The Requirement Of Non Condonation, Connivance And Collusion In Matrimonial Causes Petition: What Constitutes Condonation For The Purpose Of Section 26 Of The Matrimonial Causes Act?

By Emmanuel N. Jonathan

Every marriage entered into under the matrimonial Causes Act enjoys certain privileges as well as statutory protection and general recognition. Some of the privileges of a statutory marriage include but are not limited to the following:

1. Ability to own and transfer property without tax burdens and implications to spouse;
2. Legal right to have a spouse stand in as next of kin;
3. Legal right to certain health insurance benefits;
4. The protection afforded to the birth of a child in the marriage;
5. The legal right to be entitled to certain work leaves and benefits;
6. National and international recognitions which give rise to certain privileges which unmarried people do not enjoy. These include for example, the compulsory National youth service scheme which makes special arrangement for married persons as regards their states of posting so as not to be separated from their spouses; the application process for international visas which give consideration to married couples.

While the above are instances of the benefits stood to be enjoyed by parties to a statutory marriage, a statutory marriage also carries with it attendant obligations. These include the specific union of one man and a woman for life to the exclusion of all persons –Hyde v. Hyde (1866) LR1, section 18 of the Interpretation Act and Section 69 of the Matrimonial Causes Act (herein after the MCA). Hence the abrogation of any of these obligations purports to put a marriage in abeyance pending when an aggrieved party proceeds to court. The most common of these obligations to be abrogated often is the obligation of parties to stick singly together for the enjoyment of the matrimonial bed. Often this occurs in the form of adultery. It is very natural for a spouse who has been cheated upon to feel angered, aggrieved and vengeful.

To save the state of having to deal with aggrieved persons committing emotional offences (e.g. is the recent case of Maryam Sanda where the accused purportedly stabbed her husband to death over infidelity issues, as well as the circumstances in Mbanege Shade v. The State [SC.184/2004] to mention a few) a conduit was provided for departing from such failed marriages. But also to forestall a situation where every simple altercation in a marriage will lead to a walking out the door, the MCA in Section 15 (1) delimited the circumstances in which dissolution (or a divorce) is permissible.

While there is only one ground for dissolution (that the marriage has broken down irretrievably) the circumstances warranting such ground were outlined in section 15 (2) MCA. These include:

1. That the respondent has wilfully and persistently refused to consummate the marriage;
2. That since the marriage, the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;
3. That since the marriage the respondent has behaved in such a way that the petitioner cannot be reasonably expected to live with the respondent;
4. That the respondent has deserted the petitioner for a continuous period of at least one year immediately preceding the presentation of the petition;
5. That the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition and the respondent does not object to a decree being granted;
6. 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;
7. That the other party to the marriage has, for a period of not less than a year, failed to comply with a decree of the restitution of conjugal rights under the Act.
8. That the other party to the marriage has been absent from the petitioner for such time and in such circumstances as to provide reasonable grounds for the presumption of death. (By virtue of section 164 of the Evidence Act, a person will be presumed to be dead if after seven years he/she has not been seen or heard from).

As already mentioned, the aim of the above sub grounds is to restrict the window within which marriages may fly off in dissolution. Once an aggrieved party to a marriage has a case within any of the above circumstances, such a party approaches either the court directly or through a legal practitioner.

Once the petition has been filed in court and assigned a number, the procedure and proceedings begin which if sastisfiable evidence is led will end in the court granting the relief sought. First the court grants an order nisi (which lasts for three months) and then an order absolute (after the lapse of the order nisi). Once the Order absolute is made, the parties stand divorced. No appeal can be made against such an order absolute by virtue of Section 241 (2) (b) of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended).

The vehicle through which an application for divorce can be brought is a petition. A typical petition is accompanied by certain documents to wit:

1. Notice of Petition
2. Copy of Marriage Certificate
3. Acknowledgment of Service
4. Verifying Affidavit
5. Certificate relating to reconciliation (see generally Order V Rule 28 (1)(a) Matrimonial Causes Rule, Order V Rule 27 (1) & (2), Order VI Rule 3, Order V Rule 10 (1) and Order II Rule 2.

