereby reserved its judgment.

In arguing the appeal, the learned appellant’s counsel took the above issues seriatim –

On Issue No.1, he referred to the Matrimonial Causes Act, 1970 and contended that under the law the ground upon which a marriage can be validly dissolved is one, and that is as contained in Section 15(1) of the Matrimonial Causes Act. He cited Anagbado vs. Anagbado (1992) 1 NWLR (pt 216) 207 at 217. He submitted that this is the ground upon which the Petitioner herein called upon the trial Court to dissolve the marriage.

Learned counsel referred to Section 15(2) of the Act and submitted that the ground upon which the Court can dissolve marriage as expressed under Section 15(1) of the Act is different from the facts under Section 15(2) with the accompanying subsections (a) – (h) there under. He further submitted that it is the facts that require proof but not the ground. He referred to the ground of this petition in paragraph 1 on page 124 of the record and the facts relied upon as contained on pages 126 – 129 of the record of proceedings. Learned counsel contended that the petitioner came under Section 15(2)(c) of Matrimonial Causes Act but not just under Section 15(2) simply, which he contended is a mere preamble or prelude, introducing the subsections (a) – (h) which consist of a list of relevant facts required to be proved. He submitted that the trial Court was wrong to have relied on Section 15(2) of the Act only without tying it to any of the sub-sections (a) – (h) of sub-section 2. He urged the Court to resolve Issue No. 1 infavour of the Appellant.

On Issue No.2, learned counsel to the Appellant again referred to Section 15(2)(c), Matrimonial Causes Act and paragraph 9 (a) – (z) of the petition on page 126 of the record of proceedings. He cited Otti vs. Otti (1992) 7 NWLR (pt 252) 187 at 208. He submitted that the law represents the aggregate effect of the various ways or behaviours of the Respondent which the Appellant cannot reasonably be expected to live with and not the behaviours themselves. He also cited Williams vs. Williams (1966) 1 All NLR 36, Oladetohun vs. Oladetohun Unreported Suit No. HD/111/70 of July, 1971.

He referred to Section 16(1) of the Matrimonial Causes Act and contended that it does not contain anything on cruelty or hostility, hence could not have been made to defeat any petition for the dissolution of marriage generally and thereby force on one of the parties to a marriage that is a mere empty shell, even when there is evidence of real threat to life or limb as in the instant case. He urged the Court to resolve Issue No. 2 in favour of the Appellant.

On Issue No.3, learned counsel to the Appellant contended that because the issues are interwoven, he adopted the argument in respect of Issues No. 1 and 2 above for the third issue for determination.

Learned counsel, referred to Section 82(1) of the Matrimonial Causes Act, in particular, the phrases.” reasonable satisfaction” and ” :.. if the Court is reasonably satisfied” and submitted that they refer to the burden of proof on the petitioner and once discharged by leading evidence, the standard of proof reverts to proof on a preponderance of probability. He contended further that with the evidence adduced by the petitioner, the Petitioner discharged the burden on him to prove and he did so creditably, he submitted. He referred to the Respondent’s answer and cross petition which were struck out and concluded that the Court was left with only the evidence adduced by the Petitioner to evaluate.

He finally urged the Court to allow the appeal, set aside the judgment of the lower Court and enter judgment in favour of the Appellant by dissolving the marriage.

Generally, dissolution of marriage contracted pursuant to our marriage Law is guided by Matrimonial Causes Act, Cap. 220. Under the said law, a petition by a party to a marriage for a decree of dissolution of the marriage may be presented to the Court by either party to the marriage upon the ground that the marriage has broken down irretrievably. See Section 15(1) of Matrimonial Causes Act.

