Effect of Failure to Comply with Stipulated Rules in Matrimonial Proceedings

In the Supreme Court of Nigeria

Holden at Abuja
On Friday the 16th Day of December, 2016

Before Their Lordships

Walter Samuel Nkanu Onnoghen AG.CJN
Mary Ukaego Peter-Odili
Olukayode Ariwoola
Kumai Bayang Aka’ahs
Kudirat Motonmori Olatokunbo Kekere-Ekun
Justices, Supreme Court SC.41/2008

Between JohnPhilip Okechukwu Tabansi……………… Appellant

And

Vivian Ifeoma Tabansi……Respondent

Lead Judgement delivered by Kumai Bayang Aka’ahs, JSC

“In making an order for maintenance, the court must always have regard to the means, earning capacity and the conduct of the parties to the marriage and other relevant circumstances”

FACTS
The Appellant filed a Petition before the trial High Court, seeking dissolution of the marriage to the Respondent, unlimited access to the child of the marriage, and custody of the child of the marriage upon attaining the age of ten years. The Respondent filed an Answer to the Petition and also Cross-petitioned. A Reply to the Petition and Settlement of Issues were also filed by the Petitioner.

The Settlement of issues were adopted by the Respondent and in her amended Answer and Cross- Petition, she sought an Order dismissing the Petition; a decree of dissolution of the marriage; custody of the child of the marriage; monthly maintenance of the child of the marriage by the Petitioner at the rate of N80,000.00 (Eighty thousand Naira) only per month subject to variation; and return of the Respondent’s properties listed in the schedule to the Answer and Cross-Petition. After the trial, the learned trial Judge dismissed the Petition and upheld the Cross- petition. A decree nisi dissolving the marriage on the ground that it was the Petitioner who deserted the Respondent, was also made. The court granted custody of the child to the Respondent and ordered the Petitioner to pay N75,000.00 (Seventy-five thousand Naira) for general maintenance and upkeep of the child of the marriage, subject to variation in due course. The Petitioner was dissatisfied with the judgement and appealed to the Court of Appeal. The appellate court dismissed the appeal, which prompted a further appeal to the Supreme Court.

Issues for Determination

The parties formulated various issues for determination, but the Honourable Court identified the following issues as germane for the determination of the appeal: i. Who among the parties is guilty of desertion? ii. Is the award of N75,000.00 monthly against the Appellant as maintenance allowance justifiable? iii. Whether the Court of Appeal was correct in allowing the award of permanent maintenance and permanent custody through the life of the child?

Arguments On the first issue, learned Counsel for the Appellant submitted that it is a common position between the Appellant and the Respondent, that it was the Respondent who deserted the matrimonial home. Counsel submitted that though the Respondent filed a Cross-petition, failure to cross-examine the Appellant’s witness on material issues is a tacit acceptance of the truth of the evidence led on the matter, and the Respondent would not be allowed to call evidence on the matter after the close of the Petitioner’s case.

Counsel opined that the stance of the lower court that the Respondent who filed a Cross-petition cannot be prevented in law from giving evidence on his or her Cross-petition, runs contrary to the principle enunciated by the Supreme Court in GAJI v IPAYE (2003) 8 NWLR (Pt. 823) 583. On his part, learned Counsel for the Respondent submitted that contrary to the argument of the Counsel for the Appellant, the Appellant as PW1 was duly cross- examined on the issue of desertion and referred the court to pages of the Records of Proceedings. With regard to the second issue, the Appellant questioned the rationale for the award of N75,000.00 monthly as maintenance allowance.

He posited that by virtue of the provisions of Order XIV Rule 4(1)(2)(4)(6)(7) and (8) of the Matrimonial Causes Rules, the Respondent is obliged to comply with certain conditions, plead certain facts and lead evidence thereon, to be entitled to the Order of maintenance sought. He argued further that the non-compliance with these Rules cannot be seen as a technical argument, as it goes to the root of the Order of maintenance, and without ascertaining the earning capacity of the parties, the Court could not have been in a position to make any justifiable Order of maintenance.

The response of learned Counsel for the Respondent was that the apex court should not allow the issue of technicalities, becloud the justice of the case. He pointed out that the provision of Order XXI Rule 3 of the Matrimonial Causes Rules has relieved the Respondent from the consequences of such non-compliance.

