Divorce Cases

Divorce- Filing another Petition after the first one was dismissed- Power of Court to make orders with respect to the right of either parent to the custody of the children

Admin Editor

IN THE HIGH COURT OF IMO STATE

IN THE AHIAZU MBAISE JUDICIAL DIVISION

HOLDEN AT HIGH COURT OF JUSTICE, AHIAZU MBAISE

ON THE 25TH DAY OF APRIL, 2017 

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

 SUIT NO.:- HAM/1D/2016

 

BETWEEN

MR VALENTINE CHIBUIKEM IHEASIRIM————————————————————————-PETITIONER 

AND

MRS. EBINIPRE IHEASIRIM —————————————————————————————–RESPONDENT

 

JUDGMENT

By Notice of Petition for Degree of Dissolution of Marriage filed on the 25th day of April, 2016 the Petitioner, Mr. Valentine Chibuikem Iheasirim, seeks the dissolution of the marriage between him and the Respondent, Mrs. Ebinipre Iheasirim.

The facts relied upon by the petitioner as constituting irretrievable breakdown of his marriage is as follows:

  1. The petitioner has lived apart from the respondent for a continuous period of at least three (3) years immediately preceding the presentation of this petition.
  2. When the behavior of the respondent became intolerable to the petitioner he moved out of the matrimonial home on the 22nd day of December, 2012 to another residence and has continued to live apart from the respondent from the date till date. The High Court of Imo State has found as a fact that the petitioner has lived apart from the respondent since 22/12/2012 till the date of the judgment in Suit No: HOW/6D/2014.

The Respondent filed Answer to Petition for Decree of Dissolution of Marriage dated 21/6/2016 and filed on 22/8/2016. But with the leave of court on 18-11-16 the Respondent amended her answer to the petition by Amended Answer to Petition for Decree of Dissolution of Marriage  dated 4/11/2016 but filed on 18/11/2016.

The petitioner filed a reply to the answer dated 12-10-17 which is a reply to the earlier answer. With the Respondent’s Amended Answer it seems the Petitioner Reply dated 12/10/2016 lost its punch.

The Petitioner opened his case and testified on 20-1-17 to the essence that he got married to the Respondent on 23/3/2000. The marriage was celebrated at Marriage Registry at Port Harcourt City Council, Moscow Road, Port Harcourt and was issued with a marriage certificate. They cohabited and cohabitation ceased on 22-12-12. The marriage yielded two children: Amanda Iheasirim, born on 5-12-2000, and Stephanie Iheasirim born on 6-7-2002.

He testified that he brought the petition because they have lived continuously apart for more than three years since he was forced out of the matrimonial home on 22-12-12 because of the Respondent’s incessant intolerable conduct. The marriage has broken down irretrievably and hope of coming back together is not there.

He further testified that there was a legal proceeding at Owerri High Court for the dissolution of the marriage which was on a different ground and facts. He testified that the children are in the custody of the Respondent, in line with the judgment in Suit No: HOW/6D/2014. He testified that his arrangement for the Respondent and the children is as contained in the compulsory conference report.

In the course of his testimony he tendered the following documents in evidence.

  1. The certified true copy of certificate of marriage between valentine Chibuikem Iheasirim and Ebenipre is admitted in evidence and marked exhibit PW1A.
  2. The certified true copy of the marriage certificate obtained from the High Court registrar Owerri is admitted in evidence and marked exhibit PW1B.
  3. The judgment of the court in suit no: HOW/6D/2014 is admitted in evidence and marked exhibit PW1C.
  4. The report of the compulsory conference is admitted in evidence and marked as exhibit PW1D.

Under cross examination, the Petitioner admitted he has two beautiful children. They are in the custody of the Respondent. He did file suit HOW/6D/2014. And that he concedes to the entire content of Exhibit PW1D

The Respondent did not call witness. Written addresses were filed and exchanged by the counsel.

