Divorce-Custody-Amendment of Petition to include custody-Mr. TobechiObianuju Opara V Mrs. Ugochi Pamela Opara (Nee Adim)-delivered by Hon. Justice Innocent M. Njaka

IN THE HIGH COURT OF IMO STATE

IN THE MBAISE JUDICIAL DIVISION

HOLDEN AT HIGH COURT OF JUSTICE, AHIAZU MBAISE

ON THE 9^TH DAY OF APRIL 2019

BEFORE HIS LORDSHIP: – HON. JUSTICE I. M. NJAKA

SUIT NO: HAM/11D/2017

BETWEEN

TOBECHI OBIANUJU OPARA PETITIONER/RESPONDENT

AND

MRS UGOCH PAMELA OPARA (NEE ADIM) RESPONDENT/CROSS PETITIONER

JUDGMENT

This is a Notice of Petition for dissolution of marriage filed on 9^th August 2017 on the ground that in the year 2013, the Respondent disserted the Petitioner and since then, the Petitioner does not know the whereabouts of the Respondent and cannot have access to her.

The Petitioner sought the following reliefs:

The petitioner seeks a decree of dissolution of the marriage between him and the Respondent on the ground that the marriage has broken down irretrievably.
Custody of the child of the marriage should go to the Respondent until the child becomes adult thereafter custody goes to the petitioner.
The Respondent should always allow the Petitioner access to the child and that the child should be always allowed to stay with the Petitioner when the petitioner wants.
An order for the maintenance, welfare, advancement and education of the child to be shared by both parties to this suit.

The Respondent filed answer to the petition and a cross petition and seeks the following reliefs:

A decree of dissolution of the marriage on the ground that the marriage has broken down irretrievably.
That the Respondent/cross petitioner be granted custody of the only child of the marriage subject to reasonable access to him by the petitioner.
The petitioner shall be responsible for the school fees and other educational requirements of the child.
The petitioner shall pay and give the Respondent cross petitioner a subsidized monthly maintenance allowance of N100, 000 (One Hundred Thousand Naira) from the date of judgment in this case.
An order directing the petitioner to pay the Respondent N2, 000,000 (Two Million Naira) being the cost of medical expenses of the late child of the marriage.
An order that the petitioner shall pay the Respondent the cost of these proceedings ‘

The Petitioner filed reply to the Respondent’s answer and the Respondent filed REJOINDER PURSUANT TO ORDER VII (6) (1) OF RULES

On 18^th December 2018, the Petitioner brought an application to amend Particulars of Orders/Decree sought in this suit by deleting Orders 2, 3, and 4 and replacing them with an ORDER of the Honourable Court granting custody, maintenance, advancement, education and welfare of the only surviving child of the marriage to the Petitioner.

The Respondent in opposition to the amendment filed a Reply on points of law. The Petitioner on service of the Respondent’s Reply on point of law, filed a reply on point of law.

TESTIMONY OF THE PETITIONER

At the hearing, the Petitioner testified as follows:

The only surviving child of this marriage is Master Louis Chidiebere Opara. He was born in the year 2011 and it is my case that I want to have custody of him and my reasons are as stated below.

I am a successful business man now based in Lagos. I am into import and export business and therefore capable of taking care of the child of this marriage and training him up to post graduate level. I have a comfortable residence of 3 bedrooms flat at No. 17 Agulu Kesington Estate, Amuwo Odlfin, Lagos with good living facilities. Also in my village, I occupy a comfortable accommodation which is in a very big family residence of 2 duplexes in Obazu Mbieri Mbaitoli.

The inheritance cultures of the tribe of parties to this suit is patrilineal. Therefore, the child needs to know the culture of his father’s place so as to be culturally, psychologically and emotionally equipped for future political and other endeavours. Also, there is a complex feeling of male children in Igbo culture who grew outside their father’s home.

The Respondent has no job and comfortable accommodation. She is a squatter with her sister who is said to live with the husband and children in Abuja. Also, she intends to re-marry, abandon the child to her old parents in the village who are unpaid pensioners or to other relations if she remarries. The Respondent always allows the surviving child of the marriage to live with her younger sister named Ogonna Adim who lives alone in Port Harcourt. The girl in question is a chronic lesbian and such character is likely to corrupt the child if the girl in question continues to stay/live with this child.

Our home is a good Anglican one. My parents are committed Knights of St. Christopher in the Anglican church.

I wish to state that on the 22/4/2011 referred to by the Respondent in her cross-petition, the Respondent who had been very disrespectful to members of her matrimonial family, insulted her father-in-law and when some of my elder siblings cautioned her, she started insulting every member of that family and in other to calm the situation, I drove the Respondent out and later in the day when tension was down, we came back home. Later, my parents called Respondent’s parents to take the Respondent and counsel her. This was done and after that, the Respondent came back to her matrimonial home.

The Obazu Mbieri Hospital the Respondent referred to in paragraph 3(d) of her answers to the petitioner is my family hospital for so many years. It is manned by a London-trained medical doctor Dr. Ehiri who was the former Medical Director General Hospital Mbieri Mbaitoli LGA. He is also a Chief Consultant with Federal Medical Center Owerri till the time of this oath.

In 2013 when the Respondent was pregnant for the 2^nd child of the marriage, I personally drove her to Holy Rosary Hospital Emekuku and paid for all her ante-natal medical attention therein and also in Federal Medical Center Owerri. However, when the child was about to be delivered, the Respondent secretly deserted her matrimonial home with all her belongings while I was away for a business trip in Umuahia and left for her maiden home in Emii Owerri North L.G.A. of Imo State. When confronted, the Respondent said that she needed to be close to the mother in preparation for her child-birth. Later, when the Respondent was to be delivered of the child, Respondent’s mother took the Respondent to the above hospital and had the Respondent operated upon for delivery without informing or seeking my consent.