The law also provides for the facts, one or more of which a petitioner must establish before a Court shall hold that a marriage has broken down irretrievably. It reads thus –

Section 15(2) –

“The Court hearing a petition for a decree of 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 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 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 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”

From paragraph 9 of the Amended Petition on page 124 of the record of proceedings, the facts the petitioner relied upon as constituting the grounds leading to the breakdown of the marriage in that since the marriage, the Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with the Respondent are given as follows:

“(a) The parties to the marriage have lived apart for a continuous period of at least two years immediately proceeding (sic) this petition due to the hostility of the Respondent to the Petitioner;

(b) The Petitioner on several occasions (sic) required mutual friends of the parties as well as the Respondent’s uncle – a former General Manager of Palmline Agencies Limited – to appeal to the Respondent to change her behaviour and uncontrollable/aggressive temper with a view to avoiding frictions in the matrimonial home to no avail.

(c) The Respondent never for once heeded meaningful advice and appeal from friends and relatives of both the Petitioner and the Respondent.

(d) The Respondent attempted to murder the Petitioner with a bottle in the home of the parties and without reason.

(e) The Respondent was instrumental to the premature retirement of the Petitioner from the Army by contriving to or stealing the Petitioner’s service pistol gun by the Respondent’s relation which dented the records of the Petitioner with the Army.

(f) The Respondent’s first pregnancy was from extra marital affairs and she committed abortion of it when the Petitioner objected to paternity of the pregnancy.

(g) The Respondent is fetish/idolatrous. She had introduced the feathers of Vulture into the Petitioner’s bedroom and also put in black objects wrapped with tread into the Petitioner’s meal for undisclosed reasons.

(h) The Respondent is a desperate personality and has trait to commit suicide as same is in the Respondent’s family traits.

(i) The Respondent by her conduct drove the petitioner from the matrimonial home, as the Petitioner was constantly under great tension/fear of attack even while asleep or poisoning his meals outright.

(j) Sometime in April, 1989, the Petitioner wrote a letter dated 28th April, 1989 to the Respondent’s father intimating him of:

(a) the bitter experiences he had since his marriage to the Respondent.

(b) the state of the very uncordial relationship between himself (i.e. the Petitioner) and the Respondent and his (Petitioner) decision to bring his marriage to the Respondent to an end.

(k) The Petitioner has continued to provide for the upkeep maintenance, necessaries, school and medical bills of the children of the marriage namely: Aishatu, Habiba, Rakiya and Ibrahim, all of whom presently reside with the Respondent.

(l) Petitioner also continues to consummate the marriage though with extreme difficulty until 1994 when the Respondent willfully stopped/refused making herself available for sex despite the Petitioner’s demand.

(m) The Respondent also refused to move down to Kaduna to domicile with the Petitioner despite demands and pleas from the Petitioner and relations to the Respondent.

………………………………………

(n) On the 28th day of December, 1989, the Respondent out of her own volition and in consonance with her Bashama Customary Law returned to the Petitioner the sum of One hundred and ninety naira (NI90.00) paid on

her by the Petitioner, all as an acknowledgment of the irretrievable breakdown of the marriage.”

As I stated earlier, the Petitioner testified but called no other witness. After tendering a copy of the certificate of marriage and stating the places where he had cohabited with the Respondent, the Petitioner stated further as follows:

“For 4 years now we have not had sexual intercourse inspite of demands. She has been resisting sex, she has refused to live with me even prior to my retirement. When I completed my house in 1987 in Kaduna Malali where I am now residing, she refused to move to Kaduna even though she furnished the house. She is very aggressive.

In December, 1989 she returned my dowry N190,00 which is in compliance with her native custom. I said she should hold it as a gift, she persisted. The total sum of all these behaviours led to the killing of the marriage. ‘

We have four children, three girls and one boy. Aisha 15 years, Habiba 14 years, Rakiya 13 years and Ibrahim 11 years.

I have two cases in Lagos. I did not complete. I was urge(sic) by friends, relations to withdraw the case.

