⦿ CASE SUMMARY OF:
Dr. Akinremi Oritsewetin Nanna v. Mrs Ekpehose Maryanne Nanna (2005) – CA
– Dissolution of marriage;
Dr. Akinremi Oritsewetin Nanna
Mrs Ekpehose Maryanne Nanna
(2006) 3 NWLR (Pt.966) 1
Court of Appeal
⦿ LEAD JUDGEMENT DELIVERED BY:
Abba A Ji, JCA
* FOR THE APPELLANT
– J. I. Odibeli, Esq.
* FOR THE RESPONDENT
– S. Iredia Osifo, Esq.
⦿ FACT (as relating to the issues)
The facts of the case was that the petitioner and the respondent/cross petitioner were married on the 9th day of November, 1991 at the St. James Anglican Church, Akpakpava Road, Benin City. After the marriage, they both cohabited and lived together at the Petroleum Training Institute, Warri until October, 1992. From October 1992 to October, 1993, they lived and cohabited in London. They returned to Nigeria in October, 1993 and lived together until sometime in December, 1996 when the respondent left the matrimonial home and have lived apart for a period of more than four years proceeding the presentation of the petition. The two children of the marriage have been living with the respondent. The petitioner at the trial testified in support of his claim and tendered several exhibits. He did not call any witness. Also, the respondent/cross petitioner testified and also tendered several exhibits to support her position. She too did not call any other witness. At the conclusion of evidence, the respective counsel addressed court. In a considered judgment delivered on the 19/3/2002, the learned trial Judge dismissed the petition and granted the respondent/cross petition decree NISI, custody of the children and other ancillary reliefs.
This is what the trial Judge said in giving judgment to the respondent/cross petitioner:- “I hereby dismiss the petition of the petitioner which has not been proved and grant a decree Nisi to the respondent on the basis of successfully proving the cross petition. (i) It is hereby ordered that the petitioner should pay a monthly sum of N50,000.00(fifty thousand naira) for the maintenance and upkeep of the children. (ii) To pay the school fees, books and other school expenses for the children as shown on the bills sent by the school from time to time. (iii) A monthly sum of N25,000.00 (twenty-five thousand naira) for the maintenance and upkeep of the respondent/cross petitioner until she gets married to another man. (iv) It is hereby ordered that custody of the children is granted to the respondent/cross petitioner with access to the petitioner only at reasonable times of the day.”
It is against this judgment that the appellant has now appealed to this court upon five (5) grounds of appeal vide a notice and grounds of appeal dated the 18/6/2002.
1. Whether the learned trial Judge was right in concluding that the appellant did not prove that the marriage between the parties has broken down irretrievably, having failed to consider the evidence adduced by the petitioner as required by law.
2. Whether the learned trial Judge was right in awarding custody of the children of the marriage solely to the respondent having held that no single parent can take care of children.
3. Whether the learned trial Judge erred in law by awarding the respondent a cumulative sum of N75,000.00K monthly as maintenance and up-keep for herself and the children which sums were not proved as required by law.
4. Whether the learned trial Judge was right in holding that the respondent cross-petitioner has sufficiently proved matrimonial cruelty on the part of the petitioner.
⦿ HOLDING & RATIO DECIDENDI
[APPEAL: DISMISSED, IN PART]
From the totality of the evidence adduced before the trial court, it is my considered view that the learned trial Judge was right in holding that the appellant has not proved his petition as required by law. I have no reason based on the evidence abound from the records to hold otherwise. It is also my considered view that the learned trial Judge properly evaluated the evidence adduced by the parties before it before arriving at its conclusion that the appellant has not proved his case under section 15(2)(c) Matrimonial Causes Act that the marriage has broken down irretrievably.