The Petitioner in his address formulated two issues for determination to wit:

  1. Whether in view of the circumstances of this case the marriage between the Petitioner and the Respondent has broken down irretrievably by reason of the parties having lived apart continuously for a period of 3 (three) years immediately preceding the presentation of this petition.
  2. Whether the Honourable Court should exercise its discretion in favour of granting the relief sought.

The Petitioner opted to argue the two issues together. It is submitted that for the Petitioner to succeed in this action, it must be established both by pleadings and evidence, that the marriage between the petitioner and the respondent has broken down irretrievably for any of the facts or reasons enumerated in section 15(1) & (2) of the Matrimonial Causes Act 1970 Cap M7 Laws of the Federation of Nigeria, 2004. See  EKREBE V. EKREBE (1999) 3 NWLR (PT 596) PG 514 at 524 B-G

It is submitted that on page 3 of the Petition, paragraph 10(1) and paragraph 13 of the petition, the petitioner specifically pleaded that the marriage between him and the respondent has broken down irretrievably owing to the fact that he parties have lived apart continuously for a period of 3(three) years immediately preceding the presentation of this petition.

Apart from the bare and general traverse in paragraph 2 of the Amended Answer to the Petition, the Petitioner’s averments that the marriage has broken down irretrievably for the reason that the parties have lived apart continuously for a 3(three) years immediately preceding the presentation of the petition was not specifically traverse by the Respondent.

It is submitted that the petitioner, as PW1, testified in chief that he was forced by the unbearable conduct of the Respondent to leave the matrimonial home on 22/12/2012 and ever since then both himself and the Respondent have lived apart continuously for a period of more than 3 (three) years immediately preceding the presentation of the this petition.

This piece of evidence was not challenged or controverted under cross- examination. As such, the respondent is deemed to have admitted the same as true and the Honourable Court is enjoined to accept and act on the uncontradicted evidence. See GAJI V PAYE(2003) 8 NWLR(PT. 823) Pg 583 at 603-604 F-B, 611 A- B, OWNERS MV GONGOLA HOPE V. S.C NIG LTD(2007) 15 NWLR )PT. 1056) PG 189 AT 215 -216, OLUWADAMILOLA V. STATE (2010) 8 NWMLR (PT  1197) 565, AJIDAHUN V. AJIDAHUN (2000) 4 NWLR (PT 654) 605 AT 615 B.

It is further submitted that the Petitioner’s evidence that the marriage has broken down irretrievably and that there is no hope of the parties coming back together again, was equally not challenged by the Respondent. Instead the Respondent stated she is not adverse to the petition for dissolution of the marriage so long as the custody of the two children remains with her and the arrangement for her maintenance and welfare of the children contained in Exhibit PW1 D are carried out. In effect, there is no issue on the fact that the marriage has broken down irretrievably. See R.C.C NIG LTD V. RPC LTD (2005) 10 NWLR (PT. 934) PG 615 AT 628 D-E.

It is submitted that there is evidence of previous proceedings between the parties in suit No. HOW/6D/2014 which resulted in judgment, Exhibit PW1 C. However, the fact(s) relied on in the former proceedings are not the same as in these present proceedings. Whereas, the Petitioner relied on the facts stated in S. 15(2) (c) (d) of the Matrimonial Causes Act in the previous proceedings, in the present proceedings however, the Petitioner relied on S. 15(2) (f) of the Matrimonial Causes Act.

It is submitted that the Honouable Court is vested with enormous jurisdiction and discretion to grant dissolution of the marriage on the ground that the same has broken down irretrievably if the petitioner is able to prove just one of the facts/ reasons enumerated in S. 15(2)(a)-(h) of the matrimonial causes act (MCA) supra.

It is submitted that the Petitioner has established that the marriage between him and the Respondent has broken down irretrievably, both parties having lived apart for a continuous period of 3 years(three) years immediately preceding the presentation of the petition. See AJIDAHUN V AJIDAHUN SUPRA page 612 C-D.

