Mrs. Victoria Abimbola Bakare V. Mr. Bankole John Bakare (2016)
LawGlobal-Hub Lead Judgment Report
JAMES SHEHU ABIRIYI, J.C.A.
This appeal is against the judgment delivered on the 24th October, 2013 in the High Court of Ondo State sitting at Akure.
By an amended petition for a decree for the dissolution of the marriage between the Appellant and the Respondent, the Appellant also sought custody of the five Children of the marriage and a declaration that both parties are joint owners of a landed property which the Respondent bought during the pendency of the marriage but the development of which the petitioner contributed immensely towards.
The facts of the petition as can be gathered from the evidence of the Appellant and her father at the lower Court are simple. They are as follows: The parties got married on 2nd April 1988 and the marriage was blessed with five children:
1. Olaoyenikan Bakare, Female, 25years.
2. Abimbola Bakare, Female, 23years.
3. Damilola Bakare, Female, 20years.
4. Iyanuoluwa Bakare, Female, 13years.
5. Similoluwa Bakare, Female, 11years.
According to the Appellant throughout the period of conception and delivery of the five
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children she was solely responsible for them.
The Respondent has the habit of beating her and sending her out of the matrimonial home and he is disrespectful to her parents.
On 5th April 2010 the Respondent came into her bedroom and told her to start packing her things. She pleaded with the Respondent but the Respondent was adamant and said that her sight irritated him. As she was begging he slapped her. She left when the Respondent threatened to throw her things out.
She left with the children but the Respondent later went and carried them.
She went and reported to the Respondent’s people. They talked to the Respondent and he released the children to her. The children are now between 11years and 25years. She has been responsible for the children’s school fees. She tendered some of the school fees receipts which were admitted and marked Exhibits B-B7.
She encouraged the Respondent to build the house. She gave him money to raise the house from foundation to roofing level. She did the floor and burglary proofs in the house. She did not engage in any immoral behaviours.
She urged the Court to grant her
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custody of the children. When the children were with the husband she was the one providing food and pocket money. If she is granted custody of the children she will be responsible for their accommodation and feeding. However the Court should order the respondent to be paying the children’s school fees, medical bills and the children’s general upkeep.
In his defence the Respondent stated that after the marriage they lived together as husband and wife. His late mother took the Appellant as her own daughter. There was love in the entire family. There were occasions when they had misunderstanding which both of them settled.
He has been paying the school fees of the children as shown by various receipts Exhibits C-C6, D-D12, F-F6 and G.
However, there was a time he had financial crisis because someone made away with some money in his office and he pleaded with his wife to help out with the children’s school fees. That was the only time she assisted.
?When the Appellant was on transfer to Ibadan she was involved in some immoral behavior. She shunned the advice of her parents and her church – The Redeemed Christian Church of God
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(RCCG).
He has no intention of divorcing the Appellant. He is ready to forgive her if she is ready to mend her ways and come back home.
After considering the evidence led and addresses of learned counsel for the parties, the lower Court dismissed the Appellant’s petition.
Dissatisfied with the decision of the lower Court, the Appellant has approached this Court by a notice of appeal dated 4th January, 2014 but filed on 6th January 2014. The appeal is brought upon only one ground which is reproduced immediately hereunder:
“The decision of the Court is against the weight of evidence before the Court.”
From the above ground of appeal the Appellant presented the following issue for determination:
Whether having regard to the pleadings and evidence before at the trial Court, the Learned Trial Judge was right to have dismissed the Petition for dissolution of marriage.
On the 1st February 2016, this Court made an order setting the appeal down for hearing and determination on the brief of argument of the Appellant alone as the Respondent failed to file his brief of argument despite service on him of the Appellant’s
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brief filed on 2nd May, 2014.
The appeal is therefore argued on the appellant’s brief alone dated 1st May 2014 and filed on 2nd May 2014 settled by Sanmi Owoeye, Esq.
Arguing the appeal, learned counsel for the Appellant submitted that the judgment was not supported by the weight of evidence adduced before the lower Court. It was submitted that the lower Court wrongly accepted evidence and the inference he drew and conclusions he reached based on the accepted evidence cannot be justified. The judgment of the lower Court at page 49-50 was reproduced by learned counsel for the Appellant.
It was submitted that the inference drawn or conclusion reached on the accepted evidence cannot be justified.
It was submitted that the lower Court should not have considered the evidence of the Respondent at the lower Court that he did not want to divorce his wife and that he was open to reconciliation because in his answer to the petition he asserted in paragraph 17 thus:
“That the respondent avers that it is proper for the Court to dissolve the marriage for the interest of peace as the petitioner is no longer interested in the
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relationship.”
It was submitted that the above paragraph of the Respondent’s averment shows that he did not object to the dissolution of the marriage. The lower Court should not have allowed the Respondent to depart from his pleadings and make out a completely new different case at the trial.
It was submitted that the Respondent having indicated in the pleadings that he had no objection to the dissolution of the marriage the lower Court should not have admitted and relied on evidence to the contrary to the detriment of the petitioner as the Court should not base its judgment on an issue not pleaded or an issue that is clearly at variance with the pleading.
It was submitted further that the lower Court allowed sentiments to affect its judgment because it stated in its judgment at page 50 of the record of appeal thus:
“This is a marriage that has lasted for twenty-five years and has produced five children ranging from ages 11 to 25. It is therefore, in my view, a relationship that cannot be casually terminated. It is unfortunate that the only witness that gave evidence in support of the dissolution of the marriage is the petitioner’s
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father. A man in his eighties should be possessed of significant wisdom to reconcile his daughter with her husband instead of giving evidence in support of the dissolution of his daughter’s twenty-five years marriage without a thought for the effect it will have on his grand-children.”