Nevertheless, the petitioner paid for all Respondent’s medical expenses and that of the new-born child when he knew. Surprisingly, when the Respondent and the child were discharged from the hospital, the Respondent vacated the hospital with the child and her mother to continue living in her said maiden home in Emii Owerri North without my consent. This happened a day before the day both I and the Respondent had agreed I would come to pick-up the Respondent and the children of the marriage back to their matrimonial home. I only got to know about this when I came to the hospital on the day earlier agreed but was told by the hospital management that the Respondent left the hospital the day before. I went to Respondent’s maiden home but the Respondent’s mother refused the Respondent going back with me (to) my home. Nevertheless, I continued to cater for the deceased child and personally drove the Respondent and the said child to Federal Medical Center Owerri for circumcision. Later, Respondent’s mother insisted that the only condition the Respondent would join me was that I must live outside my native home (which had been the place parties to this suit cohabited). Since I could not afford that as at then, the Respondent started refusing me access to her and the children of the marriage and this has continued till the time of this oath.

While refusing me access as stated above, the 2^nd child of the marriage died in the custody of the Respondent and I do not know where the child was buried till the time of this oath. From enquiries I made, I discovered that the child died out of complications from child-birth and not as alleged by the Respondent.

I have never assaulted the Respondent before but was properly taking care of her and the children of the marriage before she deserted. Before Respondent’s dissertation of her matrimonial home, I was also sponsoring her in a post-graduate programme at the Federal University of Technology Owerri. All receipts for all the bills I paid for the children and that of the Respondent have always been in the custody of the Respondent.

Cross examination:

I am presently living alone. I said I am in the business of clearing and forwarding. I know what a bill of lading is. Once a client has a consignment, he issues you a bill of lading. It is the paper concerning the consignment. A carrier can be truck carrying a container or a crane. The shipping company issues a bill of lading to the importer. When asked you last co-habited with your wife in your father’s house in your village, he replied “when we first married we lived in my father’s house, very spacious and big house. No. It is a bungalow with eleven (11) rooms. That was where we lived. After the separation, I relocated to Lagos. I have an in-law in the airport section and I stay at the wharf section. He lives at Egba in Lagos and I lived at Amuwo Odofin FESTAC Town. When asked “Your clearing and forwarding business keeps you busy and very lucrative?. He replied: “It is lucrative. It is not too busy. I am self employed. I go to work when I have work. The Custom people resume work by 10am and I am through by 4pm.

He was asked that his kind of clearing and forwarding is meanly at the seaport and replied: “I do job only in Lagos. It is not related to any other seaport. If I have a job in Port Harcourt I will send friends in Port Harcourt, they will do it and give me my own commission.

My child was born in 2011 and he is 7 years this year. He was told that the child has been in the custody of her wife since separation and he replied: “I have gone myself to pick the child and she said no. I have sent the elders and she said no and they refused me to see the child.

He was asked if from the day of the separation he has ever provided any fund for the upkeep of the child and he replied “When this started I was going to the house, I was giving her money at a point the father started threatening me that he will send boys after me, so people advised me not to be going there. They stopped picking my call and I stopped going, for I do not know how to send fund again. No communication.

Even when I was staying with them, if I am leaving town to spend maybe 1 week or 2, I use to drop money for her. As a good father, I am supposed to drop money for my son’s upkeep.

She was eight months pregnant when she left the house. I was in Umuahia in a contract; I dropped money for her to be taking care of herself. What she did was to charter keke, park all her clothes and left one box. Inside the box were rag and our wedding album and traditional wedding album. My wife delivered its child at Emukuku Hospital. He was asked whether he was the one that took her wife to Emekuku Hospital, and he replied: “The mother took her; she was already at her mother’s place”. He was asked whether he ever took his wife to any hospital and he replied “Yes”. I was informed when the child was delivered. He was asked if he was also informed that the child was sick, and he replied: “The mother called me that she was having contraction and I told her to wait I was coming, it was about 10pm. The mother told me not to come and that she will not allow gate man to open gate for me, so I went there early in the morning before I got there the mother has already signed that the CS should be done and bring out the baby. She told me about the bill, I gave them the money, the mother asked me to give the money to the father that they know how to handle them.

He was asked if he did get to know that the child had issue after birth with his health, and he replied “He had issue with his health on the day of circumcision

He was asked if he did try to see what can be done about the child, and he replied: I was the one that took the baby to the Hospital, Emekuku. There and then the doctor said we should take him to FMC Owerri. I carried my wife with the baby to FMC. On getting to FMC, they said I should deposit money which I did. They admitted the baby and gave us some test to run which we did. After the test. It was discovered that the baby was not due before the CS was carried out to bring the baby out. A friend of mine a doctor in FMC after a long while advised that we should take the baby home and pray over it. The child was just three months

He was asked if he knows how many weeks she stayed after leaving the house before she was delivered of the baby, and he replied: About 2 weeks. I cannot remember now the months the child was delivered. He was asked if he is aware that his wife took the child to Enugu, and he replied: “I heard so because they have already pushed me away with the doctor. He was asked that when they pushed him away with the doctor, he did not do any other thing, and he replied: “After 5 days the father in-law called me that the child is dead that I should come and carry the child. He equally sent test message.

He was told that as a person in a very lucrative business, he makes about 4 to 5 Hundred Thousand monthly, he replied: In our business I cannot tell you that I make 100,000 or any amount. It is what comes that we have.

He was asked if he does talk to his son since after the separation for the past 4 years, he replied “Twice. One of the days somebody called with a hidden number and I heard a voice, daddy today is my birthday. And I said happy birthday before I could say more the line was cut off.

TESTIMONY OF RESPONDENT/CROSS PETITIONER:

I agree to the dissolution of the marriage between my husband and 1. On 22/4/11, I was delivered of the only surviving child of the marriage, Master Chidiebere Louis Opara. 11 months after delivery in the month of February 2012, my husband and his brothers who were living with us in the same house, that is their father’s house at Obazu Mbieri, had a terrible quarrel this led to my husband taking me and our child out of the house at night at about 3pm during the said quarrel.

In the morning my parents came to the house having been informed of the situation by my husband’s younger sister, and my father in-law asked my father to take me and my child to his house because as he said he could not guarantee my safety and that of my child in his house, my parents took me and my child home for safety.