1. ISSUE 1 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. The test whether the petitioner can or cannot be expected to live with the respondent is objective. It is not therefore sufficient that the petitioner alleges that he cannot live with the respondent because of her behaviour, the behaviour must be such that a reasonable man cannot endure. What would amount to behaviour which the petitioner cannot reasonably be expected to put up with, has been provided in section 16 (1) of the Act.
ii. Now the question that arises is whether the appellant has proved the allegations contained in his amended petition? Paragraph 11(a) and (b) of the petition is equivalent to section 15(2)(c) and (e) of the Act. The provisions of sub-section (2) of the Act and paragraph 11(a) and (b) of the amended petition have all been reproduced in this judgment. Where in a petition for dissolution of marriage founded under section 15(2)(c) of the Act the court hearing the petition for the dissolution of marriage shall hold that the petitioner has satisfied the court of the fact mentioned in section 15(2)(c) if the petitioner satisfied the court with either of the items specified in the said section 16(1)(a) (g) of the Act. None of these items as specified in the said section 16(1) (a) (g) of the Act have been established by the appellant before the lower court. The appellant has not satisfied the lower court with any of those facts set out in section 16(1)(a) (g).
iii. On paragraph 11(b) of the amended petition which is equivalent to section 15(2)(c) of the Act, the fact that the parties have lived apart for continuous period of two years immediately preceding the presentation of the petition is not by itself conclusive proof upon which divorce could be granted on the ground that the marriage has broken down irretrievably. The evidence of desertion as adduced in the instant case, is not the desertion contemplated under section 15(2)(e) of the Act. Desertion within the meaning of section 15(2)(e) of the Act must be one where any of the spouse abandons and forsakes without any justification, thus renouncing its responsibilities and evading its duties. Based on the foregoing therefore the learned trial Judge was right to have come to the conclusion that the appellant has not proved his case as required by law and I so hold.
2. ISSUE 2 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. Although there is no settled rule that a child of tender age should remain in the custody of the mother, I take the view that custody of a child of the marriage came along with it, the all important implications of the preservation and care of the child’s person, morally, physically and mentally. I have stated above the evidential account of the arrangement of the appellant put together for the well-being of the children. If same is considered against the back ground drop of the evidence adduced by the respondent, can that be said to be sufficient as to warrant the grant of the custody of the children to the appellant? I think not. There is nothing therein to persuade the court to grant custody of the children to the appellant. I agree with the respondent’s counsel that such arrangements are merely cosmetic in view of the antecedents of the petitioner during the subsistence of the marriage. What the children need is not a mere endowment policy and a 5-bedroom apartment.
ii. The appellant’s aunty cannot take the place of their mother. The antecedents of the appellant reveals it all. It will amount to a negation of the well settled principles that the welfare and the interest of the child or children of the marriage must be accorded paramountcy were an order of custody of the children of the marriage be made in favour of the appellant based on the said cosmetic arrangement.
iii. The finding by the learned trial Judge that “No single parent can adequately take care of children” is only what ordinarily should be and does not make it absolute. That has not affected the decision of the lower court in granting custody of the children to the respondent. Ideally, the children need both their parents, but where this natural arrangement is disrupted and can no longer hold due to the uncompromising attitude of either of the parties to the marriage, then custody must be borne by either of the spouses taking into account the provisions of section 71(1) of the Act and other factors and circumstances. I therefore have no reason to disturb the findings of the lower court in this regard. On the alternative submission for joint custody, the learned trial Judge granted the appellant access to the children. I also find this arrangement ideal. It is not in the interest of the children to be shifting base from one place to the other. The appellant can have access to his children whenever he desires to see them. In view of the finding above, it will be against the interest of the children to grant joint custody.