It is submitted that the Respondent does not contest the prayer for dissolution of the marriage, and the custody of the children of the marriage remains with the Respondent in line with the decision in the former proceedings in Exhibit PW1 C and adequate provisions have been made for the welfare of the children and maintenance of the respondent till the younger child who is now 14(+) years, attains 18 years of age as agreed by the parties in the compulsory conference report filed in this suit and admitted as Exhibit PW1 D.

The Honourable Court is urged to resolve the issues (a) and (b) nominated above in favour of the petitioner.

On her part the Respondent in her Final Written Address raised one issue for determination thus:

“Whether the Petitioner has proved his case to be entitled to the discretionary powers of this court to dissolve the marriage”

It is submitted that the decision whether to dissolve the marriage between the petitioner and the respondent is solely a matter within the discretionary powers of the court in juxtaposition with the available evidence on record adduced by the party who asserts a particular position. See DURU V. NWOSU(1989) 4 NWLR (PT. 113)24.

It is submitted that the Respondent is mindful of the terms and stipulation of Exhibit PW1 D, to the effect that the petitioner under cross examination on the 27/1/17, identified Exhibit PW1 D, and further confirmed the same as his agreement and concession. That the law is that parties are bound by the agreement they willingly enter into. If the provisions of an agreement are clear the only function of the court is to interpret the agreement in enforcement terms without more. Relied on Artra Industries Ltd V. Nigerian Bank for Commerce and Industries (1997) 1 NWLR (PT. 483) 574 at 593.

It is submitted that in the instant case, the Petitioner has stated his concession backed by Exhibit PW1 D in favour of the respondent that custody of the two children of the marriage should remain with the respondent while adequate provisions in terms of funds, medical care etc. shall be provided by the petitioner in accordance with the stipulation of the said Exhibit PW1 D.

The Respondent prays the court to give effect to the terms and tenor of Exhibit PW1 D as a necessary maintenance and welfare package for the respondent and the children of the marriage. Relied on NANNA V. NANNA (2006) 3 NWLR (PT. 966) 1; HAYES V. HAYES 1 SMC P. 207. See also, SECTION 71(i) of the MATRIMONIAL CAUSES ACT.

It is submitted that while the Respondent is not adverse to the relief for dissolution of the marriage, she however prays the court to give effect to the terms, stipulations and tenor of Exhibit PW1 D as it were.

I have taken a careful look at what is presented by the parties in the Petition and Answer as well as the address of the counsel. I am of the view that what calls for determination is:

“Whether the Petitioner has proved that has marriage has broken down irretrievably as to entitle him to relief sought.”

Now, Section 15 (2) (a) – (f) & (3) of the Matrimonial Causes Act provides:

  1. 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-
  2. that the respondent has willfully and persistently refused to consummate the marriage;
  3. that since the marriage the Respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;
  4. 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.

Relevant to the case before me is Section 15, subsections 2(f) which is 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. The Petition will therefore fail or succeed on this fact alone being the fact relied upon by the Petitioner to prove to the satisfaction of the court that his marriage with the Respondent has irretrievably broken down. In the case of CHARLES OWOLOGBO UGBOTOR V. FLORENCE MAMUROMU UGBOTOR(2006) LPELR-7612(CA) it was stated:

“In any civil matter, be it matrimonial, commercial, chieftaincy or one based on land, the plaintiff fails or succeeds on his pleadings and the evidence he adduces in support of such pleadings. If he adduces evidence which is not pleaded such evidence will be discountenanced by the court, similarly if there is no evidence to support the pleadings the pleadings will go to no issue and will be ignored by the courts. For a party who seeks the judgment of the court to be in his favour must adduce such adequate credible evidence in support of his pleading. Where there is no such evidence then the averment in the pleadings are deemed abandoned. See Adimore vs. Ajufo (1989) 3 NWLR (Part 80) 1; Olurunfemi & Others vs. Asho & Others (2000) 2 NWLR (Part 643) 143.” Per BULKACHUWA, J.C.A (P. 22, paras. B-F)