Court’s Rationale and Judgement

On the first issue, the Supreme Court held that there is constructive desertion where the Petitioner is the cause of the Respondent leaving the matrimonial home. The court referred to paragraphs of the Answer to the Petition, where the Respondent averred that the Appellant deserted her and behaved in a way that she could not reasonably be expected to live with him. She averred that it was the Appellant who brutally assaulted, attempted to murder her and drove her away from the matrimonial home. The court found further that the cross-examination of the Appellant dealt with the issue of what led to the Respondent deserting the matrimonial home, and since she also filed a Cross-petition, she was entitled to call evidence in support of her case. The learned Justices of the apex court held that the Respondent was compelled by the circumstances to pack out of the matrimonial home and since she was forced out by the behaviour of the Appellant, he is the one who is guilty of constructive desertion. The court held further that the principle of law enunciated in the case of GAJI v IPAYE (supra) to the effect that a Defendant who fails to cross-examine a witness on material issues raised by the Plaintiff, will not be allowed to call evidence on the matter after the Plaintiff has closed his case, is not applicable in this case.

On the second issue, the learned Lords of the apex court considered the provisions of Order XIV Rule 4 and Order XXI Rules 3 and 4 of the Matrimonial Causes Rules relied on by the parties.

Specifically, Order XIV Rule 4(4) provides that: “In proceedings for ancillary relief, being proceedings with respect to the maintenance of a party to the proceedings or of a child of the marriage, the claimant shall state in his application for ancillary relief particulars of – (a) The property, income and financial commitments of the claimant; (b) The capability of the claimant to earn income; (c) The property, income and financial commitments of the spouse of the claimant, so far as they are known to the claimant; (d) The capability of the spouse of the claimant to earn income, so far as that capability is known to the claimant; (e) Any financial arrangements in operation between the claimant and the spouse of the claimant; (f) Any order of court under which one of the parties to the marriage is liable to make payments to the other; and (g) The ownership of the home in which the claimant is residing and the terms and conditions upon which the claimant is occupying or otherwise residing in that home.” Order XXI of the Matrimonial Causes Rules deals with effect of non-compliance with the provisions of the Rules afore-mentioned.

Rules 3 and 4 provide that a court may, upon such terms as it thinks fit, relieve a party from the consequences of non- compliance with these Rules, with a rule of practice and procedure of the court to the proceedings or with an order made by the court. Deciding this issue, the apex court agreed that the purport of Order XIV Rule 4 is to guide the court in ensuring that in granting a prayer for maintenance, the party who is adversely affected by the Order will have something left to sustain himself after settling the award. The Court observed that Rules of court are meant to be followed albeit not blindly as they are made to aid the court in the administration of justice. They are subsidiary legislations and are not meant to be construed in the absolute without reference to or oblivious of the raison d’etre for their coming into being – UNEGBU v UNEGBU (2004) 11 NWLR (Pt. 884) 332.

The position of the learned Counsel for the Appellant is that the Respondent did not place before the court enough materials to justify the award of maintenance made by the court. By his argument, since the court did not know the income and earning capacity of the Petitioner and her spouse, it cannot be in a position to make justifiable order of maintenance.

In making an order for maintenance, the court must always have regard to the means, earning capacity and the conduct of the parties to the marriage and other relevant circumstances. In DAMULAK v DAMULAK (2004) 8 NWLR (Pt. 874) 151, it was held that all the other relevant circumstances which the court may consider in ordering maintenance, may include standard of living to which the parties are accustomed, the requirements of the wife and even the public interest or demand.

In the instant case, other than the fact that the Respondent claimed that the only child of the marriage is a princess, there is no discernable pattern as to how the parties lived. Owing to the paucity of evidence as to the actual earning power of the Appellant, the Supreme Court reduced the award made from N75,000.00 to N40,000.00, subject to an upward review based on inflationary trends in the country. The said sum of money is to be paid until the child attains the age of twenty-one years, or upon the completion of her education in a higher institution of learning.

On the issue of custody, learned Counsel for the Appellant described what was granted to the Respondent as permanent custody through the life of the child.

By virtue of Section 70(4) of the Matrimonial Causes Act, the power of the court to make an order of maintenance of the child or children of the marriage shall not be exercised for the benefit of a child who has attained the age of twenty-one years unless the court is of the opinion that there are special circumstances justifying the making of the order in that regard.

In view of the fact that there was no special circumstances or reason to justify the order of custody made by the trial court and affirmed by the Court of Appeal, the Supreme Court varied the said order and restricted same to when the child attains the age of twenty-one years. Appeal allowed in part.

Representation:
Chudi Obieze with Udoka Odiamma, Ofuneka Osotule, Nnamdi Phil-Ebosie, F.O. Aniweta and Uche Arah for the Appellant. Chief O. Ugola SAN with F.A.R. Obi for the Respondent.

Reported by Optimum Publishers Limited (Publishers of Nigerian Monthly Law Reports (NMLR)