I stayed in my parents’ house from February 2012 to April 2012, when my husband’s brother in-law (Barrister Ogechi Edward Osuoha), married to my husband’s sister came back from America and took me and my child back to Obazu Mbieri to my husband.

Following my return I became pregnant with the second child of the marriage, but my husband became very hostile to me and refused to look after me and the pregnancy, and did not try to register or take me to the hospital for any medical care, on one occasion when I became very sick and was about to die, I was taken to a local hospital at Obazu Mbieri where there was no qualified doctor. Thus when the pregnancy became due, I went to Emekuku hospital where my parents had registered me.

Upon the delivery of the baby boy it was discovered that the child had a problem with his heart, my husband showed no interest in the well-being of the child as he did not provide any funds for the treatment of the child nor did he take any action to save the child.

I rushed the child to UNTH Enugu, where they referred us to India for heart surgery, I contacted my sister in Lagos who arranged with Kanu Foundation who was prepared to sponsor the operation in India, but unfortunately before arrangement could be concluded the child died on 22/12/13.

After the child’s death my husband and his father sent a delegation to my parents on 5/1/14 and detailed them to inform my parents that they are no longer interested in the marriage and that I should not come back home. Since then my husband has refused to provide for the upkeep of the only child of the marriage and 1.

I married to my husband on 27/12/10 and that we were domiciled and cohabited in Nigeria.

My husband has since 5/1/14, disserted me and my child and has completely abounded us. He has not provided for myself and our child’s upkeep. He has refused to allow us back to the matrimonial home. He has not visited and or attempted to visit me and the only child of the marriage.

Since the marriage my husband never provided a proper accommodation for me, we lived in one room in the village house built by my father in-law together with the parents and siblings of my husband. My husband allowed and encouraged his mother to harass me and curse me. My husband is uncaring and selfish and always unleashed physical and mental violence on me.

Throughout the duration of the marriage between me and my husband at no time did I insult my husband, his father or any of his family members? It is not true that Dr. Ehii, Manns the Local Hospital at Obazu Mboeri the said doctor who is a Chief consultant at the Federal medical Center Owerri has no connection with the Local Hospital at Mbieri.

My husband did not take me to Emekuku Hospital during the pregnancy of the 2^nd child of the marriage. My husband abandoned me and I had to go to my parents for help and upon delivery of the child my husband never provided any funds for the medical bills of the child nor did he visit me and the child at Emekuku Hospital, Federal Medical Center Owerri or University of Nigeria Teaching Hospital Enugu until the child died.

I did not marry my husband because he is from a well to do family. During the courtship between my husband and I, my husband never complained when I got pregnant for him and he went willingly to pay my bride price. The only surviving child of the marriage has never gone on holiday to my sister nor, to any other person and my sister is not a lesbian or a tomboy she is very responsible.

When I got married to my husband he had no hand work and we lived in one room in his father’s house in the village and till date my husband has no handwork, he presently lives with his in-law at Lagos, he cannot afford an accommodation of his own and he is not in the business of clearing and forwarding.

I am a staff of Alliance in Motion Global Nig. Ltd a distribution company and live in a one bedroom flat at Abuja where I pay N180.000 (One Hundred and Eighty Thousand Naira) annually and I have consistently paid the school fees of the only child of the marriage, my husband has refused to provide for the upkeep of the child. I operate an account with diamond bank

My husband has married another wife whose name is Ezinne Ogazie and this new wife will not be favourably disposed to the only child of the marriage, I have been providing motherly love and care for the child which cannot be provided by the new wife of my husband. It is not true that a male child will only know the culture of his place, if he is in the custody of the father, both my husband and I are of Igbo extraction, whose culture are substantially the same and my husband will have access to the child if custody is granted to me.

My husband wants custody of the child of the marriage for the sole purpose of hurting me and to hand over this child to his siblings without any interest in the welfare of the child.

I work with alliance global motion. I live at Abuja-Lugbe Federal Housing Lugbe Abuja. In paragraph 22 I stated that I work with Alliance in Motion Global. That is my ID. ID of the Respondent is admitted and marked as exhibit A. I also stated that I paid for one bedroom I occupy in Abuja. These are receipts of rent. Receipts of rent from 2014 – 2019 is admitted in evidence and marked exhibit B1-5. I also mentioned that I pay school fees for the child. This are the school fees receipts. The receipts of school fees covering 2014 -2018 are admitted and marked exhibit C1-5. I stated that I operate account with diamond bank. That is the statement of account. Statement of account admitted and marked exhibit D

CROSS EXAMINATION

I did not do any change of name before assuming my maiden name as my surname. After my marriage I started bearing Ugochi Opara. She was asked when she started using Ugochi Adim, and she replied: “After my marriage I did not change me surname. After my marriage I continued maintaining my maiden name

It is correct that since I left the petitioners house the petitioner has not seen the son except today. The Petitioner does not know where I live. Since I left matrimonial home, I have never visited the petitioner. I have not ever visited his family. When asked that it is correct to say that the day she finally left the petitioner, the petitioner was not at home”, she replied: “He was not at home but he was aware. I told him. He is aware and he told me that I can go. My intention to go to my father’s house was to go and deliver and come back.

After the child was delivered the petitioner came to the hospital. No it is not correct that he drove me and the baby to my maiden home. He was aware when I left. When asked: “Have you ever tried taking the child to the petitioner? She replied: “No, he abandoned us at the hospital since 6/10/13 at FMC Owerri. Yes when I was with the petitioner, I was doing post graduate course At FUTO Owerri

It is correct to say that after leaving his house I never completed the course, because he did not complete paying my school fees. He was not the one sponsoring me, it was his elder sister. He was not doing anything. I have a sister called Ogonna, that is our last born. It is not correct to say that I want to keep away the child from the petitioner continuously.