The Respondent filed Answer to the Petition but did not give evidence or call any witness on her behalf. In any case the Respondent stated in paragraph 9 of her Answer thus: “The Respondent is not averse to the petition for dissolution of the marriage if custody of the Children of the marriage remains with the Respondent upon terms and conditions contained in the compulsory conference held by the parties in these proceedings.” This may have obviated the need to call or lead witness(s). The Respondent did not file Cross Petition. It is trite that where evidence is not led in support of an averment in pleadings, the averment is deemed to be abandoned. In SENATOR USMAN JIBRIN WOWO & ANOR. v. SENATOR ADAMU MUHAMMAD SIDI-ALI & ORS. (2009) LPELR-5106(CA) it was stated:

“Also in Boniface-Anyika & Co. Nig. Ltd. v. Uzor (2006) 15 NWLR Pt.1003 page 560 at 571-572, Niki Tobi JSC said: “In a case where Defendant joins issue with the Plaintiff in his statement of defence, the content and strength of the pleadings by way of statement of claim must be tested by Court in the light of oral evidence. This is because the statement of claim being Court process does not have the mouth to talk in Court. This is where oral evidence of the witness becomes important and plays a vital role in the truth searching process of the Court. It is the duty of the witness to goad the docile statement of claim by ventilating in open Court, the averments contained therein. In the absence of such evidence, the statement of claim is moribund and remains useless in the Court’s file in a contested case.”per ABOKI, J.C.A.(P.64, paras.A-D)

Does the inability or failure of the Respondent to call evidence in any way take the burden of prove out from the Petitioner? Not all. 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.  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.”

It must also be stated that 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.

To further buttress the need for evidence and prove in matrimonial causes, 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)

In this part of the world marriage is regarded as a sacred institution the dissolution of which must not be done frivolously. Marriages must be encouraged, put together, and held together. Hence, despite the fact that the Respondent seem not be averse to the dissolution of the marriage and did not lead evidence, the onus is still on the Petitioner to prove one or two of the grounds/facts provided for in the Matrimonial Causes Act for the court to hold that a marriage has broken down irretrievably. Where he 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 as this case is 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

In evidence before me is the judgment of the court delivered by His Lordship, Hon Justice F.I. Duroha-Igwe on the 29th day of February, 2016 in Suit No: HOW/6D/2014 between the Petitioner and the Respondent in this present suit as Exhibit “PWIC”. At page 15 of the said judgment the court declared:

“The petition for dissolution of marriage is dismissed. The Respondent is still the wife of the Petitioner——”

In the said dismissed petition the courts considered two facts (grounds) presented by the Petitioner which are found at page 6 of the judgment thus:

“In the instant case, the Petitioner relies on Section 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 “and (d) that the Respondent has deserted the petitioner for a continuous period of at least one year immediately preceding the presentation of the petition”.

At page 9 of the Judgment the court categorically stated:

“I believe, and I am satisfied that Petitioner left because of the existence of another woman in his life. One would have thought that the Petitioner would have taken his children to visit him in his new home if he was staying with his steward, as he claimed but he never did. —————I have carefully weighed the facts and circumstances of this case and I am satisfied that it was the Petitioner who deserted the Respondent rather than the other way round.”

On section 15(2) (c ) the court said:

From the foregoing, I can safely say that Petitioner has woefully failed to prove his case under Section 15 (2) ( c) of the Matrimonial Causes Act and I so hold”

The petition of this present petitioner was therefore dismissed on the 29-2-16.

On the 25th April, 2016, within a period of two months, this present petition was filed. This time around the ground/fact for seeking the dissolution of the marriage is as stipulated in section 15 (2) (f) of the Matrimonial Causes Act which is 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. The period of three years is to be reckoned from the 22nd day of December 2012.

