Divorce Cases

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

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IN THE HIGH COURT OF IMO STATE

IN THE OWERRI JUDICIAL DIVISION

HOLDEN AT HIGH COURT OF JUSTICE, OWERRI

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

                ON THE  14TH DAY OF DECEMBER 2021

                                                      SUIT NO: HOW/47D/2018

BETWEEN:

MRS. OKORO CONSTANCE NWAMAKA           PETITIONER

V

  1. IKERI B UGOCHUKWU                        RESPONDENT

JUDGMENT

By notice of Petition filed 2-7-2018, the Petitioner seeks for the following reliefs:

  1. A decree of Nullity of the marriage between her and the Respondent contracted at the Marriage Registry, Owerri Municipal Council in Imo State, Nigeria on the 13th day of January, 2014
  2. Such other order(s) as the Court may deem fit to make in the circumstances.

Facts relied on are:

  1. That the Respondent was previously legally married to another woman before contracting another marriage with the Petitioner.
  2. That the name of the Respondent’s fist wife is Mrs. Joy Ikeri and she is still living with the Respondent up till now.
  3. That Respondent never paid any dowry on the head of the Respondent (Petitioner) and he has repeatedly requested that the Respondent (Petitioner) should go and remarry.
  4. That the consent of the Petitioner was obtain (sic) by fraud, the Respondent deceived the Petitioner into the marriage.
  5. That the consent of the Petitioner was obtained under duress, the Respondent emotionally put the Petitioner under severe stress.
  6. Since the marriage the Petitioner and the Respondent hae not had any form of peaceful co existence as couple. The Respondent enjoys making life unbearable for the Petitioner and thereby frustrating any meaningful move to bring peace between the both of them.
  7. The Petitioner and the Respondent merely cohabited for less than a month after contracting their marriage before the Petitioner abandoned the marriage due to unbearable behaviors of the Respondent. The Respondent us in the habit of fighting the Petitioner on any small issue and has threatened the life of the Petitioner on many occasions.
  8. That the parties to the marriage have lived apart for more than Three years now and there is no more love for each other to continue on their former relationship as both parties have resolved to go their separate ways.
  9. The respondent is wayward man who keeps illicit relationships with other unknown faces and which had often resulted in quarrels between the Respondent and the Petitioner on various occasions within the time they cohabited
  10. The Respondent openly disgraces the Petitioner by engaging in physical violence against the Petitioner thereby causing the Petitioner to lose hard earned good reputation she has built before the marriage
  11. The Petitioner and the Respondent could not till date reconcile their differences despite the efforts of friends, relations and well-wishers.
  12. The Respondent will not object or challenge this suit since the Respondent personally requested that the Petitioner should go and file for divorce and he (sic) happily living with his first wife
  13. That I never knew that the Respondent was formally married to someone else before the marriage.

The petitioner gave evidence and testified as follows:

