The Respondent as Petitioner filed a divorce petition against the Appellant as Respondent at the Osun State High Court sitting at Ilesa. The Respondent and Appellant were joined in marriage on 1st July 1989 at St. Thomas Catholic Church Ogotun Ekiti. According to the Petitioner/Respondent not long after the marriage, she discovered that the couple was not compatible. The husband was always beating her. At times he would lock her up and thus prevent her from going to work. He was always suspecting her of going out with another man. She was even admitted in the hospital as a result of the beating. The Appellant even beat her sister and father who tried to intervene. She had to leave her house which she built when the husband poured hot water on her. They both built the house. She was the one that bought the (plot) land in her husband’s name and her name. When she bought the land and started building, she was keeping the receipts with the husband to appease him and make him happy. The husband spent N700,000 on the building.
Although the Appellant stated that he was only interested on the issue of the house, the Appellant nevertheless opposed the dissolution of the marriage because he invested in the wife and did not want to lose his investment. He also still loved the wife. He denied ever beating the wife. He did not do anything to make the wife leave the matrimonial house. It was discovered in 2004 that the wife was befriending one Mr. Femi Odebode but she denied the affair. Since then, she started staying away from the house for days. Efforts to reconcile with her proved abortive. Although the wife caused him to be arrested by the police and be detained for two days, he still loved her.
The land and the house belonged to him and not to the wife. The house is not worth N3 million. He built it with mud block.
After considering the evidence before him and addresses of learned counsel for both parties, the trial Court entered judgment in favour of the Petitioner/Respondent in part. The Appellant was dissatisfied and he approached the Court of Appeal asking it to set aside the judgment and dismiss the Respondent’s case upon six grounds of appeal. The following three issues were formulated from the six grounds of appeal.
1. Whether the writing of affidavit verifying the facts of the divorce petition on a separate document other then on the petition complied with Order V rule 10(1) of the Matrimonial Causes Rules 1983 to make the divorce petition of the respondent competent for the court to entertain.
2. Whether or not the ancillary orders made by the trial Court on settlement of property are supportable in law and in equity.
3. Whether or not from the pleadings and evidence adduced by the parties their marriage could be said to have broken down irretrievably.
Arguing issue 1, learned counsel for the Appellant submitted that the affidavit verifying the facts stated in the petition was not on the petition itself but filed separately. This it was submitted was not in compliance with Order V Rule 10(1) of the Matrimonial Causes Rules 1983 and rendered the petition incompetent which robbed the Court of jurisdiction to entertain the suit. On issue 2, it was pointed out that the Respondent as PW1 said the house was her own and that she built it herself but that this is not supported by the pleadings. Therefore the claim of the Respondent that the Appellant be ejected from her house ought to fail. It was submitted that the trial Court rightly held that the house was a matrimonial home jointly owned by the Petitioner and Respondent. As such the Respondent cannot be ejected therefrom as demanded by the Petitioner. However the trial Court somersaulted when it ordered the Respondent to vacate the matrimonial house. The Trial Court, it was submitted, correctly held that the Respondent “cannot just be ejected” as demanded by the Petitioner only to overrule itself and consequentially order the Appellant to vacate the matrimonial home and further directed the Chief Registrar to conduct a public auction of the house and distribute the proceeds of sale. It was submitted that the trial Court having found that the house was a matrimonial home jointly owned by the parties, ought to have invoked the provisions of Section 72 of the Matrimonial Causes Act, Cap 220, Laws of the Federation which deals with settlement of property. Section 72 of the Matrimonial Causes Act, it was submitted, is wide and sufficient for the Court to exercise its powers in settling the property without recourse to Yoruba custom which is inapplicable to this matter under the Marriage Act. On issue 3, it was submitted that despite the fact that there were three children of the marriage, the Respondent still argued that the marriage was not consummated. It was submitted that Section 15(2)(a) of the Matrimonial Causes Act will not avail the Respondent because there was consummation of the marriage between the Respondent and the Appellant.