The position of the law, it was submitted is that sympathy cannot override the law. We were referred to Effiom v. Ironbar (2001) FWLR (Pt. 53) at 137.
The Court was urged to resolve the sole issue for determination in favour of the Appellant as it is apparent that the petition for dissolution of marriage would have been granted based on the provision of Section 15(e) of the Matrimonial Causes Act Cap 20 2004 LFRN.
By virtue of Section 15(2) of the Matrimonial Causes Act, 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 following facts namely:
a) that the respondent has willfully and persistently refused to consummate the marriage;
b) that since the marriage the respondent had committed adultery and the
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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 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 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
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and proof of one of these grounds or facts is in the eyes of the law, conclusive proof of irretrievable breakdown of the marriage. See Ibrahim v. Ibrahim (2007) 1 NWLR (Pt. 1015) 383.
A Court cannot dissolve a marriage or declare a marriage to have broken down though it appears the marriage has broken down irretrievably unless one of the listed facts is established by the petitioner. The law requires that the petitioner should state clearly the specific ground or grounds for divorce as listed in Section 15(2) above. See Ibrahim v. Ibrahim (supra) and Damulak v. Damulak (2004) 8 NWLR (Pt. 874) 151. The law provides that in matrimonial causes, a matter or fact shall be taken to be proved if it is established to the reasonable satisfaction of the Court. Thus in divorce suits, a decree shall be pronounced if the Court is satisfied on the evidence that a case for the petition has been proved.
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While in civil, cases generally, failure to deny any allegation in the statement of claim is taken to be an admission of that claim, the same rule does not apply to matrimonial causes. This is so because divorce proceedings are not governed by the High
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Court Rules but by the Matrimonial Causes Rules and the Matrimonial Causes Act. See Section 82(1) (2) of the Matrimonial Causes Act and Ibeawuchi v. Ibeawuchi (1973) E.C.S.L.R. Vol. 3 (Part 1) 56.
The Court was urged to resolve the sole issue in this appeal in favour of the Appellant as it is apparent that the petition for dissolution of the marriage would have been granted based on the provision of Section 15(2)(e) of the Matrimonial Causes Act Cap 20 Laws of the Federation 2004 had the Respondent given evidence in line with his pleadings.
Section 15(2)(e) of Matrimonial Cause Act has been reproduced elsewhere in this judgment. It is nowhere reproduced in the brief of argument of the Appellant. For this reason I will reproduce it again immediately hereunder:
“15 (2) (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.”
Was this a ground/fact pleaded by the Appellant?
In the amended petition the Appellant pleaded in paragraph 17 thus:
“17. The petitioner avers
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that respondent has been and still conducting himself in a manner contrary to his marriage covenants and contrary to the general societal concept/values/mores of mutual love and affection between husband and wife. The marriage has broken down irretrievably due to irreconcilable difference as parties have lived since the 5th of April 2010.”
I have looked at the facts upon which the petition was brought at page 23-25 of the record of appeal. Apart from Paragraph 17 of the petition reproduced above, it is impossible to fish out any ground/fact upon which the petition is brought. It is not possible even from Paragraph 17 of the petition reproduced above to say that the petitioner has stated clearly the specific ground upon which the petition is brought. Is the Appellant alleging that the marriage has broken down irretrievably because the Respondent is still conducting himself in a manner contrary to his marriage covenants? Is the Appellant alleging that the marriage has broken down irretrievably because the Respondent is conducting himself contrary to general societal concepts/values/mores of mutual love and affection between husband and wife? Is the
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Appellant alleging that the marriage had broken down irretrievably due to irreconcilable differences? Is the Appellant alleging that the marriage has broken down irretrievably because the parties have lived apart since 5th April, 2010?
It is very clear from the pleadings that the petitioner failed to state clearly the specific ground or grounds for the divorce she seeks.
Matters were not helped either when she testified in Court.
At page 33 of the record of appeal the Appellant stated thus:
“The respondent live at off Adabol Petrol Station Oke-Aro, Akure while I live at Molahan Quarters off Awule Road, Akure.”
At page 35 she stated further:
“On 5/4/2010, he just banged into my room and told me to start packing my load. I pleaded with him but he was adamant as he said my sight irritates him. As I was begging him he slapped me and the children came out of their room. I left when he threatened to throw my things out.”
There is nothing from the pleadings and evidence of the Appellant to bring her case within Section 15 (2)(e) of the Matrimonial Causes Act as suggested by learned counsel for the Appellant.
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Therefore
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Paragraph 17 of Respondent’s answer to petitioner’s petition to which learned counsel for the appellant harped upon cannot help the appellant’s case at all.
In any case it is clear from the evidence of the Respondent that he had abandoned Paragraph 17 of the Respondent’s Answer to the Petition when in his evidence in Court, he said he had no intention of divorcing his wife.
There was therefore nothing on which the Court could hold that the Respondent did not object to the grant of divorce even if the lower Court wrongly relied on the unpleaded piece of evidence complained of. The abandoned pleading in paragraph 17 remained a mere averment and not evidence.
From the pleadings and evidence led by the Appellant, it cannot be said that she was entitled to the dissolution of the marriage.
I do not agree with learned counsel for the Appellant that the remark made by the lower Court on the father of the Appellant influenced its decision on this matter.
The sole issue for determination in my view should be resolved in favour of the Respondent.
I resolve it in favour of the Respondent and I dismiss this appeal for want of
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merit.
Other Citations: (2016)LCN/8757(CA)