The interesting fact is that all these forms are set out in the Matrimonial Causes Rule e.g. The Notice of Petition as in Form 8, 8A, 9 or 10; Certificate relating to Reconciliation as in Form 3 or Form 3A.

The content of the petition sheet which is the engine of the suit contains among other requirements the paragraphs for the details of the parties, the marriage, children of the marriage, amongst others. The gravamen of this paper lies in the paragraph which contemplates non –condonation, connivance and collusion. The essence of this paragraph is to show that the petitioner in no way connived, condoned or colluded with the respondent on the grounds for which the petition has been brought for the divorce.

The gist therefore is what is condoning? To what extent can a matrimonial misconduct be overlooked by the petitioner so as not to constitute condoning?

While the issues of collusion and connivance are more positive acts which can be easily determined from a set of facts, the issue of condoning on the other hand is a microscopic affair which might be a little more difficult to prove. It could be easily canvassed one way or the other by either of the parties. In essence, while it is easier to prove collusion (the active participation by the petitioner in the circumstances which ground the application for the divorce) and connivance (an active consortium between the petitioner and the respondent to bring the petition for divorce), it is more difficult to prove condonation (the overlooking or the forgiving of the act which grounds the petition by the petitioner).

The essence of establishing the meaning and purpose of condonation in a petition cannot be overstated. This is because the mere presence of condonation in the application process may be taken as a hint that the parties (especially the petitioner) are not ready to let go of the marriage. Hence it may serve as the driving force to deny the petitioner of his request as court held in Obafemi v. Obafemi (1965) 1 NWLR 446.

Therefore what constitutes condonation? Can we say that a wife or a husband who has been aware of his wife or husband’s infidelity for a period of time without taking legal steps has condoned the act? Can we say that such petitioner can no longer come to the altar of justice with the long knife of the petition to sacrifice and receive judicial drops of justice?

Granted that adultery for instance is one circumstance which must be shown to be intolerable to the petitioner and not just the mere act (see section 15 (2) (b) MCA, Goodrich v.Goodrich [1971] 1NWLR 1142; Fajembola v. Fajembola [1973] 12 CCHCJ 1873) yet at what point can it be said that the petitioner started finding the act tolerable vis –a –vis the petitioner condoning the act? Or how long can a petitioner remain with the respondent before bringing the petition so as not to be seen or heard to be condoning? All of these issues are the questions which this paper attempts to answer.

An interesting case is the case of Etebu v. Etebu (2018) LPELR -46250 (CA). At the trial court, the petitioner sued the respondent for a decree of nullity of a void marriage on the ground that there was an already existing marriage between the Respondent and one Mr Connelly of Manchester, in the United Kingdom. The Respondent cross petitioned and held that the petitioner could not claim for decree of nullity because he was aware and had condoned the knowledge of the previous marriage of the respondent to the said Mr Connelly.

The trial court relying on section 26 of the Matrimonial Causes Act and the case of Nigerian Army v. Aminu Kano (2010) 5 NWLR (Pt. 1188) 429 @437 held in favour of the respondent that indeed there was a condonation. The trial court therefore struck out the petitioner’s case and dismissed the application for a nullity while acceding to the reliefs sought by the respondent/ cross petitioner. The decision of the court was based on the combined principles of estoppel and admission on the one hand and section 26 of the MCA on the other.

Dissatisfied with the ruling of the High Court, the petitioner/ cross respondent appealed to the Court of Appeal. At the Court of Appeal, the appellate court ruled in a considered judgement, relying on Onamade & Anor v. ACB Ltd (1997) LPELR, Oyedele & Ors v. Roberts & Ors (2015) LPELR, as well as Section 3 (1) (a) of the MCA that the trial court was wrong to have relied on the principles of equity to give life to what was never alive. The court went on to hold that the mere condonation or knowledge of the previous marriage by the Petitioner/Appellant did not in any way give life to a marriage which was void ab initio. The Court of Appeal set aside all the findings of the trial court and gave Judgement in favour of the Petitioner/Appellant.