On Appellant’s issue 1, learned counsel for the Respondent submitted that the Appellant having failed to bring an application before the trial Court to set aside any irregularity in the petition cannot be heard to be raising such an objection at this stage for the first time. It was further submitted that under Order XXI Rules 2-4 of the Matrimonial Cause Rules, a petition cannot be defeated by any irregularity in the proceedings. On issue 2, it was submitted that the trial Court has unfettered discretion to make the order it made for the Appellant to vacate the house and for same to be sold by the Chief Registrar. Amaechi v. I.N.E.C. (2008) 33 NSCQLR (Pt. 1) 348; (2007) LPELR-9039(CA). On issue 3, it was submitted that the pleadings and evidence adduced by the parties show that the marriage had broken down irretrievably. The Court was referred to the remark of learned counsel for the Appellant at the trial Court that they were not contesting the divorce and all they were interested in is the issue of the house. Having caused the Respondent to narrow the issue to the house, it would cause the Respondent hardship to go into whether or not the marriage had broken down irretrievably. The trial Court was therefore right; it was submitted, in pronouncing the dissolution of the marriage.
In determining issue 1, the Court cited that case of Unegbu v. Unegbu (2004) 11 NWLR (Pt. 884) 332 where the Court per Mahmud Mohammed JCA (as he then was) held that failure to do exactly what is required by Order V Rule 10(1) of the Matrimonial Causes Rules could be fatal to a petition. The Court noted that in that case which is very similar to this in the sense that Order V Rule 10(1) of the Matrimonial Causes Rules was not complied with the petition was struck out. The Court further noted that in that case objection was raised to the non compliance by the Respondent immediately he was served with the petition. However, the Respondent in this case raised no objection to the processes served on him, participated in the trial and conceded in part to the petition in that he did not object to the dissolution of the marriage. It was after hearing, addresses of counsel and judgment that the Appellant now sought to have the petition struck out for failure to comply with the rule. The Court held that when an irregular procedure is adopted with the acquiesce of a party to a civil action such irregular procedure cannot be a ground of appeal. Also where a wrong procedure has been followed in filing a process and no objection was raised by the party who should have objected, the Court is entitled to proceed with the hearing despite the wrong procedure followed. See Sonuga & 1 OR v. The Minister of the Federal Capital Territory & 1 OR (2010) LPELR 19789. The Court further held that the Appellant having maintained his silence on the wrong procedure in filing the petition after he had been served with the processes and participated in the trial to the end should therefore hold his peace. Issue 1, was therefore resolved in favour of the Respondent.
On issue 2, the Court agreed entirely with the Appellant’s counsel that there was no basis for the somersault by the Trial Court. Having found that the Appellant cannot be ejected from the house it amounted to the same thing asking him to vacate the house and for it to be sold and the proceeds distributed according to Yoruba custom. The Court agreed totally with learned counsel for the Appellant that Yoruba Customary Law was inapplicable to this petition for the dissolution of a statutory marriage. There was therefore no basis for invoking Customary Law principles of distribution of the proceeds of the sale of the house. The Court held that the issue of dealing with the house under Yoruba custom had no basis as the marriage between the parties was not customary but statutory marriage. Issue 2 was resolved in favour of the Appellant.
On issue 3, the Court held that no marriage will be dissolved merely because the parties have agreed that it be dissolved. The Court held that it will not be dissolved merely because it is a contract between two willing parties as the learned trial Judge held. The Court noted that the policy of the law is to preserve the institution of marriage. That is why marriages will not be dissolved on agreement of parties to it. The Court held that a decree for the dissolution of marriage would therefore only the granted if the petitioner has proved that the marriage had broken down irretrievably and that the petitioner finds it intolerable to live with the respondent. See Section 15 of the Matrimonial Act and Damulak v. Damulak (2004) 8 NWLR (Pt. 874) 651. Issue 3 was resolved in favour of the respondent.
On the whole, the Court held that the appeal succeeds in parts. The order of the Court ordering the Appellant to vacate the matrimonial house and directing the Chief Registrar to get a valuer to value the house, sell by public auction and distribute the proceeds was set aside. The Court affirmed the decree granted for the dissolution of the marriage and the order restraining the Appellant from threatening or disturbing the Respondent at her place of work or abode.
•Edited by Lawpavillion
