IN THE HIGH COURT OF IMO STATE OF NIGERIA
IN THE HIGH COURT OF AHIAZU MBAISE JUDICIAL DIVISION
HOLDEN AT AHIAZU MBAISE
ON THURSDAY, THE 1st DAY OF JUNE 2023
BEFORE HIS LORDSHIP: – HON. JUSTICE I. M. NJAKA
SUIT NO: HAM/53D/2022
BETWEEN:
MICHAEL MICHAEL OKEREKE PETITIONER
AND
NNENNA EBERECHI OKEREKE RESPONDENT
JUDGMENT
By Notice of Petition filed on 22-4-2022 the Petitioner prays for the a decree of dissolution of the marriage on the grounds that the parties have continuously lived apart from each other two years preceding the presentation of this petition and the Respondent has behaved in such a way that the petitioner finds it intolerable to live with her.
The Petitioner testified: I Michael Michael Okereke, male, adult, transporter, Christian, resident at Amakpaka, Nnarambia, Ahiara, Ahiazu Mbaise LGA, Imo State, do hereby make oath and state as follows: I am the Petitioner in this action. I am a native resident of Amakpaka, Nnarambia, Ahiara in Ahiazu Mbaise LGA, Imo State, Nigeria and also partly reside in Virginia, United States of America. I will be about thirty six years of age this year 2023. I know the respondent, she is my wife. We became husband and wife through a statutory marriage which we conducted at the Ezinihitte Mbaise Local Government Marriage Registry at ltu on the 7th day of June 2019 for which we were issued with a marriage certificate. I have in my possession the original copy of our said Marriage Certificate. I shall rely on same at the hearing. After our marriage on 7th June 2019, we cohabited for about five months which was cut short by the need for me to travel to the United States of America to follow up the processing of her immigration documents. Prior to my travelling, I and the Respondent agreed to first solemnize our marriage in church here in Nigeria as we promised our ardent Christian families. As soon as I got back to the USA and resumed the processing of her travel papers, the respondent no longer spoke of our Church marriage here, but of coming overseas. All efforts I made to convince her on the need for us to keep to our agreement and our promise to our families on the church marriage were in vain. When I contacted her parents and insisted on keeping to the agreement or else I will go for a dissolution, they accepted the dissolution option and so also did the respondent. We have continuously lived apart from each other for over two years preceding the filing of this petition. Our marriage did not produce any children yet. It is my strong belief that this marriage irretrievably broken down.
The Respondent filed Answer on 28-9-2022 but they did not file written deposition and did not call witness.
The counsel to the Petitioner filed FINAL WRITTEN ADDRESS. According to the counsel, on the 22nd day of April 2022, the petitioner filed the present petition seeking the dissolution of the statutory marriage conducted between him and the respondent at the Ezinihitte Mbaise Marriage Registry precisely at ltu, Ezinihitte Mbaise L.G.A., of Imo State on the 7″ day of June 2019, nearly three years before the filing of this petition.
They went on to state that the Petitioner set out two major grounds on which he relied to establish that the marriage between him and the Respondent has broken down irretrievably They are: (a)That the parties have lived apart for a continuous period of two years immediately preceding the presentation of the petition. (b) That since the marriage, the respondent has behaved in a way that the petitioner finds it intolerable to live with the petitioner.
In his introduction he went ahead to state that at the hearing, the petitioner adopted a written statement on oath filed by him as his evidence in chief. That was on 20″ January, 2023 and was briefly cross examined by the respondent’s Counsel. The Respondent through her Counsel filed an answer to the petition after obtaining leave to do so out of time. That was on the 28″ October, 2022. The answer to the petition did not oppose the petition for dissolution, but dwelt on denying one of the issues presented by the petitioner as one of his reasons for seeking divorce. The respondent however admitted that there has been a break-up of the marriage. The petitioner at the hearing tendered the original copy of their Marriage Certificate and same was admitted in evidence and marked as Exhibit “1”.
