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/6D/2016
BETWEEN
OKEKE CHRISTOPHER IHEANYICHUKWU PETITIONER
AND
RITA OKEKE RESPONDENT
JUDGMENT
By Notice of Petition dated 25th day of November 2016 and filed same day the Petitioner seeks for a decree of dissolution of marriage between the Petitioner and the Respondent on the ground that the marriage between the Petitioner and the Respondent has broken down irretrievably.
The grounds on which the Petitioner wants the court to fine that the marriage has broken down irretrievably are:
1. The Petitioner and the Respondent have live apart for at least 4 years immediately preceding the presentation of this petition.
2. That since marriage, the Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with the Respondent.
3. There is no more love between the Petitioner and the Respondent.
4. The marriage between the Petitioner and the Respondent has broken down irretrievably.
The Notice of Petition was served on the Respondent on the 1st December 2016 but the Respondent did not put in appearance. She did not file any processes.
The Petitioner testified on 24/4/17 and stated:
My name is Christopher Ihianyichukwu Okeke, I am a trader, I live at Achara Obowu L.G.A Imo State. I know the respondent. She is my wife. I married her at Oluyole L.G.A marriage registry Ibadan Oyo State. The marriage is registered; I was issued with a marriage certificate that is the marriage certificate.
I was born on 25/9/76, I was born at Achara Obowo, and my wife was born on 20/9/78 at Umuariam Obowo L.G.A. My parents are of Achara Obowo L.G.A. I am here for the court to dissolve the marriage. I am no longer living with the Respondent. She is disobedient, she does not cook for me, disrespectful, and she does not care for me. She goes out and comes in at any time she wants. We do not cohabit again. She left the house since 1/8/12. I do not know where she went to and she did not tell me where she was going. Since she left, she has not communicated, we do not have a child, I want the court to dissolve the marriage.
The marriage certificate is admitted in evidence and marked exhibit PW1A
When the Petitioner closed his case the matter was adjourned to 8/5/17 for cross examination. Hearing notice was served on the Respondent to that effect. On that day on her absence, she was foreclosed from cross examining the Petitioner and matter adjourned to 22/5/17 for her to open her defence. Hearing notice was also ordered and was served on her
On the said 22/5/17, she was still not in court; she was foreclosed and matter adjourned to 3/7/17 for address.
On 3/7/17 the Petitioner indicated he was only able to file his written address in the morning that day and so it has not been served on the Respondent. Consequently the matter was adjourned to 11/7/2017 to enable the Final Written address be served on the Respondent. The record shows the Final written address was served on the 7/7/2017 on the Respondent
The counsel to the Petitioner adopted his written address on the 11/7/17. In his written address the Petitioner formulated two issues via:
1. Whether in view of circumstances of this case, the court ought to make a decree of dissolution of marriage.
2. What is the effect of the failure of the Respondent to appear or make a representation in the proceedings.
On issue 1, it is submitted that from the facts before the court, that there is no more love and compatibility in the marriage between the parties and that it has broken down irretrievably need no divining. Form the evidence, the conduct of the Respondent by deserting the husband for more than 10 years clearly shows that the Respondent is no more interested in the marriage more so when she has moved on with her life by living with another man. Her desertion of the Petitioner and the matrimonial home for more than 5 years leaving the Petitioner in complete ignorance of her whereabouts speaks volumes of her aforementioned inclinations.
It is submitted that the foregoing shows as required by section 15 (1) of the Matrimonial causes Act (MCA) that the marriage has broken down irretrievably. The articles each of which constitutes irretrievable breakdown of marriage as laid down by section 15 (2) of the MCA which are satisfied and surpassed by the conditions existing between the parties in the instant case are:
15 (2)(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 before 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 before the presentation of the Petition and the Petitioner 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.
It is submitted that for the first issue, the court has unassailable grounds to dissolve the marriage between the parties and the court is urged to so resolve.