Her cruelty dates back at (sic) Jalingo where she was always antagonize on small issues. At a point she threw a bottle – a flower vase towards my head to inflict injury but I dodged. On several occasions she locked me out of the house and in the process, I used the windows to get into the house. She is fetish and idolatrous. I saw a prayer in my room with a bottle with contents that are strange including some big feathers. She was always blocking efforts of mediation even from her people.

She contributed to the loss of my service pistol which was in my room and that loss of pistol can be partly linked to my retirement _

At a point (early point) in our marriage, she had extra marital relationship that led to her pregnancy which I denied. It was during the period 1979 – 1980 which she traveled all the way to Kaduna for D and C.”

From the above, it is clear that the Petitioner relied upon the facts in Section 15(2) (c) and (e) of the Matrimonial Causes Act. In other words, what the Petitioner proposed at the lower Court to prove that the marriage between him and the Respondent had broken down irretrievably were;

“(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;

…………………………..

(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 does not object to a decree being granted.”

Now, taking the Issues formulated for determination, there is no doubt that the Issues were badly drawn up. Indeed they are rather clumsy, to say the least, and could have been more succinctly put in an issue or two as follows:

(a) Whether the evidence adduced in totality were not enough to satisfy the trial Court that the marriage had broken down irretrievably.

(b) Whether the judgment was not at variance with evidence adduced by the Petitioner at trial. The Court is ordinarily not obliged to accept the issues for determination as framed by the appellant. In appropriate cases, the court may decide suo-motu to frame issues. But any issue so framed by the court must not “depart from the contents or purport and ramifications ‘of the issues already framed by the parties and distilled from the grounds of appeal”. See; NEKA B.B.B. Manufacturing Co. Limited vs. A.C.B. Limited (2004) 17 NSCQR 240 at 250; Fabiyi vs. Adeniij (2000) 6 NWLR (pt 662) 532 at 546.

However, I shall take Issues No. 1 and 2 together as formulated by the Appellant as one Issue in the determination of this appeal. On this Issue, can it be said that with the evidence adduced by the Petitioner at the trial, the lower court should have been satisfied that indeed the Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with her? There is no doubt that the Petitioner pleaded several facts including infidelity, idolatry and hostility in his petition (See paragraph 9 at pages 126 – 129 of record of proceedings supra). ‘But these facts were required to be proved by credible evidence.

It is trite that, merely pleading a fact without credible evidence adduced to prove it goes to no issue. Averments in petition like pleadings not being human do not have mouth to speak or talk in Court. They must be made to speak through human beings called witnesses. Otherwise, the averments remain lifeless and moribund and cannot be regarded or considered by the Court as any useful material in support of the owner’s case. See; Peter Ojoh vs. Owuala Kamalu & 3 Ors. (2005) 18 NWLR (pt 958) 523 at 565.

The law is settled that averments in pleadings as in petitions are no evidence and cannot be so construed. They are mainly to set out the evidence that a party is likely to adduce and present during trial, so that the adversary would not be caught unaware or unprepared. Indeed, that is the purport of exchange of pleadings. Averments in pleadings must necessarily be proved by evidence, except of cause, where they are admitted clearly by the other party. See; Akanmu vs. Adigun (1993) 7 NWLR (pt 304) 218 at 231, Honika Sawmill Nig. Limited vs. Hoff (1994) 2 NWLR (pt.326) 252 at 260, Insurance Brokers of Nig. vs. A.T.M. Company Ltd. (1996) 8 NWLR (pt 466) 316 at 328, Nigerian Advertising Services Limited & 1 Or. vs. U.B.A. Plc & 1 Or. 23 NSCQR 127 at 139.

In the instant case, there is no doubt that the Petitioner pleaded several facts which he meant to prove in support of his claim that the marriage with the Respondent had broken down and cannot be retrieved. Hence he believed he should be entitled to the prayer sought from Court including the dissolution of the marriage.