In his Petition, the facts relied upon by the petitioner as constituting irretrievable breakdown of the marriage are as follows:

  1. The petitioner has lived apart from the respondent for a continuous period of at least three (3) years immediately preceding the presentation of this petition.
  2. When the behavior of the respondent became intolerable to the petitioner he moved out of the matrimonial home on the 22nd day of December, 2012 to another residence and has continued to live apart from the respondent from the date till date. The High Court of Imo State has found as a fact that the petitioner has lived apart from the respondent since 22/12/2012 till the date of the judgment in Suit No: HOW/6D/2014.

And while giving evidence on 27-1-2017, he stated as follows: I brought the petition because we have lived continuously apart for more than three years, before bringing this application and I was forced out of the matrimonial home on 22-12-12 because of her incessant intolerable conduct, the marriage has broken down irretrievably. We are not living together and there is no hope of coming back together.

I will start by saying that it is incorrect to state that “The High Court of Imo State has found as a fact that the petitioner has lived apart from the respondent since 22/12/2012 till the date of the judgment in Suit No: HOW/6D/2014”. What I understand was before the court was question of desertion.  Again to say that “When the behavior of the respondent became intolerable to the petitioner he moved out of the matrimonial home on the 22nd day of December, 2012 to another residence or “I was forced out of the matrimonial home on 22-12-12 because of her incessant intolerable conduct..” cannot stand on the face of the findings and decision of the court in HOW/6D/2014. The Petitioner left on his own accord. He was not forced to leave. He left because of another woman in his life. There was no proven behavioural misconduct of the Respondent that warranted or could have warranted his leaving. The court did not find any misconduct on the part of the Respondent.

The above scenario is the state of the marriage of the parties as at the 29th February 2016. In fact the court declared them still man and wife when it stated “The Respondent is still the wife of the Petitioner”.

I am of the view that the number of years they have lived apart was broken by the intervention of the petition instituted by the Petitioner in Suit No: HOW/6D/2014 and the court’s finding that they are still man and wife.

I will strongly posit that a husband who has not proved any matrimonial wrong on the part of his wife should not be allowed to take advantage of forced separation during period of litigation to get rid of his lawfully wedded wife and to start a new life with another woman. The Respondent here could not have had any opportunity for resuming cohabitation during the period the Petitioner herein was fighting with her in the Court in Suit No: HOW/6D/2014. See Sanjay Chhaganlal Bhutada vs Rajni W/O Sanjay Bhutada on 7 December, 2005 2006 (3) BomCR 829, 2006 (3) MhLj 482

The hurriedness with which the Petitioner commenced another petition is a clear pointer to his determination to end this marriage by all legally possible means. The Respondent is not averse to the dissolution of this marriage. And what is that supposed to mean? It means she does not have a strong feeling of opposition, antipathy, repugnance to the dissolution. She may have but it is not strong. And who wouldn’t feel that way considering that this was filed just two months after the first petition failed.

I am mindful of Section 28 of the Matrimonial Causes Act which provides:

  1. The court may, in its discretion, refuse to make a decree of dissolution of marriage if since the marriage-

(a)    The petitioner has committed adultery that has not been condoned by the respondent or, having been so condoned, has been revived;

(b)     the petitioner has willfully deserted the respondent before the happening of the matters relied upon by the petitioner or, where those matters involve other matters occurring during, or extending over, a period, before the expiration of that period; or

(c)    The habits of the petitioner have, or the conduct of the petitioner has, conduced or contributed to the existence of the matters relied upon by the petitioner.

In the previous proceedings, the court found it was the petitioner that deserted. The finding was as at the 29th February 2016. In this case I hold that it is the Petitioner who willfully deserted the Respondent, took the Respondent to court for a period of over 2 years and now want to build on it to hold that the parties have lived apart for a period of over 3 years. A situation intentional created by the Petitioner can it be allowed to allure to his own advantage?