3. ISSUE 3 WAS RESOLVED IN FAVOUR OF THE APPELLANT BUT AGAINST THE RESPONDENT BY REDUCING THE MONTHLY PAYMENTS.
i. The learned trial Judge ordered the petitioner to pay cumulative sum of N75,000.00K for the maintenance of the respondent and the two children. In addition, the petitioner is also to pay the school fees, books and other expenses for the children as shown on the bills sent by the school from time to time. In the circumstances of the appellant’s monthly income of only N115,947.35K and this additional responsibility, the monthly sum of N50,000.00k for maintenance of the two children as awarded by the lower court is excessive and is hereby reviewed to N30,000.00k while that of the respondent is reviewed from N25,000.00k per month to N20,000.00k thus, bringing the monthly maintenance for the respondent and the two children to N50,000.00Konly. In arriving at this figure, I have in mind the back ground of the standard of life which the appellant previously maintained before he and the respondent parted and the current economic trend. The court would have regard to what is fair and equitable based on the evidence adduced by the parties at the trial.
4. ISSUE 4 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. In the instant case, there is evidence before the trial court that the appellant used to harass and beat the respondent on the slightest provocation. There is evidence that there was a time the appellant was so worked up in anger and he wanted to apply fist blow on the respondent, he missed and his hand landed on the door and broke through the door and left his hand dangling from the other side of the door. There was also evidence before the court that he gave the respondent 21 days ultimatum to pack out of the matrimonial home and after begging to allow her stay in the matrimonial home as she has no where to go, the appellant reduced the ultimatum to 7 days. These and others are all borne out by evidence from the records of the court. These pieces of evidence by the respondent were not denied or contradicted by the appellant. Evidence that is not successfully challenged or discredited and that is relevant to the issues in controversy ought to be admitted and relied upon by a trial court for it is for all intents and purposes credible and reliable.
S. 15 Matrimonial Causes Act;
S. 70 Matrimonial Causes Act;
S. 71 Matrimonial Causes Act;
⦿ SOME PROVISIONS
⦿ RELEVANT CASES
⦿ NOTABLE DICTA
Under Nigerian law, he who asserts in the affirmative and would fail if no evidence is called has the burden under section 136 of the Evidence Act to prove the assertion. In the instant case, the burden of proving whether the marriage has broken down irretrievably lies on the appellant. – Abba A Ji, JCA. Nanna v. Nanna (2005)
In divorce proceedings, the petitioner must prove one of the facts contained in section 15(2)(a)(h) of the Matrimonial Causes Act before he can succeed and where the petitioner fails to prove that, the petition for the dissolution of the marriage will be dismissed notwithstanding the fact that the divorce is desired by both parties. – Abba A Ji, JCA. Nanna v. Nanna (2005)
In a civil case, where the parties call evidence, before the trial Judge accepts or rejects evidence of either of the parties, he is enjoined to set up an imaginary scale by putting the evidence of the plaintiff who invariably has the burden to succeed in a civil case by preponderance of evidence on one side of the imaginary scale and then proceed to put the evidence adduced by the defendant on the other side of the imaginary scale and weigh the two together to see where the imaginary scale tilts. Ordinarily, the court performs its task of evaluation of evidence by placing the evidence called by either side to the conflict on every material issue on either side of the imaginary scale and weighing them together and whichever out weights the other in terms of probative value ought to be accepted. – Abba A Ji, JCA. Nanna v. Nanna (2005)
Cruelty is not ground set out in grounds of divorce. The facts can be used to show the conduct of the respondent in such a way that the petitioner cannot reasonably be expected to live with the respondent. Thus, a marriage can properly be held to have broken down irretrievably on the ground that one spouse has been proved to be guilty of cruelty to the other. In the instant case, from the evidence borne out from the records, according to the respondent, it is the cruel acts meted to her by the appellant that were intolerable. – Abba A Ji, JCA. Nanna v. Nanna (2005)
Cruelty is therefore regarded as a conduct which is grave and weighty as to make cohabitation virtually impossible coupled with the injury or a reasonable apprehension of injury physical or mental, to health. The accumulation of minor acts of ill-treatment causing or likely to cause the suffering spouse to break down under strain constitutes the offence of cruelty. – Abba A Ji, JCA. Nanna v. Nanna (2005)