“That I am the petitioner in this petition. That the Petitioner, whose address is No 21b lake Nwaebere Street, Aladinma, Owerri, Imo State, but a native of Ogwuaga, Abba in Nwangele Local Government Area of Imo State, and who is a Banker petitions this Honourable Court for a Decree of Nullity of the marriage against the Respondent whose address is No 15 lake Nwaebere Street, Aladinma, Owerri, Imo State. The grounds wherein this Petition was brought is as follows: That the Respondent was previously legally married to another woman before contracting another Marriage with the Petitioner. That the consent of the Petitioner was obtain by fraud. That the Consent of the Petitioner was obtained under duress.  That the parties to the marriage have lived apart for a continuous period of more than three years immediately preceding the presentation of the petition. That the Respondent was previously legally married to another woman before contracting another Marriage with Petitioner, at the marriage Registry, Owerri Municipal Council in Imo State, Nigeria on the 13th day of January, 2014, according to the Marriage Act, wherein the parties were issued a certificate of marriage. That there was no change of surname by the petitioner. That the Petitioner was born at Ogwuaga, Abba in Nwangele Local Government Area of Imo State, on the 18th day of May 1988, while the Respondent was born at Umuihim, Okohia, Isiala Mbano L.G.A, Imo State and was born in 19/8/1975. That the petitioner and respondent are within domiciled in Nigeria. The facts on which the Court will be asked to find that the petitioner and respondent are so domiciled are as follows; Both the petitioner and the respondent were born in Nigeria. The parents of both the petitioner and respondent are Nigerians. he petitioner and the respondent are Nigerian citizen. The petitioner and the respondent have at all material time lived in Nigeria. That the petitioner and the respondent cohabited last at Umuihim, Okohia, Isiala Mbano, Imo State. That cohabitation between the parties ceased on 21st day of February, 2014 when the respondent’s character became unbearable to the petitioner and the Petitioner met the first wife of the Respondent. That there is no child in the marriage. That since the marriage, there has never been any proceeding in a Court between the petitioner and the respondent. That the specific facts relied upon by the petitioner as constituting the grounds specified above are as follows: That the Respondent was previously legally married to another woman before contracting another with Petitioner. That the name of Respondent first wife name is Mrs Joy Ikeri, and she is still living with the respondent up till now. That the respondent never paid any dowry on the head of the respondent and he has repeatedly requested that that the respondent should go and remarry That the consent of the Petitioner was obtain by fraud, the respondent deceived the Petitioner into this marriage. That the Consent of the Petitioner was obtained under duress, the Respondent emotional appeal put the Petitioner under severe stress. Since after the marriage, the petitioner and the respondent have not had any form of peaceful coexistence as couple. The respondent enjoys making life unbearable for the petitioner and thereby frustrating any meaningful move to bring peace between the both of them. The petitioner and the respondent merely cohabited for less than a month after contracting their marriage before the petitioner abandoned the marriage due to unbearable behaviours of the respondent. The respondent is in the habit of fighting the petitioner on any small issue and has threatened the life of the petitioner on many occasions. The petitioner and the respondent have lived apart for more than Three years now, and there is no more love for each other to continue on their former relationship as both parties have resolved to go their separate ways. The respondent is a wayward man who keeps illicit relationships with other unknown faces and which had often resulted in quarrels between the respondent and the petitioner on various occasions within the time they cohabited. The respondent openly disgraces the petitioner by engaging in physical violence against the petitioner thereby causing the petitioner to lose his hard-earned good reputation she has built before the marriage. The petitioner and the respondent could not till date reconcile their differences despite the efforts of friends, relations and well-wishers. The respondent will not object or challenge this suit since the respondent personally requested that the petitioner should go and file for divorce and he happily living with his first wife. That I never knew that the Respondent was formally married to someone else before the marriage. That the Petitioner and the Respondent last intercourse was on 20th day of February 2014. That the parties have separated from each other and lived apart for about Five years and the respondent all this period has failed to tow the line of, reasoning. The petitioner is not aware of the whereabouts of the respondent, and can no longer vouch for him as a second wife. That the petitioner has not condoned or connived on any of the grounds specified above and is not guilty of collusion in presenting this petition.

RESOLUTION OF MATTER:

From the Notice of Petition, it would appear that this is for annulment of marriage. There are provision and requirements for the annulment of marriage and dissolution of marriage and the effect on the parties are different. After an annulment of marriage, the parties are regarded as not having been married in the first place. This is not so in the case of dissolution of marriage. A petition by a party to a marriage for a decree of dissolution of that marriage may be presented to the Court by either party thereto, upon the ground that the marriage has broken down irretrievably.  The party will them go on to prove any of the instances or circumstances or grounds as provided in section 15 (1) and (2) (a) (h) of the Matrimonial Causes Act. In MR. ABDULAZEEZ AKINLOLU v. DR. AMINAT YEWANDE AKINLOLU (2019) LPELR-47416(CA) it is stated:

Marriages are not dissolved because the parties have agreed that the marriage between them should be dissolved. Marriage is sacred institution and has at least in this part of the world been held to be so. It is not just a contract between tow persons but a contract that the world in interested in its sustenance and failure has a ripple effect. It is such a special contract that even most parties to it will always want the whole world to bear witness. So, marriage is a very important institution. It is the foundation of a stable society. It is the nucleus of society in that it is the families that make the society. Marriages that are entered into and run out of by mere agreement of parties certainly would not auger well for the society. The policy of the law therefore is to preserve the institution of marriage. See MR. JOSIAH AYO OLABIWONNU v. MRS. STELLA OLURANTI OLABIWONNU (2014) LPELR-24065(CA). In MRS. OLUFUNMILAYO DORCAS OGUNTOYINBO v. OLATOKUNBO LADIPO OGUNTOYINBO (2017) LPELR-42174(CA) it is stated:

“I only wish to observe that the marriage institution is the bedrock upon which any orderly and civilized society is built. Its collapse will inevitably have a negative effect on not only the children and the couple involved, but ultimately the society at large. To that end, 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.” Per HARUNA SIMON TSAMMANI, JCA (P. 27, paras. A-E)

Annulment of marriage is usually on the allegation that the marriage is void or voidable. A marriage is void as provided under section 3 of MATRIMONIAL CAUSES ACT. It provides thus:

  1. (1) Subject to the provisions of this section, a marriage that takes place after the commencement of this Act is void in any of the following cases but not otherwise, that is to say, where-

(a)   either of the parties is, at the time of the marriage, lawfully married to some other person;

(b)   the parties are within the prohibited degrees of consanguinity or, subject to section 4 of this Act, of affinity;

(c)   the marriage is not a valid marriage under the law of the place where the marriage takes place, by reason of a failure to comply with the requirements of the law of that place with respect to the form of solemnisation of marriages;

(d)   the consent of either of the parties is not a real consent because- (i) it was obtained by duress or fraud; or (ii) that party is mistaken as to identity of the other party, or as to the nature of the ceremony performed; or (iii) that party is mentally incapable of understanding the nature of the marriage contract;

(e)   either of the parties is not of marriageable age.