First and foremost, the learned counsel contended that there is only one ground for the dissolution of marriage in our law. This with respect may not be totally correct, to say the least, as there are several grounds which the Matrimonial Causes Act refer to as “facts”. (See; Sections 15(2) and 16(1), Matrimonial Causes Act. However, in Nigeria, a Court cannot dissolve a marriage or declare a marriage to have broken down unless one of the facts listed in Section 15(2) is established by the petitioner, even though it appears the marriage has broken down irretrievably. See; Service Omopariola Okojie vs. Michael Abodele Oko unreported Suit No. WD/21/7 Lagos High Court, delivered on 10th March 1976; Mohammed Damulak vs. Lesley Patricia Damulak (2004) 8 NWLR (pt 874) 151 at 166.

In respect of the provisions of Section 15(2) (c) of the Matrimonial Causes Act as stated above, it is pertinent to ask; what sort of behaviour of the respondent should the Petitioner not reasonably be expected to put up with? In Katz vs. Katz (1972) 3 All ER 219, Sir George Baker, P. stated thus:

“Behaviour is something more than a mere state of affairs or a state of mind, such as for example, a repugnance to sexual intercourse, or a feeling that the wife is not reciprocating his love, or not being as demonstrative as he thinks she should be. Behaviour in this con is action or conduct by the one which affects the other. Such conduct may either take the form of acts or omissions or may be a course of conduct and in my view it must have some reference to the marriage.”

In otherwords, the conduct of a respondent that a Petitioner will not be reasonably expected to put up with must

be grave and weighty in nature as to make further cohabitation virtually impossible.

However, before the Court will come to that conclusion, the entire history of the marriage has to be considered. In other words, the Court must consider the totality of the matrimonial history of the parties to the petition. See; Ibeawuchi vs. Ibeawuchi Unreported, decision of this Court in Suit No. FAC/E/5/82 delivered on 22nd September, 1982 per Oputa, J (as he then was).

Furthermore, when the wording’ of the provisions of Section 15(2)(c), of Matrimonial Causes Act is carefully considered, it is clear that the standard of behaviour envisaged of the respondent, which the Petitioner will not reasonably be expected to live with, will be decided by the Court. That is, it is an objective test but not subjective. In other words, the requirement of Section 15(2) (c) unlike Section 15(2) (b) of the Matrimonial Causes Act which test is subjective, the Court must be satisfied that the Petitioner cannot reasonably be expected to live with the respondent before a decree sought is granted. See; Damulak vs. Damulak (supra).

The instant case is a peculiar one in that it was not defended by the respondent. Only the Petitioner testified without calling another witness to corroborate his testimony.

In his judgment, the trial Judge in appraising the evidence adduced by the Petitioner stated thus: “The facts on which the Petitioner relies are the alleged infidelity, idolatry and hostility of the Respondent/Cross Petitioner. Although he did not rely on the facts of the Respondent deserting him, the Petitioner led evidence to that effect. Although the Petitioner had basis for leading the evidence in proof of that fact, no evidence has been led to the satisfaction of the Court that the Respondent has deserted the Petitioner

……………………………………………………..

Again although refusal to consummate the marriage is not a fact on which the Petitioner relied, he testified to the fact that the former denied him sexual intercourse. But under cross-examination he said he had an affair with the party cited No. I at the time his wife had a baby and that he was still insisting that the wife denied him sexual intercourse at a time she had just had a baby for him. Surely even if it had been a fact relied upon, this Court would have rejected the evidence as not establishing the fact to the satisfaction of the Court.

On the allegation of infidelity, the Petitioner testified to the fact that not long after their marriage the wife had a pregnancy by another man which she aborted. In any case both of them continued to live together thereafter and she had children for him.

Even the alleged cause of his dismissal as a result of the alleged loss of his service pistol was not borne out by the evidence. See Exhibit 8. Petitioner in any case did not establish that the Respondent was responsible for the loss of the pistol.