It is not correct that I no longer want to marry the petitioner, but I was surprised that the father of the petitioner one day sent his kinsmen to my father’s house on Sunday 5/1/14 with warning to tell us that he has dissolve the marriage. When asked: It is correct that your parent does not want you to marry the petitioner, she replied: “My parent does not have a say in my marriage. It is the petitioner who said they have dissolved the marriage. When asked: “Do you still love the petitioner, she answered No

The petitioner never assaulted me for one day while living with him. It was put to her that the petitioner was taking care of her before and during the marriage and she replied: No. I do not have intention to remarry. I do not know that the petitioner lives in Lagos now. She was asked if she knows anybody called Ezinne Ogazi, she replied: “I do, the lady my husband is married to. She is From Umuchima Nwiri Ubagu in Mbaitolu. She was reminded that she had earlier told the court that the petitioner intends to marry Ezinne Ogazi, and she replied: “Yes, I did, but they are married now. She was asked when the marriage celebrated and she answered: It was last year but I cannot remember the date. She was asked: Where was the marriage celebrated? And she replied: “The petitioner has done the marriage rites and they are living together. I did not witness it but the rites have been done by the payment of dowry. I have friends over there who are not happy that the petitioner is getting married to Ezinne Ogazi

On the put question that the petitioner is not married to anybody including Ezinne Ogazi or to any other person except you, she replied “That is a lie. It was further put to her that there has never been any time marriage was celebrated between the petitioner and the so called Ezinne and she replied: “They are married; they have done the traditional rites, payment of dowry. She was asked how much dowry was paid and she replied: “I was not there. It was put to her that no dowry has been paid and she replied: “Dowry has been paid, I am 100% sure

At the close of evidence parties filed address. The Petitioner in his address formulated issues for determination

WHETHER THE COURT OUGHT TO GRANT DISSOLUTION OF MARRIAGE IN THIS SUIT
WHETHER COURT CAN GRANT LEAVE TO THE PETITIONER TO AMEND HIS RELIEF
WHO IS ENTITLED TO THE CUSTODY OF THE ONLY CHILD OF THE MARRIAGE
WHO TAKES RESPONSIBILITY OF THE MAINTENANCE AND WELFARE OF THE CHILD?
WHETHER THE RESPONDENT IS ENTITLED TO MONTHLY ALLOWANCE AND COST OF HOSPITAL BILL OF THE CHILD OF THE MARRIAGE

On issue 1, according to the Counsel to the Petitioner, in his petition, the Petitioner prayed for dissolution of the marriage on the ground that the Respondent deserted the marriage since 2013. In her answer/cross-petition, the Respondent admitted desertion and also prayed for the dissolution of the marriage. Section 15(2)(e) of the Matrimonial Causes Act (MCA) which is the law applicable in the circumstance of this case provides that a marriage is disserted when couple live apart for a continuous period of 2 years immediately preceding the presentation of the petition.

The counsel went on to submit that desertion is a proof that a marriage has broken down irretrievably. In the instant case, evidence shows that parties to this suit deserted the marriage since the year 2013 and have remained so even till the time of this address. Before this petition was presented, it is very clear that the marriage had been deserted for about 4 years which is a period above the 2 years provided in the above cited law.

It is submitted that circumstance exists in this case to show that the marriage has broken down irretrievably on ground of desertion which justifies dissolution of the marriage in question.

Arguing issue 2, it is submitted that the Petitioner brought a motion to amend his relief 2 so as to have the custody of the only child of the marriage. The Respondent is objecting to it on the ground of provision in Order VIII(1)(2) of the Matrimonial Causes Rules 1983 and Section 114 of the MCA. The counsel is of the view that it can be granted as the Respondent does not lose anything if it is granted. Granting the application is in line with the rule on fair-hearing as it is trite law that before judgment, a party to a suit can amend reliefs sought in line with evidence given. Interestingly, evidence had not been given in this suit when the application for the amendment was made.

It is submitted that the said objection is misconceived. The amendment sought here is not instituting a new proceedings on custody. Custody is part of the prayers in petitioner’s earlier reliefs sought and not being asked for the first time in this application. What is being sought to be amended is the nature of the custody.

Though without conceding, Order XXI Rules I, 2 and 3 of the MCR also provides that this court can relieve the petitioner from the consequences of non-compliance with the rules of this proceeding. It also gives this court the power to dispense with the need for compliance by a party with the provisions of this rule if the court deems fit and that non compliance with the rules of this proceeding shall not render this proceeding void. The court is urged to hold so.

On issue 3, according to the counsel, the Petitioner gave evidence on the reasons why the custody of the child should go to him. This is against Respondent’s claim in her final address that the Petitioner did not furnish the court of such. Referred to evidence for consideration that custody of the only child of the marriage be given the Petitioner. Also relied on OBAJIMI V OBAJIMI (2013) 3 SMC 254

On issue 4, according to the Petitioner, Respondent testified that the Petitioner has no work and cannot afford an accommodation of his own but lives with his in-law in Lagos. She further testified that she lives in 1 bedroom flat in Abuja and pays rent and child’s school fees. Ironically, this is an acclamation that she is more financially capable of taking care of the child. Having alleged that the petitioner is very poor, yet, she still wants the petitioner to be solely responsible for the maintenance of the child, payment to her of N100,000 monthly and N2 million etc. From the evidence of parties at trial, it is hereby submitted that both parties are capable of maintaining the child. Therefore, since the child belongs to both parents, it will be just that both parties contribute to the maintenance of the child.

On issue 5, the Petitioner submitted that in relief 4, the Respondent is asking for N100, 000 as a perpetual monthly maintenance allowance from the date of judgment to an indefinite date. In her evidence, she did not give reasons why she should earn such an amount every month from the Petitioner. Ironically, the Respondent had already testified that she has money more than the Petitioner. Therefore, that prayer is respectfully malicious. For a court to make award of such nature, there should be reasons for it. This is lacking in the instant case and the court is urged to hold so in this case.