The fact of the case as stated by the counsel is: In his evidence as set out in his written deposition, the petitioner in paragraphs 8, 9, 10, 11, 12 and 13, thereof among other facts listed out the failure of the respondent to honour their mutual agreement (as they promised their families) to celebrate their marriage in Church here in Nigeria before she can join him abroad. That this led to their disagreeing to proceed with the marriage which according to him was not objected to by her parents. The respondent’s Counsel in line with her position not to contest the petition did not oppose this petition. The matter was then adjourned for presentation of written addresses.
The counsel submitted the issue for determination as:
Whether the petitioner has established that the marriage between him and the respondent has irretrievably broken down.
It is submitted that the petitioner has established that the marriage between him and the respondent has irretrievably broken down to warrant a grant of his petition. Section 15 subsection (1) thereof of the Matrimonial Causes Act, 1970 have set down the only ground for dissolution of a statutory marriage which is when the marriage is proved to have “broken down irretrievably”. Subsection (2) of the outlined S.15 of the cited Matrimonial Causes Act went further to emphatically clarify that for a Court to hold a marriage as having broken down irretrievably, the petitioner must satisfy the Court of one or more of the facts listed out in sub paragraphs (a) to (h) thereunder.
According to the counsel, a study of the present petition and the evidence of the petitioner will clearly disclose that the grounds set out in this petition fall within subparagraphs (c) and (e), especially subparagraph (e) of Section 15(2) of the MCA. With regards to subparagraph (c), this petitioner deposed in paragraph 9 of his statement on oath that the respondent reneged on their mutual agreement to solemnize their marriage in Church as they promised their ardent Christian families and instead became obsessed with coming overseas (apparently on account of what travelling abroad to America meant to such young people here in Nigeria). Even though the respondent debunked this fact in her answer to the petition when she stated that the issue that led to the break-up was her queries over the petitioner’s immigration status; she did not file any deposition in that respect and did not give evidence in opposition of same. The legal implication of that is that the petitioner’s evidence in this respect remains uncontroverted and cannot but be accepted by the Honourable Court. So it was held in EBEINWE vs STATE (2011) 7 NWLR (pt. 1246) 402 at 416 per MUKTAR JSC (as she then was).
It is submitted that the Petitioner also relied on subparagraph (e) of S.15 (2) of the MCA when he stated in paragraph 12 of his deposition that he and the respondent have continuously lived apart for over two years preceding the filing of this petition. In paragraph 12, the petitioner also narrated how both the respondent and her parents quickly jumped at his idea of going for dissolution of the marriage if the respondent does not keep to their agreement. The respondent in paragraph 10 of her answer admitted the fact in paragraph 12 and in paragraph 11 of her answer admitted that the marriage actually broke down. It is trite in law that admitted facts need no further proof.
According to the counsel in many decisions of the Apex Court such as in KOPEK CONSTRUCTION COMPANY LTD vs. EKISOLA, (2010) 3 NWLR (pt. 1182) 618 at 663 paras C-D per MUHAMMAD (JSC), and in OFORLETE vs. ST ATE (2000) 12 NWLR (pt 681)415, at 436 paras B-C per ACHIKE JSC, it has been held that a Court is duty bound to accept unchallenged and or unrebutted and indeed admitted evidence placed before it in so far as such evidence by its nature is not incredible.
There are no claims as to damages and custody as there were no children of the marriage. It is submitted that the petitioner on account of his reliance on S.15(2) (c) and (e) has been able to establish that the marriage has broken down irretrievably moreso as his evidence in support were neither challenged at all nor successfully rebutted. This Court is urged to grant the petition.
RESOLUTION OF MATTER
Now the Respondent filed Answer to the Petition and cross examined the PW1, though she did not give evidence in support of her Answer. In AEROBELL (NIG) LTD & ORS v. FIDELITY BANK (2018) LPELR-45338(CA)
“I had earlier in the course of this judgment drawn attention to the decision of the Supreme Court on the question in the Admin & Exec. of the Estate of ABACHA v. EKE-SPIFF & ORS (Supra).