I believe in the statement that readier availability of divorce in itself creates a habit of mind that is detrimental to marriage as an institution and to a great extent weakens the security and stability of marriage. Hence I agree with Lord Stowell when he stated in Evans v. Evans: 1 Hag. Con. 35; 16TH.R. 466 that:

“The general happiness of the married life is secured by its indissolubility. When people understand that they must live together, except for a very few reasons known to the law, they learn to soften by mutual accommodation that yoke which they know they cannot shake off; they become good husbands and good wives from the necessity of remaining husbands and wives; for necessity is a powerful master in teaching the duties which it imposes.”

From all I have said, notwithstanding that this is a non-fault divorce, had the Respondent put up a little resistance, this court would have activated its discretionary powers under section 28 of MCA.

In the course of this proceedings, the Petitioner tendered Exhibit PW1D which is the agreement reached by the parties during the Compulsory Conference. This is in line with Order XI Part 6 of the Matrimonial Causes Rules 2004. The Petitioner did not only tender the said exhibit by himself but under cross examination affirmed his agreement with the content therein.  Even if this petition is dismissed I would still have made orders in that regard by SECTION 75 of the Matrimonial Causes Act [POWER OF COURT TO MAKE ORDERS ON DISMISSAL OF PETITION.]. Subsection 2 provides:

“Where-

A       the petition for the principal relief has been dismissed after a hearing on the merits; and

B       the court is satisfied that-

(i) The proceedings for the principal relief were instituted in good faith to obtain that relief, and

(ii) There is no reasonable likelihood of the parties becoming reconciled,

The court may, if it considers that it is desirable to do so, make an order under this Part of this Act, other than an order under section 72 of this Act.”

Again even where there is no compulsory conference the court will still make a decision guided by Section 71 of the Matrimonial Causes Act which provides:

“In proceedings with respect to the custody guardianship, welfare, advancement or education of children of a marriage, the court shall regard the interests of those children as the paramount consideration; and subject thereto, the court may make such order in respect of those matters as it thinks proper.

Similar to this and also applicable here is the provision of the Imo State Child’s Right Law No. 6 of 2004 which provides:

“In very action concerning a child, whether, undertaken by an individual, public or private body, institutions or service, court of law, or administrative or legislative authority; the best interest of the child shall be the primary consideration.”

No doubt the Matrimonial Causes Act (MCA) empowers the Court to make an Order with respect to the right of either parent to the custody of a child less than 21 years. Also see Elias v. Elias (2001) 9 NWLR (Pt. 718) 429

The court will, as much as it believes it is to the best interest of the children of this marriage, integrate in the judgment and orders of this court the content of the document titled REPORT OF COMPULSORY CONFERENCE PURASUANT TO PART IV SECTION 70 OF THE MATRIMONIAL CAUSES ACT 1970, dated 31st day of October 2016 and filed on 2nd day of November 2016 and admitted in evidence as Exhibit PWID. The said Exhibit PW1D as much as incorporated into this judgment and orders is binding on the parties

The Respondent in paragraph 9 of her Answer to the petition has categorically stated that she was not objecting to a decree of dissolution of the marriage being granted. The only condition attached is the enforcement of Exhibit PW1D. Also in the last paragraph of the Respondent’s written address she stated that while she is not adverse to the relief for dissolution of the Marriage, she prays the court to give effect to the terms, stipulations and tenor of Exhibit PW1D.

It goes without saying that it takes two adults to marry, and to fulfill their marital obligations. It is clear to me now that as far as the Petitioner is concerned this marriage is at an end. We cannot pretend otherwise. What is more in the citation to the Report of Compulsory Conference which the Respondent strongly urge me to give force of law and which this court has adopted in substance, it was clearly recited:

“Whereas upon service of notice of the compulsory conference the parties represented by their solicitors met at the Law Office of Messrs D. C. DeNwigwe (SAN) & Associates on 15/10/2016 and 23/10/2016 whereat upon realizing that the marriage between the Petitioner and the Respondent has broken down irretrievably, the Respondent does not wish to object to a decree for the dissolution of the marriage but the Respondent, however, insists that the Petitioner makes provisions for maintenance to which the Petitioner has concurred as follows:”