On the N2 million hospital bill, the Petitioner stated that he took care of the medical treatment of the child. This is contained in paragraph 12 of Petitioner’s written deposition. This claim was not controverted during cross examination. Instead, during cross-examination the Petitioner also stated how he paid the medical bills of the child. On her own part, the Respondent failed to show how she raised money and paid the said medical bills. She did not even tender the bill. It is trite law that any evidence withheld is going to be against the party withholding it. Therefore, that arm of the relief is bogus, unsubstantiated and is not sustained by evidence and therefore not proved.

In conclusion it is submitted that from the evidence in this case, it is clear that the marriage ought to be dissolved and also the reliefs of the Petitioner granted and the court is urged to hold accordingly.

RESPONDENT’S ADDRESS

The Respondent also filed address and formulated issues for determination:

Whether the court can grant a petitioner leave to amend his petition to include a claim for the custody of a child.
Whether the marriage between the petitioner and the Respondent has broken town irretrievably.
Whether in the best interest of the only child of the marriage custody of the child ought to be given to the Respondent cross petitioner.
Whether in the circumstance of this petition the petitioner ought to provide for the maintenance of the only child of the marriage.

On issue 1, it is submitted that by Order VIII (1) (2) Matrimonial Causes Rules 1983 An amendment shall not be made to a petition or answer if the amendment would have the effect of instituting proceedings of a kind referred to in paragraph C of the definition of Matrimonial cause. Section 114 of the Matrimonial Causes Act defines Matrimonial Cause in paragraph C to mean ”Proceedings with respect to the maintenance of a party to the proceedings. settlements, damages in respect of adultery. The custody or guardianship of infant children of the marriage or the maintenance/welfare advancement or education of children of the marriage being proceedings in relation to concurrent pending or completed proceedings of a kind referred in paragraph (a) or (b) of this subsection including proceedings of such a kind pending at or completed before the commencement of this Act”

In the instant case, the petitioner is seeking an order of amendment to enable him ask for the custody of the infant child of the marriage. By virtue of Order VIII of the Matrimonial causes Rules this Honourable Court does not have power to grant such application. As the rules clearly prohibits the amendment of proceedings to include custody of an infant.

On issue 2, it is submitted that by section 15(1) and 2(e) of the Matrimonial Causes Act a marriage is deemed to have broken down irretrievably if 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.

From the evidence led by both parties in the instant case, the parties have lived apart from 2013 till 2017 when the petitioner initiated the suit thus they have lived apart for more than two years immediately preceding the petition and the Respondent consents to the grant of a decree of dissolution of the marriage having filed a cross petition seeking also for the dissolution of the marriage.

On issue 3, it is submitted that where in any proceedings before any court. the custody or upbringing of a minor is in question/ the court in deciding that question must regard the welfare of the minor as the first and paramount consideration whether from any point of view the claim of the father in respect of such custody or upbringing is superior to that of the mother or the claim of the mother is superior to that of the father.

It is submitted that the welfare of the minor although the first and paramount consideration is not the sole consideration and the conduct of the parties is a matter to be taken into account. OBAJIMI Vs OBAJIMI (2013)3 SMC 254

According to the counsel both parties to this petition admit the following :(1) That since the separation the only child of the marriage has been in the custody of the Respondent. (2) The petitioner has not provided any funds for the upkeep of the child since their separation. (3) The petitioner has not seen the child since the separation save when the child was brought to the court by the Respondent.

It is also the contention of the Respondent she gave evidence of her place of work, where she lives and pays rent, payment of school fees of the child of the marriage, her account statement with diamond bank and that the petitioner has remarried to another woman Ezinne Ogazi. According to the counsel, these facts were uncontroverted because the petitioner did not deny them in his reply to the Respondent’s answer to the petition dated 15/2/2018 consequently it is deemed that he has admitted them. And these facts were backed with exhibits tendered in court

It is submitted that in consequence of the above, it is clear that it will be in the best interest of the child that custody is given to the Respondent and the care of a child, the courts have held that it is better for the child to be with his maternal mother who is willing and able to take care of him rather than living the child with a step mother. See AKINBUWA Vs AKINBUWA (2002) 1 SMC 1

It is submitted that the petitioner did not provide any evidence before this court of his proposal on how he will take care of his child rather he gave contradictory evidence of what accommodation he has in one breath he states that he has a family house of 2 duplex in his village see paragraph 5 of his written deposition under cross examination on 11/6/2018 he says it is a bungalow. He admits that he has not made any provision for his son’s upkeep nor has he seen his son since he separated from his wife.

It is further argued that when the Petitioner initiated this suit he clearly stated that the custody of the child should go to the Respondent, it was only as an after taught that he is now seeking to amend his petition to include custody of the child.

It is submitted that the child’s emotional state will be affected adversely if he is suddenly handed over to the petitioner who has not seen or made provision for his upkeep for the past 4 years.

The court is urged to grant custody of the child to the Respondent and allow the petitioner access to the child. ‘

On issue 4, according to the counsel, in the instant case the Respondent has only requested that the petitioner pay the school fees of his child and a maintenance allowance of N100, 000 (One Hundred Thousand Naira) per month. This is a most reasonable request taking into consideration that when the parties were living together the petitioner provided accommodation, paid school fees and provided funds for feeding, these are basic necessities of a family. Christiana EHIGIATOR Vs SOLOMON EHIGIATOR (1966) NWLR (Pt .372) at page 277; AKINBUWA Vs AKINBUWA (2001)1 SMC 1 at page 21.

According to the Respondent, the petitioner also under cross-examination admitted that he should provide funds for the upkeep of his son and said that he is willing to do so. That being the case, the court is urged to grant the wish of the petitioner and order that he pay the school fees of his son and provide N100, 000 (One Hundred Thousand Naira) monthly for his upkeep.

In conclusion it is submitted that the Respondent/cross petitioner has in her evidence presented before this court been able to prove her case by presenting uncontroverted evidence of how she has been providing for the upkeep of the child of the marriage by providing accommodation, feeding and schooling. On the other hand the petitioner has provided little or no evidence of how he intends to accommodate the child, feed and educate the child.

We most humbly therefore urge my lord to grant the claims in the Respondent’s cross petition and dismiss the motion for amendment.

