⦿ CASE SUMMARY OF:
Mr. Josiah Ayo Olabiwonnu v. Mrs. Stella Oluranti Olabiwonnu (2014) – CA
Mr. Josiah Ayo Olabiwonnu
Mrs. Stella Oluranti Olabiwonnu
Court of Appeal
⦿ LEAD JUDGEMENT DELIVERED BY:
James Shehu Abiriyi, J.C.A.
* FOR THE APPELLANT
– T. S. Adegboye Esq.
* FOR THE RESPONDENT
– A. O. Olawole Esq.
⦿ FACT (as relating to the issues)
The Respondent and Appellant were joined in marriage on 1st July 1989 at St. Thomas Catholic Church Ogotun Ekiti. According to the Petitioner/Respondent not long after the marriage, she discovered that the couple was not compatible. The husband was always beating her. At times he would lock her up and thus prevent her from going to work. He was always suspecting her of going out with another man. She was even admitted in the hospital as a result of the beating. The Appellant even beat her sister and father who tried to intervene. She had to leave her house which she built when the husband poured hot water on her. They both built the house. She was the one that bought the (plot) land in her husband’s name and her name. When she bought the land and started building, she was keeping the receipts with the husband to appease him and make him happy. The husband spent N700,000 on the building.
Although Mr. Olufemi Fafowora learned counsel for the Appellant at page 40 of the record of appeal stated that the appellant was only interested on the issue of the house, the Appellant nevertheless opposed the dissolution of the marriage because he invested in the wife and did not want to lose his investment. He also still loved the wife. He denied ever beating the wife. He did not do anything to make the wife leave the matrimonial house. It was discovered in 2004 that the wife was befriending one Mr. Femi Odebode but she denied the affair. Since then, she started staying away from the house for days. Efforts to reconcile with her proved abortive. Although the wife caused him to be arrested by the police and be detained for two days, he still loved her. The land and the house belonged to him and not to the wife. The house is not worth N3 million. He built it with mud block.
After considering the evidence before him and addresses of learned counsel for both parties, the trial court entered judgment in favour of the Petitioner/Respondent in part. The Appellant was dissatisfied and has approached this Court asking it to set aside the judgment and dismiss the Respondent’s case.
1. Whether the writing of affidavit verifying the facts of the divorce petition on a separate document other then on the petition complied with Order V rule 10(1) of the Matrimonial Causes Rules 1983 to make the divorce petition of the respondent competent for the court to entertain.
2. Whether or not the ancillary orders made by the trial court on settlement of property are supportable in law and in equity.
3. Whether or not from the pleadings and evidence adduced by the parties their marriage could be said to have broken down irretrievably.
⦿ HOLDING & RATIO DECIDENDI
[APPEAL: DISMISSED, IN PART]
1. ISSUE 1 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. In the case of Unegbu v. Unegbu (2004) 11 NWLR (Pt. 884) 332 this Court per Mahmud Mohammed JCA (as he then was) held that failure to do exactly what is required by the above rule could be fatal to a petition. In that case which is very similar to this in the sense that the above rule has not been complied with the petition was struck out. In that case objection was raised to the non compliance by the Respondent immediately he was served with the petition. However, the Respondent in this case raised no objection to the processes served on him, participated in the trial and conceded in part to the petition in that he did not object to the dissolution of the marriage. It was after hearing, addresses of counsel and judgment that the Appellant now seeks to have the petition struck out for failure to comply with the above rule. When an irregular procedure is adopted with the acquiesce of a party to a civil action such irregular procedure cannot be a ground of appeal. Also where a wrong procedure has been followed in filing a process and no objection was raised by the party who should have objected, the Court is entitled to proceed with the hearing despite the wrong procedure followed.
2. ISSUE 2 WAS RESOLVED IN FAVOUR OF THE APPELLANT BUT AGAINST THE RESPONDENT.
i. The Respondent sought for an order ejecting the Appellant from her house. However as the Lower Court rightly found none of the parties proved their respective claims to exclusive ownership of the house and held that the house was a matrimonial (house) home. He also rightly held that the Appellant could not be ejected from the house as claimed by the Respondent. He however ordered the Appellant to vacate the house and for it to be sold by auction by the Chief Registrar and the proceeds distributed. I agree entirely with Appellant’s counsel that there was no basis for the somersault by the Lower Court. Having found that the Appellant cannot be ejected from the house it amounted to the same thing asking him to vacate the house and for it to be sold and the proceeds distributed according to Yoruba custom. I agree entirely with learned counsel for the Appellants that Yoruba customary Law was inapplicable to this petition for the dissolution of a statutory marriage. There was therefore no basis for invoking Customary Law principles of distribution of the proceeds of the sale of the house. The order asking the Appellant to vacate the house having been wrongly made in the first place, the issue of sale of the house did not therefore arise. The issue of dealing with the house under Yoruba custom also had no basis as the marriage between the parties was not customary but statutory marriage.
3. ISSUE 3 WAS RESOLVED IN FAVOUR OF THE RESPONDENT.
i. In this case the petitioner pleaded various acts of cruelty and testified to alleged beating meted out not only on her but her sister and father who is now late and that the final blow was when the appellant poured hot water on her. She said she had to leave when the appellant poured hot water on her. As learned counsel for the appellant has not shown that this final act of cruelty was condoned, I am of the view that the respondent was entitled to the dissolution of the marriage under Section 15(1) and (2) (c) of the Matrimonial Causes Act and not because the marriage was a contract between two willing parties.
⦿ SOME PROVISIONS
Order V Rule 10(1) of the Matrimonial Causes Rules provides as follows: “A petitioner shall, by affidavit written on his petition and sworn to before his petition is filed – a) Verify the facts stated in his petition of which he has personal knowledge; and b) Depose as to his belief in the truth of every other fact stated in the petition.”
⦿ RELEVANT CASES
⦿ NOTABLE DICTA
When an irregular procedure is adopted with the acquiesce of a party to a civil action such irregular procedure cannot be a ground of appeal. Also where a wrong procedure has been followed in filing a process and no objection was raised by the party who should have objected, the Court is entitled to proceed with the hearing despite the wrong procedure followed. – Abiriyi, J.C.A. Olabiwonnu Olabiwonnu (2014)
With respect to the learned trial Judge and the parties in this case no marriage will be dissolved merely because the parties have agreed that it be dissolved. It will not be dissolved merely because it is a contract between two willing parties as the learned trial Judge held. 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. That is why marriages will not be dissolved on agreement of parties to it. A decree for the dissolution of marriage would therefore only the granted if the petitioner has proved that the marriage had broken down irretrievably and that the petitioner finds it intolerable to live with the respondent. – Abiriyi, J.C.A. Olabiwonnu Olabiwonnu (2014)
It is trite that if a counsel or party treats a document, procedure or matter as admissible or regular, then he cannot be heard or be at liberty to object or complain later or before an appellate court. The Appellant’s learned counsel did not oppose the petition when it came up for hearing, having consented he could not later resile or complain. The consent was and amounted to an undertaking that the Appellant had permanently waived his right, if any, to object or complain. – Owoade, J.C.A. Olabiwonnu Olabiwonnu (2014)