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/2017
BETWEEN
MR. GEORGE OMEZE PETITIONER
AND
MRS. LOVELINE IFUNANYA OMEZE RESPONDENT
JUDGMENT
By NOTICE OF PETITION dated 23rd day of March 2017 and filed same day the Petitioner seeks for the dissolution of the marriage contracted with the Respondent, LOVELINE IFUNANYA OMEZE on the 2nd day of February 2005 on the grounds that the marriage between the Petitioner and the Respondent has broken down irretrievably by reason of the fact that:
a. Since the marriage, the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with her.
b. Since the marriage, the respondent has behaved cruelly towards the petitioner without any genuine reason, and fights the petitioner without any justifiable reason.
c. Since the marriage the respondent has bluntly refused to consummate the marriage.
d. Since the marriage, the Petitioner and the Respondent has been living apart.
e. In 2005, immediately after their marriage, the Petitioner told her that they would travel to Germany but the Respondent refused that she never loved him as a person.
f. That the respondent never wanted to marry the Petitioner but was forced into marriage with the Petitioner by her Uncles whom he was living with and they threatened to lay a curse on her if she refused to marry the Petitioner.
g. The Respondent told the Petitioner that she was informed that he was already married to a white lady and lives with him in Germany.
h. The Respondent was in the habit of abusing the Petitioner wherever he comes back from German to see her, by calling him old cargo before his friends.
i. The Respondent has packed her things and moved with her lover at Mbaise.
j. Since the marriage, the Petitioner and the Respondent have not related to each other again as husband and wife in any form. Whatsoever as she has continued to live apart by her own choice.
The Respondent though served with the processes did not file answer to the Petition.
On 22nd May 2017, the Petitioner testified as follows:
My name is George Umeze, I come from Awomama Oru East Imo State. I am a business man. I know the Respondent. She is my wife. I married her, I paid dowry, I married her statutorily. I was issued with a marriage certificate, if I see the certificate I will recognized it. Yes, that is the certificate
I do not know her where about now, I am not living with her, after our marriage, after some time; she started misbehaving, telling me that she was forced to marry me by her uncle and aunt. I kept petting her to see if the marriage will continue. Each time I come home she will start calling me names. That I am an old man, old cargo before my friends. It is over ten years now we stopped living together.
I did not consent to her packing out. There is no child of the marriage. There has not been any previous proceeding in this case. I want the court to dissolve my marriage.
The marriage certificate issued on 2/2/2005 is admitted in evidence and marked as exhibit A
Matter was adjourned for cross examination on the 19/6/17. Hearing notice was ordered and served on the Respondent. The Respondent was absent on the 19th June 2017 and the matter was adjourned to 3rd July 2017. Meanwhile on the 30th June 2017 the Respondent filed FORM 28 pursuant to Order XI Rule 18 of Matrimonial Causes Rules. The Respondent was represented by a counsel on the 3rd July 2017.
On the 11th July 2017 both counsel adopted their addresses. The Petitioner’s address was filed on the 5th day of July 2017 wherein he formulated for determination the followings issues:
(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 Admission made by the Respondent
On issue 1, it was 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 irretrievable need no driving. From 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. She was no longer prepared to carry on with the duties and responsibilities of the marriage.
Her desertion of the Petitioner and the matrimonial home for more than 10 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)” © 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 periods of at least three years immediately preceding the presentation of the petition.
It is submitted that on the first issue the court has unassailable grounds to dissolve the marriage between the parties and the court is urged to so resolve it.
On issue 2, it was argued 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 effects service had effected since 29/3/2017. The Registrar issued a Register’s certificate and thereafter the suit was set down for trial.
Trial commenced on 22/5/2017 and the Respondent neither filed an answer to the petition but on the 3/07/2017 when the Respondent was to open her defence she made a representation and instead of challenging the petition she filed form 28 admitting the petition. The said Respondent counsel urged the court to dissolve the marriage as the Respondent is no longer interested in the marriage and had since moved on with her life and asked the court to dissolve the marriage.
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 in contest. SEE CAPPA & D’ALBER to LTD V. AKINTILO TILO (2003) 9 NWLR (pt. 824) 49 Ratio 6 at P. 71.; FOLORUNSON & 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 Cm – Est) v. ADACENTRO NIG LTD( 1997) 11 NWLR (PT. 529) 467 Ratio 11 SC
The Respondent having admitted Petition and having not challenged or contradicted same, 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.
In conclusion, it is submitted that the court has been presented with facts relating to the contract of marriage between the parties, facts attesting to the incompatibility and irretrievable breakdown 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.
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.
The Respondent’s counsel adopted her written address filed on 10th July 2017.
In the written address it is stated that the Respondent was served with the court processes in the this matter which is for the dissolution of the statutory marriage between the Petitioner and the Respondent contracted at Marriage Registry Ikoyi, Lagos State.