RESOLUTION OF MATTER

The Petitioner filed Petition to dissolve his marriage with the Respondent. On the service of same on the Respondent, the Respondent filed a Cross Petition for the dissolution of the marriage.

In this part of the world the underlying premise is that marriages must be encouraged, put together, and held together. Where the Petitioner fails to so prove the petition the court will refuse the relief and it will be of no moment that the divorce is unopposed. See NANNA vs. NANNA (2006) 3 NWLR (PT 966) 1. In OGUNTOYINBO v. OGUNTOYINBO (2017) LPELR-42174(CA) the court stated:

“… it will be in the interest of society, that divorce is not granted unless the Court is fully satisfied upon unassailable facts that its grant is the only remedy to the marriage. In other words, the jurisdiction of the Court to dissolve a marriage is one which should not be readily applied, because such jurisdiction involves the status of the parties. Accordingly, public interest demands that the marriage bond should not be set aside without strict proof of the grounds alleged or without painstaking and strict judicial enquiry.”

The standard of prove as required under the Act by section 82 (1) is stated thus:

“For the purposes of this Act, a matter of fact shall be taken to be proved if it is established to the reasonable satisfaction of the court.”

The Petitioner still needs to give evidence and prove his case to the satisfaction of the court. In OMOTUNDE V. OMOTUNDE (2001) 9 NWLR (PT.718)525 the Court held:

“In the instant appeal the averments in the petition, and the answer – and the admissions appearing therein cannot be substituted for evidence. More particularly as section 44(3) of the Matrimonial Causes Act stipulates that:-“The court shall not grant a decree of dissolution of marriage without receiving evidence by the petitioner in support of the petition”. The petitioner has to give evidence while the court will not belabour the issue on the facts already admitted by the parties which in law need no further proof.” Per ADEKEYE, J.C.A. (Pp. 43-44, paras. A-G)

It may be that in other civil proceeding, failure to deny a fact may be taken as admitting the fact it is not so in a matrimonial proceedings. Thus in BAKARE v. BAKARE (2016) LPELR-41344(CA) the court stated:

“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 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.”Per ABIRIYI, J.C.A. (Pp. 9-10, Paras. F-A) –

I believe, insisting on evidence and proof is the only way to prevent collusion. So evidence even if uncontroverted and unchallenged, still has to be evaluated by the court to see if it is credible enough to sustain the claim. See OGUNDIPE VS. A-G KWARA (1993) 2 NWLR (PT 313) 558; NEKA B.B.B. MANUFACTURING CO. LTD. VS. ACB LTD (2004) 15 WRN 1; BUHARI VS. OBASANJO (2005|) 8 MJSC 1

Matrimonial Causes Act Chapter M 7 Laws of the Federation of Nigeria by section 15(2) (a) – (h) provide the facts the existence of which any them is an indication that the marriage has broken down irretrievably. It provides:

(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.

(3) For the purpose of subsection (2) (e) and (f) of this section the parties to a marriage shall be treated as living apart unless they are living with each other in the same household.

What stands out from the evidence of parties in this Petition is desertion. In ANIOKE v. ANIOKE (2011) LPELR-3774(CA) the court stated:

“Thus, to establish the allegation of desertion, a petitioner must establish:

(a) Physical separation.

(b) Avowed or manifest intention to remain separated on a permanent basis.

Absence of consent from the other spouse.

Absence of any good, just cause or justification.

It is to be noted also, that the law gives recognition to two types of desertion, namely, simple desertion and constructive desertion. In the former, it is the absentee spouse who has abandoned the matrimonial ship and abdicated responsibility for requisite duties, while in the latter, it is the spouse who remains aboard the matrimonial ship who is in desertion, in that the said spouse has by his or her conduct expelled the other.” Per Oredola, J.C.A. (Pp.27-28, Paras.D-A)

The Petitioner is right when he submitted that Section 15(2)(e) of the Matrimonial Causes Act (MCA) which is the law applicable in the circumstance of this case provides that a marriage is disserted when couples live apart for a continuous period of 2 years immediately preceding the presentation of the petition. And that in the instant case, evidence shows that parties to this suit deserted the marriage since the year 2013 and have remained so even till the time of this address. Before this petition was presented, it is very clear that the marriage had been deserted for about 4 years which is a period above the 2 years provided in the above cited law.

The Parties have shown that there is a physical separation, and there is a vowed intention to remain separated and it is without each other’s consent.

Whenever the court finds the negation of the relation to live together which is the fundamentals of a matrimonial tie; unqualified repudiation of marital obligations, i.e. putting an end to the marital togetherness which is indeed the kernel of marriage; the court will be left with no option but find that the marriage has broken down irretrievably. I so find in this case.

The Petitioner initially asked that the custody of the only surviving child of the marriage be given to the Respondent/Cross Petitioner but later filed a motion to amend it by asking that the custody of the child be given to him. The Respondent/Cross Petitioner has in his Cross-Petition asked for the custody of the child. The Respondent/Cross –Petitioner opposed the sought amendment relying on order VII (1)(2) Matrimonial Causes Rules 1983 (MCR) and Section 114 of the Matrimonial Causes (part C) and the petition.

I agree with the Petitioner when he submitted that the amendment is not intended to introduce custody relief as a new and fresh relief. It is only an amendment to whom custody should be given.

Furthermore, in my view order VII (1) (2) Matrimonial Causes Rules 1983 (MCR), appears to be in collision path with some provisions of the same Rules as it relates to custody. In MRS. HELEN NWOSU v. HON. DR. CHIMA NWOSU (2011) LPELR-4654(CA) the court considered Order XIV R 22 (1) of Matrimonial Causes which provides:

“22(1) Where, after proceedings for principal relief have been instituted a dispute arises with respect to the custody, guardianship, welfare, advancement or education, as the case may be, of a child pending the disposal of the proceedings, the Petitioner or Respondents may make application to the court for an order with respect to the custody, guardianship, welfare, advancement or education, as the case may be, of the child pending the disposal of the proceedings.