There is nothing left. In ASHAKA CEMENT PLC v. ASHARATUL MUBASHSHURUN INVESTMENT LTD  (2016) LPELR-40196(CA) the court sated the effect of recital thus:

A recital is defined as a preliminary statement in a contract or deed explaining the reasons for entering into it, or the background of the transaction, or showing the existence of particular facts – Suu v. Jobak Nigeria Ltd (2012) LPELR-CA/IL/76/2010. It is usually preceded by the word “whereas”. It is settled that where a recital contains a statement of the existence of a fact, it constitutes an estoppel and the party or parties who made the statement in the recital are not allowed to deny subsequently the existence of that fact – Oyefeso v. University College Hospital Board of Management (1930) NCLR 94 at 103, Ejigini v. Ezenwa (2003) 16 NWLR (Pt.846) 420.” Per ABIRU, J.C.A. (Pp. 59-60, Paras. E-C)

From all indications it does appear that what I am by this petition called upon to do is to judicially terminate the marriage which by the calculated actions of the Petitioner has already come to an end in practical terms.

Both parties are in agreement that they are not living in the same household as envisage by Section 15(3) which stated: “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 the whole, it is my finding that the marriage between the Petitioner and the Respondent has broken down irretrievably on the ground that the Petitioner has lived apart from the Respondent for a continuous period of at least three (3) years immediately preceding the presentation of this petition.

The Petitioner conceded to custody of children been given to the Respondent.

It is hereby:

  1. Ordered that the marriage between the Petitioner, Mr. Valentine Chibuikem Iheasirim and the Respondent, Mrs. Ebinipre Iheasirim is dissolved. The Decree Nisi now being pronounced shall be absolute only and until every arrangement herein ordered has been put in place.
  2. Ordered that the custody of the two children of the marriage is given to the Respondent till each attains the age of 21.
  3. Ordered that the Petitioner shall have an unrestricted access to the children at all reasonable time of the day and with the knowledge of the Respondent.
  4. Ordered that the Petitioner takes the responsibility for payment of uniform fees school fees, book fees, uniform fees up to the university level for the two issues of the marriage between the petitioner and the respondent , namely:
  5. Miss Amanda Chinemerem Iheasirim- born on 5/12/2000
  6. Miss Stefanie Chinasa Iheasirim- born on 16/7/2002.
  7. Ordered that the Petitioner also bears the responsibility of the annual house rent for the rented apartment where the Respondent resides with the children aforesaid till the younger child; Miss Stefanie Chinasa Iheasirim attains 21 years of age.
  8. Ordered that the Respondent shall, in pursuance of Order E above immediately furnish the Petitioner with a copy of the Tenancy Agreement in respect of the rented apartment where she resides with the children and the details of the bank account of the landlord of the premises to enable the Petitioner make direct payment of the annual rent for the said rented apartment to the landlord thereof.
  9. Ordered that the two years arrears of rent for the rented apartment where the Respondent and the children reside at 35 Golden Valley Estate Port Harcourt, Rivers State being and representing the sum of two million only (N2, 000,000) per annum from 1st September 2015 to 31st august 2017, shall be paid in two installments of N1, 000,000 each to the respondent through the petitioner’s solicitor’s law office, Messrs D.C Denwigwe (SAN) 7 Associates as stated in the Exhibit PW1D.
  10. Ordered that with effect from October 2016, the petitioner shall make a monthly payment of Sixty-Five Thousand Naira only (65,000) to the Respondent on or before the end of each month through the law office of the Petitioner’s solicitors, Messrs D.C Denwigwe (SAN) & Associates. 34 Works Road Owerri, Imo State.
  11. Ordered that the Petitioner shall continue to pay the sum of Sixty Thousand Naira (N 60,000) to each of the two children of the marriage directly to their different bank accounts on monthly basis.
  12. Ordered that the Petitioner shall as long as he remains a staff of the company he presently works with, Oando Nigeria Plc, or any other organization/institution/company with the same or similar medical services, ensure that the Respondent and the two children of the marriage have access to the medical services to which the petitioner is entitled to till the younger child attains 21 years.

