Meme V Meme (1965)

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BRETT J.S.C.

On the 5th February, 1962, the appellant filed a petition praying for the dissolution of his marriage to the respondent on the grounds of cruelty and desertion. On the 23rd June, 1962, the respondent filed her answer denying his allegations and praying that the marriage be dissolved on the grounds of his adultery and desertion.

She also prayed “that she may be granted such sums by way of alimony pending suit, secured provisions, security for costs and maintenance as the Court may deem fit.” No interim order was made for alimony pending suit, and on the 22nd October, 1962, Sowemimo, J., dismissed the petitioner’s prayer and granted the respondent’s prayer for the dissolution of the marriage. No appeal has been brought against this part of this judgment.

The judge went on, however, to deal with the prayer for alimony pending suit and maintenance in the following terms-

“She has also asked for an alimony pendente lite as well as security of costs and maintenance. It is not in dispute that the petitioner had not maintained his wife since August, 1958. The husband is earning a salary of £946 per annum and, according to him, in addition he earns £78 as an Acting Senior Superintendent of Police.

The woman on the other hand, is earning £684 per annum as a Nursing Sister. I take into consideration that she would now herself have to provide for the rent of the premises where she lives, feed herself and pay for the motor transport which had formerly been provided by the husband.

She has asked for maintenance of between £10 and £12 per month. I will order that in the circumstances of the case the petitioner should pay maintenance to the wife from August 1958 up to date of the judgment at the rate of £10 per month, and as security for the payment of the maintenance the petitioner should enter into bond with sureties to be approved by the Court to secure the payments of the maintenance as ordered.

I have also been asked to grant in the special circumstances of this case a permanent alimony in favour of the respondent. I am satisfied on the evidence before me that the petitioner had been receiving the salaries of this woman from 1950 to 1958 and has disbelieved the respondent that she stopped receipt of these salaries in 1952, but as I have had occasion to refer to this earlier on it was a voluntary act of the respondent herself to hand over the money to her husband, as she was never bound to do so.

It has never been stated that it was a condition of the husband marrying the respondent that she should pay over her salary every month to the petitioner. I therefore hold that considering the circumstances of this case I would not order the permanent alimony as requested but grant the relief which I have stated earlier on.”

The appellant submits, first that the judge had no power to order alimony pending suit to be paid as from a date 32 years before the suit was instituted, and secondly that since neither the institution of the suit nor the granting of the decree brought any change in the relative financial resources of the appellant and the respondent there can be no justification for granting alimony pending suit if permanent maintenance is refused.

On the first point the appellant is undoubtedly right and the only period for which the respondent could in any event receive alimony pending suit is that during which the suit was pending, i.e., from the 5th February to the 22nd October, 1962. The difficulty in which we find ourselves as regards the second point is that we are, with all respect, unable to understand the process of reasoning which led Sowemimo, J., to refuse permanent maintenance.

The word “therefore” in the last sentence of the passage which we have cited implies that he regards his final decision as being the logical consequence of what has gone before, but we cannot see what bearing the matters dealt with in the earlier part of that paragraph have on the claim for permanent maintenance, that is maintenance after the dissolution of the marriage. We feel that the judge may have misunderstood what it was that the prayer asked for.

However, the respondent has not appealed against the refusal of permanent maintenance, and we must take it that she is content with the judge’s order. She was, as the appellant submits, no worse off financially while the suit was pending than she was immediately after the decree was granted, and we can see no justification for treating her differently during the period while the suit was pending.

For these reasons the appeal is allowed and the order for maintenance and for security is set aside.

Other Citation: (1965) LCN/1231(SC)