I need only further emphasize that failure to call witnesses does not necessarily translate to no evidence in support of pleadings as failure to call witnesses is not the same as failure to place evidence before the Court. Evidence elicited from a plaintiffs witness under cross-examination forms part of the case of the defendant. The law allows a party to rely on evidence he elicits by cross examination of his opponent’s witnesses as long as the evidence is in respect of facts which he pleaded. See: UCHIV & ANOR v. SABO & ORS (2015) LPELR0-40360 (CA).”Per TUKUR, J.C.A. (Pp. 24-25, Paras. F-D) –
I must also state that the fact that the defendant did not call witness does not stop the court from scrutinizing the case of the Plaintiff and to sieve same with judicial sieve. In OGUNYADE V. OSHUNKEYE (2007) ALL FWLR,(PT.389) 1179 AT 1197 PARAS. D – E (SC); (2007) 4 -5 SC 98 it is stated:
“Failure on the part of a defendant to give evidence does not automatically mean that judgment must be given in favour of a plaintiff who has a duty to prove his case. Where a plaintiff fails to prove his case on the balance of probability or on preponderance of evidence, his case will be thrown out notwithstanding the fact that the defendant did not give any evidence.” Per Mukhtar JSC.
But it is not in all cases where a Defendant does not defend an action that the Plaintiff will be entitled to Judgment. It depends on the peculiar facts of the case. the exceptions include
- In a situation where the Plaintiff relies heavily on documents and he fails to tender them in Court, he will not be entitled to Judgment SONUGA & ANOR V. MINISTER, FCT, ABUJA & ANOR (2010) LPELR-19789(CA)
- In respect of a claim for damages, for damages are always said to be in issue, requiring the plaintiff to prove them OKE & ORS V. AIYEDUN (1986) LPELR-2427(SC)
- Plaintiff still cannot obtain a relief not expressly claimed in the statement of claim.- AG FED V. A.I.C LTD (2000) LPELR-628(SC)
- Where a paragraph of the statement of claim is notoriously false to the common knowledge of the Court, like 10th July is Nigeria’s independence anniversary, such a paragraph is not admissible because it is an obvious untruth– OKOEBOR V. POLICE COUNCIL & ORS (2003) LPELR-2458(SC)
The Respondent chose to cross examine the Petitioner in this case. Evidence elicited from a plaintiffs witness under cross-examination forms part of the case of the defendant.
I have careful examined the evidence of before me. the court talking about the issue of parties have lived apart and the standard of prove has this to say in OMOTUNDE V. OMOTUNDE (2001) 9 NWLR (PT.718)525:
Section 15(2)(1) of the Matrimonial Cause Act states that 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:-(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.
The standard of proof in matrimonial matters is as embodied in section 82(1) of the Act which reads that:-For the purposes of this Act: a matter shall be taken to be proved if it is established to the reasonable satisfaction of the court’. In my view, what is reasonable satisfaction of court is difficult to define. There is no kind of blanket description for same either – but it must depend on the exercise of judicial powers and discretion of an individual Judge. It however entails adducing all available evidence in support of an assertion before the court. By section 15(2)(1) of the Act: a court hearing a petition for the dissolution of a marriage shall hold the marriage to have broken down irretrievably if the parties to the marriage lived apart for a continuous period of three years immediately preceding the presentation of the petition. The law is that the provision is mandatory and the court has no discretion to exercise. The section has the factor of absence of fault element characteristic of other matrimonial offences-the law behind the section that is 15(2)(1)as far as the living apart is concerned is not interested in right or wrong or guilt or innocence of the parties. Once the parties have lived apart, the court is bound to grant a Decree.” Per ADEKEYE, J.C.A. (Pp. 62-63, paras. D-E)
It is my finding that the Petitioner has proved his case and is therefore entitled to the relief sought. The Marriage between the Petitioner and Respondent is accordingly dissolved. The order nisi now pronounced shall become order Absolute at the end of three (3) months.
I so hold
I.M.Njaka
Judge
1-6-2023
Appearance: Benneth E Nnamdi Esq., for the Petitioner
N.Jude Nwakanma Esq., for the Respondnet