On issue 2, it is submitted that the Respondent was served with the notice of petition and the Petition accompanied with all the stipulated statutory processes and the bailiff of court who affected service deposed to an affidavit of service. The said affidavit discloses that service had been affected since 1/12/2016. The Registrar issued a Registrar’s certificate that the suit is ready for trial dated 15/3/2017 and notice setting down the suit for trial on 24/4/2017. Trial commenced on 24/4/2017 and the Respondent neither filed an answer to the Petition nor appeared nor otherwise made representation in the proceedings until the same terminated on 22/5/2017 and the matter was slated for address.
It is submitted that the Respondent was fully availed of the time to respond to the Petition and challenge the evidence by the Petitioner but choose to ignore the court and the proceedings.
It is submitted that it is law that pleading not denied and evidence not challenged or contradicted is deemed to have been admitted. When evidence is unchallenged the court ought to accept it in proof of the issue See CAPPA & D’ALBER To LTD v AKINTILO TILO (2003) 9 NWLR (PT 824) 49 Ratio 6 at P.71; Folorunso & anor v Shaloub (1994) 3 NWLR (Pt. 333) P. 413 at 433 Paras B-H, Alagbe v Abimbola (1978) 2 SC 39 at 40; G.S Pascutto (Trading as Com-Est) V Adecentro Nig Ltd (1997) 11 NWLR (Pt 529) 467 Ratio 11SC
It is submitted therefore that the failure of the Respondent to respond to the Petition and challenge or contradict the evidence led by the Petitioner need be taken by the court as admission of same by the Respondent. Further in respect of section 15(2) (e) of the MCA, it ought to be taken that the Respondent does not object to a decree of dissolution being granted
It is submitted that the court has been presented with facts relating to the contract of marriage between the parties, facts attesting to incompatibility and irretrievable break down of the marriage on which basis the Petitioner prays the court for its dissolution. It is noted that there is merit in the Petition. There is no collusion or connivance and the Respondent had no answer to the Petition nor challenged the evidence led by the Petitioner.
It is submitted that the Petitioner’s position that the marriage be dissolved is supported by both the statutory and judicial authorities set out above. In the circumstances the court is urged to grant a decree for the dissolution of the marriage between the parties as the demand of justice that will be just as the marriage has broken down irretrievably.
I have listened to evidence given by the Petitioner as well as the counsel in respect of the counsel’s written address; I am of the view that the issue for determination is:
“Whether the petitioner in the circumstance of this case is entitled to decree of dissolution of his marriage with the Respondent?”
The Respondent did not file Answer to the Petition. She did not put up appearance. However her failure to file an answer or put up appearance does not confer any exceptional advantage on the Petitioner. 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) –
The Matrimonial Causes Act provides grounds under the which the court may find that a marriage has broken down irretrievably. The Petitioner must prove at one of these grounds. In BAKARE v. BAKARE (supra) the court stated the law as follows:
“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 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 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.”Per ABIRIYI, J.C.A. (Pp. 7-9, Paras. E-E) –
Now the pleading before the Court is that:
“the date on which and the circumstances under which cohabitation between the Petitioner and the Respondent last ceased are as follows; on 1st of August, 2012, the Respondent without any reason left the matrimonial home for unknown destination. Since the 1st August, 2012, the Respondent deserted the matrimonial home hence the Petitioner and the Respondent had not cohabited again”
And giving evidence before the court the Petitioner stated:
“She left the house since 1/8/12. I do not know where she went to and she did not tell me where she was going. Since she left, she has not communicated…”
From the evidence before the court it does appear that the Petitioner’s case is hinged on section 15(2) (d) – (f) of the Matrimonial Causes Act which is:
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;
I hold that the Petitioner has proved to the satisfaction of the court that his marriage with the Petitioner has broken down irretrievably.
It is hereby ordered: 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.
I so hold.
I. M. NJAKA
JUDGE
3/10/17
Appearances:
Chief I.M. Kadurumba Esq with Eze Akwitti Esq. and HRH Eze I.O.A Ekeocha for the Petitioner.
No appearance for the Respondent.