The appellate court went on to reaffirm the definition of condonation as was espoused by the Supreme Court in the case of Aminun Kano v. Nigerian Army (Supra) per Muhammad JSC as literally meaning to forgive, to pardon, to overlook (see also Obafemi v. Obafemi [supra]). The courts went beyond the definition of condonation to also hold that condonation robs the petitioner of the right to enjoy the reliefs sought.

Section 26 of the MCA is clear. It expressly provides as follows: Except where Section 16 (1) (g) of this Act applies, a decree of dissolution of marriage shall not be made if the petitioner has condoned or connived at the conduct constituting the fact on which the petition is based. (see the cases of Igbinedion v. FRN (2014) LPELR 22766, Romrig Nig. Ltd v. FRN (2014) LPELR 22759 as well as Obafemi v. Obafemi [Supra])

Having seen from the above statutory and judicial principles that Condonation is tantamount to pardon, overlooking, forgiving etc. with the attendant effect that the relief sought will be thrown out the window, the big question therefore is, at what point in time can be it said that an overlooking, forgiving or pardoning became a condonation?

To answer this question we turn to the English case of Martins v. Martins (1931) 10 NLR 92 where the parties were married for a certain number of years without children. The respondent brought in another woman into the matrimonial home and fathered two children with the new woman. Up until sometime before the delivery of the second child by the new woman, marital relationship still continued between the petitioner and the respondent. Kingdom CJ ruled that the continuation of the petitioner in the matrimonial home despite her knowledge of the presence of the new woman did not amount to condonation.

Therefore what constitutes condonation? While it has already been established that condonation is the act of forgiving a spouse’s matrimonial misconduct, it goes beyond that to include a restatement. An essential element of condonation is that the overlooking party must have all the details. Where certain details are not known to him or her, there can be no condonation. Therefore condonation is an act which must be positive and must involve all the parties. In summary, condonation is resumption of marital relations after knowledge of a marital offense(s) on the promise that such offense(s) will not happen again.

It has been argued elsewhere that once the petitioner overlooked the action(s) of the respondent for a period of time that that is sufficient condonation. However this paper begs to disagree vehemently.

It is the position of this paper that a liberal interpretation should be given to section 26 of the MCA so that condonation can only be said to occur upon the repeated forgiveness, overlooking and continued existence of matrimonial relations with the erring spouse only as far as the aggrieved spouse elects to so remain in the marriage. In essence, if a petitioner overlooks a certain spousal misconduct (which can lead to dissolution) up until a certain period of time and then decides, this is it, I cannot tolerate it anymore, notwithstanding that the parties will have continued on after the knowledge of the misconduct, there should be said to be no condonation.

It is the argument that a mere collection of facts should not be easily interpreted to mean condonation. This is because a party who is aggrieved but wants to give the marriage a second chance may be cowed into rushing into dissolution so as to avoid being barred later from enjoying this legal relief should it really become pertinent. If the above occurs, then the very essence of the MCA will be lost as marriages will be sacrificed at a rather frightening speed on the altar of divorce for fear of being seen to be condoning.

It is the humble suggestion of this paper that our Nigerian courts should adopt the position of the British courts in Martins v. Martins (Supra) (as well as similar cases) to look beyond the mere collection of facts and acts to rather, the intent. Let the court distinguish between were the aggrieved petitioner was trying hard to save an already sinking ship from where the petitioner was being indifferent and legally lazy. The import of answering this question one way or the other will go a long way in saving many marriages, while at the same time striking a balance of giving genuinely aggrieved petitioners a way out of what will otherwise be a living hell. It is the humble suggestion of this paper that when parties are aware that there will be no hindrance later if they opt for dissolution (if it comes to that) with regards to been seen as condoning, then parties will try to give the marriage a second, and perhaps a third chance.

In conclusion, it is the submission of this paper that court should adopt a more expansive approach to the interpretation of section 26 of the MCA with regards to condonation. If need be, the court should look beyond the prints of ink of that paragraph on the petition sheet. If need be, the court should consider extrinsic evidence (especially oral testimony of parties, relations and close friends). If this is done, the courts will have succeeded in being a temple of law and equity where parties will have a full of the ever abundant repository of justice.