And concluded that:

The implication of that rule is that the ancillary relief of custody can be sought after principal relief of dissolution of marriage had been first instituted” Per OGUNWUMIJU, J.C.A.(P. 25, Paras B-E)

See also EGBUCHE V. EGBUCHE (2015) LPELR-25868(CA)

Now if custody of a child can be sought after the principal relief of dissolution of marriage has been instituted then it has the effect of an amendment.

Irrespective of who asked for the custody of the child of the marriage, in any matter relating to the guardianship and custody of children the interest and welfare of the child shall be the first paramount consideration, see OKWUEZE V. OKWUEZE (1989) NWLR (PT.109) 321. This principle also found expression in Article 3 of the CONVENTION OF THE RIGHTS OF THE CHILD (CRC) thus:

“In all actions concerning children, whether undertaken by public, or private social welfare institutions, courts of law, administrative authorities, or legislative bodies, the best interests of the child shall be a primary consideration.’ This has been domesticated by the Child Right Act and adopted as law by various States of Nigeria.

See also Section 1 of Child Right Law No 6 2004 of Imo State

In awarding the custody of a child, the conditions to be considered in view of the peculiar circumstance of each case are said to be

The degree of familiarity of the child with each of the parents (parties).
The amount of affection by the child for each of the parents and vice versa.
The respective income of the parties.
Education of the child.
The fact that one of the parties now lives with a third party as either man or woman;
The fact that young children should as far as practicable, live and grow up together;
The fact that one of the parents is still young and may wish to marry and the child may become an impediment and
The fact that in the case of children of tender age, custody should normally be awarded to the mother unless other considerations make it undesirable.

See SECTION 71(1) OF THE MATRIMONIAL CAUSES ACT; ELUWA V. ELUWA (2013) LPELR-22120(CA); ODOGWU V. ODOGWU (1992) 2 NWLR (225) 539; ALABI VS. ALABI (2008) ALL FWLR (PART 418) 245; NKIRU JOY ODUCHE v. OBIEFUNA NDUBUISI ODUCHE (2005) LPELR-5976(CA)

The importance of custody of a child in a broken marriage and the need for through investigation is emphasized in the case of OJO V. OJO (1969) LPELR-25437(SC) where it is stated:

“The matter of the custody of the children of a broken marriage is important to the parties as well as to the community and not only should this be argued in court but Judges should in appropriate cases retire into chambers and discuss this fully with Counsel on both sides and their clients before making a final order in court. It should not be assumed that the successful party must have custody of the children or that he is the proper party to whom the care of the children of the marriage should be entrusted.”

So any order granting custody of child must be after due consideration of evidence in a proceeding as this. The presumption is that the mother will usually have custody of children. This presumption is however rebuttable and can be impeached if, during court proceedings, for instance, it can be shown that e. g the mother is immoral, she has an infectious disease, she suffers insanity or is cruel to the child etc. The Supreme Court in ODOGWU V ODOGWU (1992) 2 NWLR (pt. 225) 539, (1992) 2 SCNJ 357 held:-

“If the parents are separated and the child is of tender age, it is presumed that the child will be happier with the mother and no order will be made against this presumption unless it is abundantly clear the contrary is the situation e.g immorality of the mother, infectious diseases on the mother, insanity and or her cruelty to the child. See also OJO V OJO (1969) 1ALL NLR 434, OKWUEZE V OKWUEZE, (1989)3 NWLR (pt109) page 321 at 341 paragraph D-E

The court went further to state per Belgore JSC held thus:

“Welfare of child is not the material provisions in the house -good clothes, food, air conditioners, television, all gadgets normally associated with the middle class, – it is more of the happiness of the child and his psychological development.

While it is good a child is brought up by complementary care of the two parents living happily together, it is psychologically detrimental to his welfare and ultimate happiness and psychological development if maternal care, available, is denied him.”

Now considering the evidence of the parties and the nature of the business of the Petitioner even when the Petitioner and Respondent were still together, it is obvious that the degree of familiarity of the child with the Respondent is higher. According to the Petitioner, it was during one of his business engagements at Umuahia that the Respondent left the house. It therefore follows that the affection of the child will tilt towards the Respondent naturally.

I do not subscribe to the argument of the society being patrilineal and not a matrilineal society. To uphold this argument will go contrary to the constitutional and other national and international provisions against discrimination. S.42(1) of the 1999 Constitution provides as follows:-

“42 (1) (a) A citizen of Nigeria of a particular community, ethnic group, place of origin, sex, religion or political opinion shall not, by reason only that he is such a person –

(a) Be subjected either expressly by, or in the practical application of, any law in force in Nigeria or any executive or administrative action of the government, to disabilities or restrictions to which citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religious or political opinions are not made subject. (Underlining mine)

Article 18(3) of The African Charter on the Human and Peoples Right ratified by Cap A9 Laws of the Federation 1990 provides that:

“The State shall ensure the elimination of every discrimination against women and also ensure the protection of the rights of the women and the child as stipulated in international declarations and conventions.”

The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), adopted in 1979 by the UN General Assembly, defines discrimination against women as

“…any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.”

I consider it discriminatory to give custody of a child to a man on the bases of the society being patrilineal society.

The Respondent/Cross Petitioner is the mother of Master Chidiebere Louis Opara born on 22/4/11. What a coincidence that his month of birth is the month his custody by either of his parents is determined. I had the opportunity of seeing the child during one of the proceedings. He looked well kept. He has not missed school. In other words the school fees had always been paid.

In view of the evidence led and exhibits before me, I am of the firm opinion that Master Chidiebere Louis Opara would be happier and better taken care of if left in the custody of his mother. I therefore grant custody of Master Chidiebere Louis Opara to his mother, the Respondent/Cross Petitioner.

On the question of maintenance, Section 70(1) & (3) of the Matrimonial Causes Act provides as follows:

“(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.

………….

(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.”

The evidence before the court that has something to do with means and earning capacity of the parties is hereunder reproduced:

The Respondent:

“Since the marriage my husband never provided a proper accommodation for me, we lived in one room in the village house built by my father in-law together with the parents and siblings of my husband”

“When I got married to my husband he had no hand work and we lived in one room in his father’s house in the village and till date my husband has no handwork, he presently lives with his in-law at Lagos, he cannot afford an accommodation of his own and he is not in the business of clearing and forwarding.