 

I so hold.

Hon Justice I. M. Njaka

25/4/17

Appearances:

O.S Akinola Esq. with F.C Amakor Esq and O.I SANWO Esq. for the Petitioner.

A.A Olusegun Esq. for the Respondent

 

Previous post Bail Application- Alteration in the Affidavit in Support- Application incompetent- struck out
Next post Customary Court- Appeal from Customary Court to High Court or Customary Court of Appeal- Extention of Time
Close

Related Post

SUIT NO: HAM/53D/2022 -MICHAEL MICHAEL OKEREKE VS NNENNA EBERECHI OKEREKE- BEFORE HIS LORDSHIP: – HON. JUSTICE I. M. NJAKA- delivered ON THURSDAY, THE 1st DAY OF JUNE 2023- The significance of the defendant not calling witnesses- it does not necessarily mean there is no evidence in support of pleadings- The ability of a party to rely on evidence elicited from cross-examination of the opponent’s witnesses, as long as it pertains to facts pleaded- The court’s authority to scrutinize the case of the plaintiff, even if the defendant does not call witnesses-The requirement for the plaintiff to prove their case on the balance of probability or preponderance of evidence, even if the defendant does not present any evidence- Exceptions to the plaintiff’s entitlement to judgment, including situations where the plaintiff heavily relies on documents but fails to tender them in court, claims for damages requiring proof, and when a relief is not expressly claimed in the statement of claim-The inadmissibility of paragraphs in the statement of claim that are notoriously false to the common knowledge of the court- The standard of proof in matrimonial matters-the court must be reasonably satisfied with the evidence presented -The mandatory nature of the provision related to parties living apart in matrimonial matters and the court’s obligation to grant a Decree once this requirement is met.

October 7, 2023

SUIT NO: HAM/54D/2021 – DR CHINWE PATIENCE PEDRO AZUOGU VS. BARR AZUOGU, PEDRO REMY- BEFORE HIS LORDSHIP: – HON. JUSTICE I.M. NJAKA.- THURSDAY 1ST JUNE, 2023- Territorial Jurisdiction- For matrimonial causes proceedings, the main requirement for jurisdiction is domicile in Nigeria, and any High Court of any State of the Federation or the Federal Capital Territory has jurisdiction to determine a petition for dissolution of marriage- Domicile- a person domiciled in any state of the Federation is regarded as domiciled in Nigeria and can file a divorce petition in any state in the country, regardless of their current residence- Forum Convenience and Interest of Justice- the importance of forum convenience and the interest of justice in determining the appropriate jurisdiction for matrimonial cases- these factors could empower the court to transfer matrimonial cases to another state high court in the federation if it serves the interests of justice – Service of Process- a fundamental condition precedent to the exercise of jurisdiction by a court of law- the two main ways of serving originating processes- personal service and service other than personal, such as substituted service- Proof of Service- compelling prima facie proof of service -the responsibility of proving there was no service of the processes rests with the Defendant.

October 7, 2023

SUIT NO: HOW/47D/2018 – MRS. OKORO CONSTANCE NWAMAKA V MR. IKERI B UGOCHUKWU- BEFORE HIS LORDSHIP: – HON. JUSTICE I. M. NJAKA- ON THE 14TH DAY OF DECEMBER 2021- There are provision and requirements for the annulment of marriage and dissolution of marriage and the effect on the parties are different -Annulment of marriage is usually on the allegation that the marriage is void or voidable -Whether the marriage is Customary or Statutory, consent is what gives the marriage its validity- Consent is an essential element in marriage, and any fraudulent or coerced consent can impact the validity of the marriage

October 2, 2023