It is clear from the evidence led by the Petitioner that he has not proved his case to the reasonable satisfaction of this Court to warrant the making of a decree dissolving the marriage.”

In matrimonial cases, it is highly desirable that the evidence adduced by parties is corroborated by evidence of independent witnesses. And in practice, the courts do require such corroboration, unless the absence of witnesses to provide such corroboration has been satisfactorily accounted for. It has been held that, in particular, in undefended suits, such as the instant case, the need for corroboration is far greater. See; Lucy Chienyenwa Ibeawuchi vs. Aloysius Ibeawuchi. Unreported case of High Court of the East Central State, Onisha Judicial Division, delivered on 19/2/1973 per Oputa, J (as he then was) in Suit No.0/6D/72.

I am not in the slightest doubt therefore that the petitioner failed to prove the alleged intolerable behaviour of the Respondent which he wanted the court to believe and find -that he cannot reasonable be expected to continue to put up with. There is no doubt that infidelity, idolatry and hostility were not the only facts the petitioner relied upon to prove that he is entitled to the decree dissolving the marriage. Actually there were other facts alleged in the petition. But the question is; did the petitioner prove those facts? Indeed none of the allegations raised against the respondent was grave and weighty enough to amount to intolerable behaviours envisaged by Section 15(2) (c) of the Matrimonial Causes Act and none of the facts was proved. In other words, the requirements of Section 15(2) (c), Matrimonial Causes Act which the petitioner relied upon were not met. The lower court was therefore right in dismissing the petition and in its refusal to grant the decree sought. Accordingly, Issues No.1 and 2 are resolved against the appellant. Furthermore, the petitioner also alleged and averred that the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding this petition due to the hostility of the Respondent to the petitioner.

By Section 15(2) (e), Matrimonial Causes Act;

“The court hearing a petition for a decree of dissolution of a marriage shall hold the marriage to have broken down irretrievably if, but only if, . ……………the petitioner satisfied the court 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 does not object to a decree being granted.”

Ordinarily, for the purpose of subsection 2(e) of Section 15 above, the parties to a marriage shall be treated as living apart unless they are living with each other in the same house hold. See; Section 15(3), Matrimonial Causes Act.

In order to establish the fact in subsection 2(e) above of Section 15 of the Matrimonial Causes Act the petitioner is expected to prove the following constituent elements-

(i) that the parties to the marriage have lived apart;

(ii) for a continuous period of at least two years immediately preceding the presentation of the petition; and

(iii) that the respondent does not object to the decree being granted.

From the totality of the evidence adduced by the petitioner, I am satisfied that none of the above constituent elements of the requirement of Section 15(2) (e) of the Act was proved, Indeed no credible evidence was adduced by the petitioner to prove the fact.

From the printed record of proceedings, the place of residence where the respondent had been staying in Lagos is the official residence of the petitioner. This is clear from his pleadings and there is nothing to show that he has relinguished the residence since he retired. It was therefore still the matrimonial home of the parties, the fact that they had yet another house in Kaduna notwithstanding.

Similarly, there was need and it is important for the petitioner to have shown by credible and admissible evidence that the respondent did not object to a decree being granted. But there is no evidence, adduced by the petitioner to prove that the respondent actually did not, at the trial of the suit, object to the decree of dissolution of marriage sought being granted. The judgment was therefore not at variance with the evidence adduced by the petitioner before the trial court. In the circumstance, Issue No. 3 is hereby resolved against the appellant. Indeed no credible and admissible evidence was adduced by the Petitioner, as required by law, to prove the facts alleged, hence the failure of the petition.

In the final analysis, I hold that this appeal is lacking in merits and is hereby dismissed. Accordingly, the judgment of J.S. Abiriyi, J. in suit No. KDH/KAD/530/96 delivered on 9th June, 2000 is hereby affirmed.

I make no order for costs.

---

Other Citations: (2006)LCN/1976(CA)