On the other side the Petitioner

I am presently living alone. I said I am in the business of clearing and forwarding. I know what a bill of lading is.

In our business I cannot tell you that I make 100,000 or any amount. It is what comes that we have.

In relief 4, the Respondent/Cross Petitioner demanded that the petitioner shall pay and give the Respondent/Cross Petitioner a subsidized monthly maintenance allowance of N100, 000 (One Hundred Thousand Naira) from the date of judgment in this case.

It is clear from the provisions of the Act that court has powers to make an order for maintenance of a party to marriage having regard to the means, earning capacity and conduct of the parties to the marriage and all other relevant circumstances. In IGWEMOH V. IGWEMOH (2014) LPELR-46807(CA) where it is stated:

“Order for maintenance, like all judicial orders, must not be arbitrary. Rather, it should be made judicially and judiciously. It must be based on empirical evidence and established rules or principles of law. From cases decided on Section 70(1) of the Matrimonial Causes Act (MCA) , there are clear templates for the exercise of a Courts discretion in assessment and award of maintenance. By these templates, the Court must always have regards to the means, earning capacity of the parties in marriage and their conduct. See Olu-Ibukun v. Olu-Ibukun (1974) NSCC 91; Nanna v. Nanna (2006) 3 NWLR (Pt. 966) 1; Akinboni v. Akinboni (2002) FWLR (Pt. 126) 926, (2002) 5 NWLR (Pt. 761) 564 at 582″

Many other decisions have added as fact to be considered the question of whether there are children in the marriage. In ODUSOTE v. ODUSOTE (2011) LPELR-9056(CA) it is stated:

“In the case of HAYES v. HAYES (2000) 3 NWLR (648) 276 at 294, the principles guiding the assessment of maintenance in matrimonial proceedings were said to include:- (a) the stations in life of the parties and their life styles; (b) their respective means; (c)the conduct of the parties; (d) existence or non existence of a child/children of the marriage.” Per GARBA, J.C.A (P. 32, paras. E-G)

See also MUELLER v. MUELLER(2005) LPELR-12687(CA)

In NANNA v. NANNA (2005) LPELR-7485(CA); (2006) 3 NWLR (Pt.966)1 it is stated:

“A man has a common law duty to maintain his wife and his children and such a wife and child or children then have a right to be so maintained. The right of a wife and child to maintenance is not contractual in nature. The husband is obliged to maintain his wife and child, and may by law be compelled to find them necessaries, as meat, drink, clothes, et cetera, suitable to the husband’s degree, estate or circumstance.” Per ABBA AJI, J.C.A (P. 50, paras. D-F)

Accepted that the man has the common law duty to maintain his wife, order for the maintenance of a wife is proposed to provide for the basic needs of the wife and to restore her as near as possible to the status she formerly enjoyed as wife of the Petitioner. It does not serve as a punishment for the husband nor serve as condemnation of the husband’s conduct. Where the wife is capable of providing these basic needs for herself, the order should not be made for making sake. It will also not be made where they are of the same means. I have noted the evidence of the Respondent of their state while together. See ENWEZOR V. ENWEZOR & ANOR (2012) LPELR-8544(CA), MUELLER V. MUELLER (2005) LPELR-12687(CA); LAWRENCE OLU-IBUKUN & ANOR V. ADESOLA A. OLU-IBUKUN (1974) LPELR-2606(SC); (1974) ALL N.L.R 463; (1974) 2 S.C. 35

The Respondent/Cross Petitioner from her evidence is not impoverished. She is gainfully engaged. I do not think it is just in the circumstances to grant the relief 4 of the Respondent. Same is refused.

And regarding relief 5, the Respondent/Cross Petitioner has requested for Two Million Naira being the cost of medical expenses of the late child of the marriage. In view of the evidence of the Petitioner and the absence of documentary evidence from the Respondent/Cross Petitioner to support his claims about the expenses, I am of the opinion that the Respondent did not prove that she is entitled to relief 5. Relief 5 is refused.

What I want to state, as an aside, is that parents should resist every attempt to interfere in the marriage life of their children. It does more harm than good in building loving and united young homes. There is need to remind the parents of what is written in the scriptures:

“Have you not read,” he said, “that he who made them in the beginning made them male and female, and said, For this cause shall a man leave his father and mother, and shall cleave to his wife; and the two shall become one flesh? So that they are no more two, but one flesh. What therefore God hath joined together, let not man put asunder.” Mark 10:9.

Both parties in this petition made reference to some unacceptable actions from the parents.

In conclusion, judgment is entered in the following terms:

A decree nisi for the dissolution of the marriage contracted on the 27^th of December 2010 between the petitioner, Tobechi Obianuju Opara and Ugochi Pamela Adim is hereby granted on the cross petition of the Respondent.
The custody of the only surviving child of the marriage, Master Chidiebere Louis Opara is granted to the Respondent/Cross Petitioner.
The Petitioner shall have access to the child unhindered more particularly during holidays and school breaks.
The Petitioner shall be responsible for the school fees and other educational requirements of the child.

I so hold

I.M. NJAKA

Judge

9-4-19

Appearances:

Emperor Iwuala Esq. for the Petitioner

J.O. Kelechi- Ihejirika Esq. for the Respondent/Cross Petitioner

BEFORE HIS LORDSHIP: – HON. JUSTICE I. M. NJAKA – SUIT NO: HOW/132D/ 2023 KELECHI SOLOMON EZEKA V CHIOMA NNENNA EZEKA -Order V Rule 10(1) of the Matrimonial Causes Rules 1983

Divorce-Application to set aside service-Service through a 3rd party- CHIDIEBERE CHUKWUEMEKA IWUNZE AND UGOCHI CYNTHIA IWUNZE (NEE MGBEIKE)-delivered on 4-11-19 by Hon. Justice Innocent M. Njaka