IN THE HIGH COURT OF IMO STATE OF NIGERIA
IN THE MBAISE JUDICIAL DIVISION
HOLDEN AT AHIAZU MBAISE
ON, TUESDAY, 3RD OCTOBER 2017.
BEFORE HIS LORDSHIP: – HON. JUSTICE I.M.NJAKA.
SUIT NO HAM/5D/2016
ETHEL UZUAGHA DURU PETITIONER
AND
MAGINUS UGONNA DURU RESPONDENT
JUDGMENT
By NOTICE OF PETITION dated 8th day November, 2016 and filed same day the Petitioner pray
1. AN ORDER dissolving the marriage between the Petitioner and the Respondent contracted on 28/01/1998
2. AN ORDER granting custody of the two children of the marriage to the Petitioner.
The dissolution is sought on the following
a. The Respondent since the marriage has behaved in such a way that the Petitioner cannot reasonably be expected to live with the Respondent, and
b. The parties to the marriage have lived apart for a continuous period of over thirteen years immediately preceding the presentation of the petition and
c. The Respondent has deserted the Petitioner for continuous period of more than 1 year immediately preceding this petition.
FACTS relied upon to anchor the grounds:
a. The Petitioner and the Respondent were living as a couple in Florence Italy. The parties had quarrels due to the behavior of the Respondent as Respondent always beat up the Petitioner.
b. Sometime in March, 2003 both parties returned to Nigeria and stayed in Ojota Lagos, place where the Respondent relations lived.
c. Their return to Lagos was to see if the issues between the parties will be resolved, but rather than that the intolerable behavior of the Respondent increased.
d. The Petitioner visited the village and by the time she returned to Lagos the Respondent has locked her out with her children. He instructed his relations not to talk to much nor accommodate the Petitioner.
e. The Petitioner slept outside with her children and later returned to her village.
f. She could neither get her passport, nor her belongings. She equally lost that of her children as all these seized by the Respondent.
g. She on her own struggled to travel back to Italy with her children when she found out that the respondent had gone back to Italy.
h. The Respondent on finding out that the petitioner has made it back to Italy, left Italy and came back to Nigeria and is now remarried.
i. The Respondent has since then (2004) neither care for the petitioner nor his children.
The Petitioner opened her case on the 3rd April 2017. She testified as PW1. She testified as follows:
My name is Ethel Uzoaga Duru, I am from Ezeoke Nsu in Ihime Mbano L.G.A. The Respondent is my husband. Prior to my marriage I was answering Nwachukwu as my surname. We got married in 1989 at Owerri Municipal Council Marriage Registry. After marriage, we left for Italy from 1998-2003.
At Italy my husband character changed, he became a drunk. He comes back drunk and beats me up. Most of the time, he will lock me out of the house. When all these things were happening, I called his relations and informed them. They asked us to come back to Nigeria. We were able to come back to Nigeria in 2003-2004.
In Nigeria we stayed in his brother’s house in Ojota Lagos. At Ojota all that his brothers did to change him and to become a good person failed. They more they tried the more he became worse. At Ojota when all efforts failed, effort of the brothers, I travelled home to the village with my children. Millicent born in 2000 and Destiny was born in 2003.
After some days at the village I went back to Ojota but when I got to the house at Ojota, it happened that he has informed his brothers not to open the house for me. His brothers followed his instructions and did not open the house for me. That night I and my children slept under the bridge thereafter I left for village again.
I did not leave the house with anything, he seized my documents, clothes, children wears etc. As I got to the village, I began to struggle on how to get back to Italy. Eventually I went back to Italy with my two children.
When my husband saw me at Italy he left me at Italy to return to Nigeria to marry another wife. Since 2004 till date he has not asked after the children and has not provided for me and the children, he has not taken care of any body. Millicent Duru is in High School, she is in Italy. Destiny is in secondary school also in Italy. I am the one taking care of the children since 2004.
I want the custody of the children, I want to take care of the children, I will train them, when they are grown, they may decide to go back to their father. Millicent is 16 years while destiny is 14 years.
At the marriage registry we were issued with a marriage certificate. The original is with the respondent, he seized all my documents, what I have is the photocopy of the marriage certificate. Yes, that is the photocopy of the marriage certificate.”
The marriage certificate is admitted in evidence and marked exhibit PW1
Several adjournments were made and hearing notices served on the Respondent to enable him appear and cross examination. The one who states his case first seems right, until the other comes and examines him. See Proverbs 18:17. The Respondent neither came to cross examine the Petitioner nor did he file any processes.