(2)   The prohibited degrees of consanguinity and affinity respectively on and after the commencement of this Act shall be those set out in the First Schedule to this Act, and none other.

(3)   A marriage solemnised before the commencement of this Act shall not be voidable on the grounds of consanguinity or affinity of the parties unless the parties were, at the time of the marriage, within one of the degrees of consanguinity or affinity set out in the First Schedule to this Act but nothing in this subsection shall make voidable a marriage that would not, apart from this provision, be voidable

Voidable marriage is provided for under section 5 thus:

  1. (1) Subject to this Act, a marriage that takes place after the commencement of this Act not being a marriage that is void, shall be voidable in the following cases but not otherwise, that is to say, where at the time of marriage-

(a)   either party to the marriage is incapable of consummating the marriage;

(b)   either party to the marriage is- (i) of unsound mind, or (ii) a mental defective, or (iii) subject to recurrent attacks of insanity or epilepsy;

(c)   either party to the marriage is suffering from a venereal disease in a communicable form; or

(d)   the wife is pregnant by a person other than the husband.

(2)   For the purposes of this section, “mental defective” means a person who, owing to an arrested or incomplete development of mind, whether arising from inherent causes or induced by disease or injury, requires oversight, care or control for his own protection or for the protection of others and is, by reason of that fact, unfitted for the responsibilities of marriage.

By section 34 of the Matrimonial Causes Act:

Subject to the following provisions of this Part of this Act, a petition under this Act for nullity of marriage may be based on the ground that the marriage is void, or on the ground that the marriage is voidable at the suit of the petitioner.

In this petition the 1st ground that before the Respondent is married to the Petitioner he was and is still married to another woman. This comes under section 3(1)(a) of the Act.

The second marriage is void irrespective of whether the first marriage was customary or statutory. Section 33(1) provides:

No marriage in Nigeria shall be valid where either of the parties thereto at the time of the celebration of such marriage is married under customary law to any person other than the person with whom such marriage is had.

[L.N. 1 of 1955. 1970 No. 18.]

Section 35 provides:

“Any person who is married under this Act, or whose marriage is declared by this Act to be valid, shall be incapable, during the continuance of such marriage, of contracting a valid marriage under customary law; but, save as aforesaid, nothing in this Act contained shall affect the validity of any marriage contracted under or in accordance with any customary law, or in any manner apply to marriages so contracted.

Sections 33 and 35 of the Act has been given effect in the law courts. Thus in MRS. TAMUNOMITEIM NOLA & ORS v. DUBOYE GRAHAM-DOUGLAS & ANOR (2019) LPELR-48285(CA) it is stated:

“Resolving this issue at pages 748 – 749 of the Record of Appe     al the learned trial Judge cited and quoted Section 33 (1) of the Marriage Act which provides that “No Marriage in Nigeria shall be valid where either of the parties thereto at the times of the celebration of such marriage is married under Customary law to any person other than the person with whom such marriage is had.” His Lordship then stated that: “The above provision is very clear, it gives due respect and credence to a preexisting customary marriage. It provides no dichotomy between a marriage under the Act and under Customary Law in the sense of one being main and the other minor… In view of the clear provision of Section 33 (1) of the Marriage Act and having regard to the fact that there was an existing customary Iya marriage between the late Chief Donald Graham-Douglas and the late Mrs. Gladys Claudiana Graham-Douglas, it is very clear that the marriage between the late Chief Donald Graham-Douglas and the 2nd defendant was invalid. That being the case, it follows that the 2nd defendant was in law, not the wife of the late Chief Donald Graham-Douglas and therefore cannot be described as the sole surviving wife of the late Chief Donald Graham-Douglas.” Having been well reasoned and based on the evidence before the Court and the applicable law I accept the foregoing findings of the learned trial judge…” Per ISAIAH OLUFEMI AKEJU ,JCA (Pp. 14-16, paras. E-A)

And in MRS. ETHEL C. CHUKWU & ORS v. HON. LOLO STELLA C. CHUKWU & ORS (2016) LPELR-40553(CA) it is stated:

“Thus, in line with Sections 34, 35, and indeed 36 of the Marriage Act and the authorities of Onwudinjoh v. Onwudinjoh [957-58] 11 ERNLR 1, Craig v. Craig (1964) LLR 96, Nwankpele v. Nwankpele [1973] 3 U. I. L. R 8, Abisogun v. Abisogun [1972] 10 S.C. 1 and the maxim Ex turpi causa non Oritur actio” the purported marriage of the 1st Respondent with the late LAS Chukwu having been contracted after the earlier statutory or Church marriage with the 1st Appellant, was ab initio null and void as the so called certificate marked Exhibit B must have been fraudulently acquired.”

