‘Marriage not dissolved merely on agreement of parties to it’
This is an appeal against the judgment of the Osun State High Court sitting at Ilesa delivered on the 1st March 2013. The respondent as petitioner filed a divorce petition against the respondent now appellant claiming the following reliefs:
a. A decree of dissolution of the marriage celebrated on the 1st day of July, 1989 at St Thomas Catholic Church, Ogotun-Ekiti, between the petitioner and the respondent on the grounds that the marriage has broken down irretrievably, cruelty and attempted murder cum threat to life.
b. An order restraining the respondent, from threatening, assaulting, harassing, visiting and disturbing the petitioner either in her rented apartment or permanent home or her place of work or any other place whatsoever.
c. An order of the court ejecting the respondent from the petitioner’s house lying, situate and being at No 1 Oluranti Olabiwonnu Close, Ijangiri Quarters, behind Nigerian Breweries Plc, Imo, Ilesa. OR An order directing the respondent to pay to the petitioner the sum of two million and three hundred thousand Naira (N2,300,000) being the total sum expended by the petitioner on the house lying, situate and being at No 1 Oluranti Olabiwonnu Close, Ijangiri Quarters, behind Nigerian Breweries Plc, Imo Ilesa. OR An order of the court directing the respondent to collect from the petitioner the sum of seven hundred thousand Naira (N700,000) being the total sum expended by the respondent on the house lying, situate and being at No 1 Oluranti Olabiwonnu Close, Ijangiri Quarters, behind Nigerian Breweries Plc, Imo Ilesa.
d. An order mandating the respondent to be paying to the petitioner the sum of N25,000 as monthly allowance for the up-keep and educational pursuit of the children.
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 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 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 upon six grounds of appeal. The following three issues were formulated from the six grounds of appeal.
1. Whether the writing of affidavit verifying the facts of the divorce petition on a separate document other than 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. Ground 2, 3.
2. Whether or not the ancillary orders made by the trial court on settlement of property are supportable in law and in equity. Grounds 1, 4, 6.
3. Whether or not from the pleadings and evidence adduced by the parties their marriage could be said to have broken down irretrievably. (Ground 5)
I will therefore determine the appeal only on the issues formulated by the appellant and which both parties have argued extensively.
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.”
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 themarriage. 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.
The appellant having maintained his silence on the wrong procedure in filing the petition after he had been served with the processes and participated in the trial to the end should therefore hold his peace.
Issue 1, is therefore resolved in favour of the respondent.
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.
Issue 2 is resolved in favour of the appellant.
The record of appeal contains the following conversation:
“Court: Mr. Fafowora: Are you contesting the dissolution of the marriage.
Fafowora: We are not contesting the divorce and we are leaving the issue of custody of the children to the discretion of the court. All that we are interested in is the issue of the house in question.
Olawole: Now that this (sic) issues have been narrowed down I will lead evidence to that issue.”
From the foregoing conversation, the parties agreed to the dissolution of the marriage between them. It is not surprising therefore that the lower court in its judgment stated thus:
“However, it should be remembered that a marriage is a contract between two willing parties. It cannot be compelled.”
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 be 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.
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 sections 15(1) and (2) (c) of the Matrimonial Causes Act and not because the marriage was a contract between two willing parties.
Issue 3 is resolved in favour of the respondent.
Issue 2 having been resolved in favour of the appellant, the appeal succeeds in part.
The order of the court ordering the appellant to vacate the matrimonial house at no 1, Oluranti Olabiwonnu Close, Itagiri quarters, behind Nigerian Breweries Plc, Imo Ilesa and directing the Chief Registrar to get a valuer to value the house, sell by public auction and distribute the proceeds is hereby set aside.
I affirm the decree granted for the dissolution of the marriage and the order restraining the appellant from threatening or disturbing the respondent at her place of work or abode.
As parties were husband and wife. Each of them is to bear their respective costs.
Appearances T. S. Adegboye Esq; for the appellants A. O. Olawole Esq; for the respondents
JAMES SHEHU ABIRIYI, JCA (delivering the leading judgment)