At the close of her case the Petitioner’s counsel filed final written address on the 19th June 2017. This was equally served on the Respondent. He equally did not react to the Written Address of the Petitioner. The final written address was adopted on the 3rd July 2017.
The Petitioner formulated a sole issue for determination:
“Whether the petitioner has proved her case to warrant the honourable court grant her reliefs sought”.
It is submitted that from the totality of evidence before this court, the Petitioner has made out a cogent reason why the court ought to grant her, her reliefs.
It is submitted that the marriage has broken down irretrievably and the Respondent has abandoned the petitioner which are grounds clearly spelt out under the Matrimonial causes Act cap 220 LFN 1990 for the dissolution of the marriage between a Petitioner and a Respondent .
It is submitted that the petitioner has also demonstrated that she is financially strong to take care of the children of the marriage who are already overseas studying at the instance of the petitioner.
In conclusion, the court is urged to resolve this sole issue in favour of the petitioner.
Now having examined the grounds and facts as revealed through the evidence of the Petitioner the issue is:
“Whether the Petitioner has proved that her marriage with the Respondent has broken down irretrievably as to entitle her to the reliefs sought?
It is obvious that the Respondent is not opposed to the dissolution of the marriage as he has failed refused or neglected to file Reply or put up appearance. It is trite that allegations of fact in a statement of claim if not denied expressly or by implication by the defense, shall be deemed to be indirectly admitted. See ABN (NIG.) LTD. V AKUBUEZE (1997) 6 NWLR (PART 509) 374 AT 395 and ADEYERI V OKOBI (1997) 6 NWLR (PART 510) 534 AT 547, AJIDAHUN V. AJIDAHUN (2000) 1 NWLR (PT.654)605
However, the burden of proof in matrimonial causes, as stated in Section 15(2) of the Matrimonial Causes Act, is, unlike in ordinary civil proceedings, to the satisfaction of the Court. 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.
In this part of the world the underlying premise is that marriages must be encouraged, put together, and held together. Hence, despite the fact that the Respondent did not file an answer and did not cross examine the Petitioner, the onus is still on the Petitioner to prove one or two of the grounds provided for in the Matrimonial Causes Act for the court to hold that a marriage has broken down irretrievably. Where he or she fails to so prove 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
Furthermore, 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
15. (1) A petition under this Act 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.
(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.
In her effort to prove one or two grounds as stipulated in Section 15(2) (a – h) of the Matrimonial Causes Act, the Petitioner stated:
“When my husband saw me at Italy he left me at Italy to return to Nigeria to marry another wife. Since 2004 till date he has not asked after the children and has not provided for me and the children, he has not taken care of anybody”.
From this piece of evidence, it is clear that the Respondent has deserted the Petitioner as a result of which the parties have lived apart from each other for at least a period of 2 or 3years. Desertion within the meaning of section 15 (2) (e) of the Act must be one where any of the spouse abandons and forsakes without any justification, thus renouncing its responsibilities and evading its duties. NANNA vs. NANNA (2006) 3 NWLR (PT 966) 1.
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 asked for the custody of the two children 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. In awarding the custody of a child, the conditions to be considered in view of the peculiar circumstance of each case are: a) The degree of familiarity of the child with each of the parents (parties). b) The amount of affection by the child for each of the parents and vice versa. c) The respective income of the parties. d) Education of the child. e) The fact that one of the parties now lives with a third party as either man or woman; f) the fact that young children should as far as practicable, live and grow up together; g) the fact that one of the parents is still young and may wish to marry and the child may become an impediment and h) 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
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 Section 1 of Child Right Law No 6 2004 of Imo State
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 helds:-
“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 contrary has not been proved in this case. And in fact the Respondent by failing to file an answer or cross examine the petitioner is in agreement that custody of these children should be given to the petitioner.
In the whole, I find that the Petitioner has proved that the marriage has broken down irretrievably on the ground that the Respondent has deserted the Petitioner cannot reasonably be expected to live with the Respondent. Equally the Petitioner is entitled to the custody of Children.
It is hereby ordered:
a. That the marriage between the Petitioner and the Respondent is dissolved. The Decree Nisi now being pronounced shall be absolute at the expiration of three months.
b. The custody of the two children of the marriage is given to the Petitioner
I so hold.
I. M. NJAKA
JUDGE
3/10/17
Appearnces:
M.N.Ogu Esq. for Petitioner
No appearance for the Respondent