CASE SUMMARY OF:
Lt. Col. Shehu Ibrahim (Rtd) v. Mercy Ibrahim (2006) - CA
- Dissolution of marriage;
Lt. Col. Shehu Ibrahim
(2007) 1 NWLR (Pt.1015) pg.383;
Court of Appeal
LEAD JUDGEMENT DELIVERED BY:
Olukayode Ariwoola, J.C.A.
* FOR THE APPELLANT
- Iroagalachi Anthony Auditz Esq;
* FOR THE RESPONDENT
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FACT (as relating to the issues)
This is an appeal against the decision of the Kaduna High Court delivered on 9th June, 2000 in the divorce petition of the Appellant.
The facts of this case are that, the petitioner, herein after referred to as the Appellant, and the Respondent got married under the Act on 15th December, 1979. The marriage is blessed with four children, three females and one male. Both parties had cohabited in the following places: Military Cantonment, Jalingo, Gongola State; No. 12 Ogunlowo Street, Ikeja, Lagos; Nigeria Army Barracks Alamala, Abeokuta, Ogun State; and Flat 6, Block A, No. 8A, 2nd Avenue, Ikoyi, Lagos.
The Appellant had taken out a petition at the lower Court against the Respondent herein and sought a decree for the dissolution of the marriage between him and the Respondent. The facts relied upon by the petitioner as constituting the ground leading to the breakdown of the marriage as specified in the petition include mainly: (i) that since the marriage, the Respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the Respondent due to infidelity, idolatry and hostility. (ii) 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 petitioner testified and tendered a few documents that were admitted as exhibits but he did not call any other witness. The Respondent though filed an amended answer to the petition and a cross-petition, she later abandoned these and did not come forward to defend the petition or prosecute her cross-petition.
Upon being satisfied that the Respondent had had adequate notice of the hearing of the case, the trial Court proceeded to hear the case and in a considered judgment, the learned trial Judge dismissed the petition without any consequential order on the 2nd and 3rd legs of the petitioner's prayer.
Dissatisfied with the decision of the High Court, the Petitioner appealed to this Court against the whole judgment.
1. Whether the evidence adduced in totality were not enough to satisfy the trial Court that the marriage had broken down irretrievably.
HOLDING & RATIO DECIDENDI
1. ISSUE 1 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. There is no doubt that the Petitioner pleaded several facts including infidelity, idolatry and hostility in his petition (See paragraph 9 at pages 126 129 of record of proceedings supra). But these facts were required to be proved by credible evidence.
ii. I am not in the slightest doubt therefore that the petitioner failed to prove the alleged intolerable behaviour of the Respondent which he wanted the court to believe and find -that he cannot reasonable be expected to continue to put up with. There is no doubt that infidelity, idolatry and hostility were not the only facts the petitioner relied upon to prove that he is entitled to the decree dissolving the marriage. Actually there were other facts alleged in the petition. But the question is; did the petitioner prove those facts? Indeed none of the allegations raised against the respondent was grave and weighty enough to amount to intolerable behaviours envisaged by Section 15(2) (c) of the Matrimonial Causes Act and none of the facts was proved. In other words, the requirements of Section 15(2) (c), Matrimonial Causes Act which the petitioner relied upon were not met. The lower court was therefore right in dismissing the petition and in its refusal to grant the decree sought. Accordingly, Issues No.1 and 2 are resolved against the appellant. Furthermore, the petitioner also alleged and averred that the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding this petition due to the hostility of the Respondent to the petitioner.
iii. From the totality of the evidence adduced by the petitioner, I am satisfied that none of the above constituent elements of the requirement of Section 15(2) (e) of the Act was proved, Indeed no credible evidence was adduced by the petitioner to prove the fact. From the printed record of proceedings, the place of residence where the respondent had been staying in Lagos is the official residence of the petitioner. This is clear from his pleadings and there is nothing to show that he has relinguished the residence since he retired. It was therefore still the matrimonial home of the parties, the fact that they had yet another house in Kaduna notwithstanding.
S. 15(2) Matrimonial Causes Act;
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The Court is ordinarily not obliged to accept the issues for determination as framed by the appellant. In appropriate cases, the court may decide suo-motu to frame issues. But any issue so framed by the court must not "depart from the contents or purport and ramifications of the issues already framed by the parties and distilled from the grounds of appeal. - Ariwoola, J.C.A. Ibrahim v. Ibrahim (2006)
It is trite that, merely pleading a fact without credible evidence adduced to prove it goes to no issue. Averments in petition like pleadings not being human do not have mouth to speak or talk in Court. They must be made to speak through human beings called witnesses. Otherwise, the averments remain lifeless and moribund and cannot be regarded or considered by the Court as any useful material in support of the owner's case. - Ariwoola, J.C.A. Ibrahim v. Ibrahim (2006)
The law is settled that averments in pleadings as in petitions are no evidence and cannot be so construed. They are mainly to set out the evidence that a party is likely to adduce and present during trial, so that the adversary would not be caught unaware or unprepared. Indeed, that is the purport of exchange of pleadings. Averments in pleadings must necessarily be proved by evidence, except of cause, where they are admitted clearly by the other party. - Ariwoola, J.C.A. Ibrahim v. Ibrahim (2006)
In otherwords, the conduct of a respondent that a Petitioner will not be reasonably expected to put up with must be grave and weighty in nature as to make further cohabitation virtually impossible. However, before the Court will come to that conclusion, the entire history of the marriage has to be considered. In other words, the Court must consider the totality of the matrimonial history of the parties to the petition. - Ariwoola, J.C.A. Ibrahim v. Ibrahim (2006)
In matrimonial cases, it is highly desirable that the evidence adduced by parties is corroborated by evidence of independent witnesses. And in practice, the courts do require such corroboration, unless the absence of witnesses to provide such corroboration has been satisfactorily accounted for. It has been held that, in particular, in undefended suits, such as the instant case, the need for corroboration is far greater. - Ariwoola, J.C.A. Ibrahim v. Ibrahim (2006)
It is true that the burden of proof in a civil case is on the plaintiff; in this case on the appellant who was the plaintiff at the trial court and where the plaintiff fails to discharge the burden, he can not rely on weakness of the defendant's case. In that sense the defendant bears no burden to adduce any evidence or satisfactory evidence. - Baba Alkali, J.C.A. Ibrahim v. Ibrahim (2006)
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