It is further stated that the Respondent in response to the court processes served on her filed FORM 28 which is to the effect that she is not interested in challenging the petition. The Respondent and the petitioner are not compatible in any way.
The court is therefore urged to grant the dissolution of the marriage between the Petitioner and the Respondent so that the Respondent can go on with her life.
RESOLUTION OF MATTER.
I have listened to the PW1 and heard the counsel to the parties adopt their addresses. The issue is:
“Whether the Petitioner has satisfied the court with the evidence before it to be entitled to the relief sought.
The Respondent did not file an answer to the Petition but this in no way has not reduced the burden on the Petitioner to satisfy the court with the evidence placed before it. In BAKARE v. BAKARE (2016) LPELR-41344(CA), it is 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) –
Even in civil cases generally the mere fact that the facts in pleading or an affidavit are not denied does not automatically entitle the party to a favourable judgment. The court will still have to evaluate the undenied evidence to see if it supports 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
The Petitioner has argued that the Respondent admitted the Petition and that she filed Form 28 under Order XI Rule 18 of the Matrimonial Rules.
Now the Order XI Rules 18 provides:
(1) Subject to sub-rule (5) of this rule, a party to proceedings may at any time not later than ten days before the trial of the proceedings, by notice in writing served on another party to the proceedings, call upon the other party to admit, for the purpose of the proceedings, any specific fact or facts mentioned in the notice and that other party may, by notice in writing, admit the fact or any of those facts.
(2) If the party on whom a notice to admit has been served refuses or fails to admit in writing a fact mentioned in the notice within seven days after service of the notice on the party, or within such further time as is allowed by the court, the court may order that party to pay the costs of proving the fact.
(3) An admission made by a party to proceedings in pursuance of a notice to admit served under sub-rule (1) of this rule shall be deemed to be made only for the purpose of the proceedings and shall not be used-
a. against the party in any other proceedings ; or
b. in favour of any person other than the party giving the notice
(4) A court may at any time allow the party to amend or withdraw an admission made under this rule upon such terms as the court thinks fit.
(5) Nothing in this rule shall be deemed to authorize a party to proceedings to call upon another party to admit a fact which that other party has denied in a pleading filed for the purpose of the proceedings.
(6) A notice referred to in sub-rule (1) of this rule shall be in accordance Forms 27, with and an admission of a fact in answer to such a notice shall be in writing and in accordance with Form 28.
(7) An admission made under this rule with respect to a fact does not prevent the party who made the admission from objecting to the admission of the fact in evidence on a ground that is not inconsistent with his admission.
From the provision, it is evident that there must be FORM 27 before Form 28. The Petitioner did not state anywhere that he served Form 27 on the Respondent to bring about Form 28. In any case the fact that the Respondent agrees to a divorce does not make the dissolution mandatory on court. 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)
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.”
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.”
Another issue raised by the Petitioner in his pleadings/notice is that since the marriage the Respondent has bluntly refused to consummate the marriage. Non-Consummation could be on account of ‘impotency’, or ‘willful refusal. It does appear that here it is a case of non natural cause brought about by ‘Living Separately’, ‘Not-Living-Together’. Non-consummation of marriage may be a ground to seek divorce but it has to be proved. SECTION 21 of the Matrimonial Causes Act- headed: ‘Restriction on finding of non-consummation’, went on to state:
The court shall not find that a respondent has wilfully and persistently refused to consummate the marriage unless the court is satisfied that, as at the commencement of the hearing of the petition, the marriage had not been consummated
This Petition was filed on 23rd March 2017 and the marriage was contracted on 2nd February 2005. A simple arithmetic shows that the marriage as at 23rd March 2017 was 12years. It is the testimony of the Petitioner that: it is over ten years now we stopped living together. I take it to be that they were together for one or two years. The only way to satisfy the court that the marriage has not been consummated is to lead evidence on the pleaded fact on that. 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)
Now Matrimonial Causes Act Chapter M 7 Laws of the Federation of Nigeria by section 15 (1), (2) (a)- (h), (3) provided:
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
The submission of the counsel for the Petitioner is that, 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 as covered under section “15(2) (c) – (f) which are:” (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 periods of at least three years immediately preceding the presentation of the petition.
The Petitioner testified: ‘It is over ten years now we stopped living together. I did not consent to her packing out’. I agree with the Petitioner that this has met the requirement of section 15(2) (d) – (f) of the Matrimonial Causes Act. More particularly, section 15 (2) (d) on the 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 has shown that there is a physical separation, and there is a vowed intention to remain separated and it is without his consent.
The Petitioner has satisfied the court with the evidence before it to be entitled to the relief sought. The marriage between the Petitioners, Mr. George Omeze and the Respondent, LOVELINE IFUNANYA OMEZE on the 2nd day of February 2005 is hereby 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:
I.C.Prince-Onunwa Esq. for the Petitioner
Victor Opara Esq. for the Respondent