Per IGNATIUS IGWE AGUBE ,JCA (Pp. 69-73, para. D-D)

This was reiterated in PETER CHIKE MGBODU v. WILLY KANAYO MGBODU (2018) LPELR-43770(CA) where the court said:

“Let me say that while a subsequent Statutory marriage by or to a person who is either married under the Act or in accordance with Customary law is forbidden, subsequent marriage under the Act or in accordance with Native law and Custom is not forbidden under any law where the parties remain the same. In other words, where Mr. A marries Mrs. A in accordance with Native law and custom, they can proceed to conduct another marriage under the Act if they so wish and vice versa. However, during the pendency of either a marriage in accordance with Native law and custom or a marriage under the Act, Mr. A or Mrs. A cannot validly conduct any marriage with another person under the Act. This is the position of the law as provided in Section 33 (1) of the Marriage Act as follows: 33. (1) No marriage in Nigeria shall be valid where either of the parties thereto at the time of the celebration of such marriage is married under customary law to any person other than the person with whom such marriage is had. That been said, the proviso in Section 35 as I said earlier in this judgment is irrelevant to the circumstances of this case where there was a valid and subsisting statutory marriage, the trial Court predictably did not allude to the proviso in its judgment.” Per HELEN MORONKEJI OGUNWUMIJU ,JCA (Pp. 7-9, paras. B-D)

The Petitioner asl stated that his consent was obtained by fraud. Whether the marriage is Customary or Statutory, consent is what gives the marriage its validity. Hence in DR. OSADIAYE OSAMWONYI v. ITOHAN OSARIERE OSAMWONYI (1972) LPELR-2789(SC) it is stated:

“In my view,consent is not only basic but fundamental to either a potentially polygamous union such as a customary marriage or a monogamous union such as marriage under the Act. Special provisions for obtaining consent are inserted in the Marriage Act (cap.115). I also find as established on the evidence before me that there can be no valid marriage under Benin native law and custom without the parties to it living together right from the very inception thereof.” Per ATANDA FATAI-WILLIAMS ,JSC (Pp. 9-10, paras. F-A)

There has been an attempt to distinguish a void and voidable marriage with regards as to requirement of court order to so declare as sated in the holding of the Court in the case of DE RENEVILLE V. DE RENEVILLE (1948) ALL ER 56 by Lord Green which was also restated in the case of MBONU V. MBONU (1976) I FNR 57 thus:

“A void marriage is one that will be regarded by every court in any case in which the existence of the marriage is in issue as never having taken place and can be so treated by both parties to it without the necessity of any Decree annulling it; A voidable marriage is one that will be regarded by every court as a valid subsisting marriage until a Decree annulling it has been pronounced by a Court of competent jurisdiction.”

I will say that whether an act is void or voidable it still requires the order of the court to so declare it. This to my mind is rightly sated in the case of CHIEF NNANNA IWUCHUKWU & ANOR v. THE ATTORNEY GENERAL OF ANAMBRA STATE & ANOR (2015) LPELR-24487(CA) thus:

“”… a void act is a no event and yields or creates nothing, for ex nihilo nihil fit and that it can never be too late to bring legal proceedings to declare it a nullity and set it aside as such. This is clearly brought out by the holding of the Supreme Court in MUSTAPHA V. GOVERNOR OF LAGOS STATE & ORS (supra) per Oputa JSC that “it can never be too late to admit and give effect to the plea that the judgment or Order was a nullity.” In JOZEBSON INDUSTRIES CO. V. LAUWERS IMPORT – EXPORT (supra), the Apex Court held per Nnamani JSC that ‘It is of course settled that if the proceedings were null and void, the question of extension of time to appeal which is now engaging this Court would not have arisen since time does not run against an appellant in relation to a null judgment.” Per EMMANUEL AKOMAYE AGIM ,JCA (P. 74, paras. B-F)

Having gone through the evidence before me, I found for the Petitioner.

The marriage between her and the Respondent contracted at the Marriage Registry, Owerri Municipal Council in Imo State, Nigeria on the 1st day of January, 2015, declared null and void and of no effect.

I so hold

I.M.Njaka

Judge

14-12-2021

 

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