An Interrogation of the Legal Threshold Required to Succeed in a Petition for Dissolution of Marriage – The Case of Ifenne Vs. Ifenne in Perspective

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By Adolphus Nwachukwu

“Shall I Compare thee to a Summer’s Day?

Thou art more Lovely and more Temperate:

Rough Winds do Shake the Darling Buds of May,

And Summer’s Lease Hath all too Short a Date:

So Long as Men can Breathe or Eyes can See,

So Long Lives this, and this gives Life to Thee”.[1]

Introduction

The above quotation from William Shakespeare’s Sonnets is really an exposition of the story of love at its best moments. It was a vintage Shakespeare’s presentation as a master of his craft.  Love they say is blind and lovers cannot see the pretty follies that themselves commit.[2] Love is the master of the heart. It speaks to and exposes the human emotions and its frailties. It shows how feeble the human person can be. It is sweet, though sometimes it can be bitter. Love is an enigma, difficult to factor and tricky to comprehend. Even the Holy Book shows that love is beautiful. It echoes love in its true element that: “bears all things, believes all things, hopes all things, endures all things”.[3]  For Christians, the Holy Week celebration revibrates the greatest of all love. The love which was epitomized by son of God using his hand to give himself to death[4]. In this sense, love carries the baggage of pain, death, suffering, anguish etc.

In this presentation, we shall look at the legal threshold for proof in a petition for dissolution of marriage. What level of proof is required from a petitioner when there is an answer to the petition and when there is no answer to the petition? Is it a walk in the park especially when the respondent did not file an answer or give evidence? Does the petitioner have the same burden of proof regardless of whether the respondent files an answer and/or gives evidence? Does the petitioner or cross-petitioner need to do more than proving or presenting the ingredients or grounds for the dissolution of a marriage? This is the crux of this paper having regard to what transpired in the case of Aderonke Olufunmilayo Ifenne vs. Elaigwu Daniel Ifenne.[5]

What Happened in the Case of Ifenne vs. Ifenne?

 “My Bounty is as Boundless as the Sea,

My Love as Deep; the More I Give to Thee

The More I have, for Both are Infinite.”[6]

The above lines were how Juliet declared her deep-rooted, steadfast, and everlasting love for her sweetheart, Romeo, in one of their famous balcony scenes in the play Romeo and Juliet. It is a love story that resonates and transcends human comprehension. This must be how Mr. and Mrs Ifenne started their love story. Mr. Ifenne must have said about Mrs. Ifenne: “She’s beautiful, and therefore to be wooed; she is a woman, and therefore to be won”. [7] Mrs Ifenne must have replied to her man in these precious words: ‘I will make my heaven in your arms’.[8] But just like every good thing in life, it does not last. The turbulence and wild wind of life always finds a way to disrupt and destroy the rhythm of time. And So, Mr. and Mrs Ifenne decided to breach their solemn contract of marriage. They reneged on their agreement to love each other till death do them part.

Mrs Ifenne found anchor at the High Court of Oyo State at its Ibadan Judicial Division. It is her right to do so in Oyo State or any State of the Nigerian Federation. The law allows her to forum shop. Like the biblical Joseph, Mr. Ifenne gave his benediction for the dissolution of their marriage. He declared so by stating that he had no objection to the petition filed by his lovely wife. This was the crescendo of the war in the family of Mr. and Mrs. Ifenne. Both couples must have said to each other: “excellent wretch! Perdition catch my soul, but I do love thee, and when I love thee not, chaos is come again”. [9] Thus, the case at this stage was a tour de force for Mrs. Ifenne. Her day of liberation was drawing near. She can see her promise land of freedom.

Likewise, to worship in the shrine of the law, Mrs. Ifenne gave her evidence before Honourable Justice O.M. Olagunju of the High Court of Oyo State. She identified Mr. Ifenne as her husband, stated the date and place of their marriage which was at the famous but notorious marriage registry at Ikoyi, Lagos State. She tendered her marriage certificate which was admitted in evidence without objection by Mr. Ifenne’s Counsel. The marriage for her had ended. She was only waiting for the Court to put a nail in the coffin of the marriage. Mrs. Ifenne stated that they lived in Lagos after their marriage between 2014 to 2017 when cohabitation stopped. The rest they say is history.

The crux of Mrs Ifenne’s case was that the marriage should be dissolved because they had leaved apart for 3 years because they stopped living together since 2017. Thus, cohabitation had become history and there was no need to flog a dead horse. With the above evidence, Mrs. Ifenne closed her examination in chief. For obvious reasons, Mr. Ifenne was not prepared to cross-examine his dear wife. He was not prepared to open his defence and probably the obvious cankerworm that may come out of the pandoras box of their marriage. Hence, trial was closed, and the case adjourned for filing and adoption of final written addresses. Based on the evidence on the record, Mrs Ifenne’s Counsel addressed the Court. Learned Counsel stated that the petition was predicated on Section 15(2)(f) of the Matrimonial Causes Act (‘MCA’)[10], stated that parties had lived apart for more than three years and that the petition is unchallenged by Mr. Ifenne. At this stage, the whole exercise seemed like a work in the park. It was a ‘slam dunk’ to borrow the famous words of the former United States of America’s Director of Central Intelligence Agency (‘CIA’), George Tenet[11].

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Judgment of The Court

Just like life, everything that has a beginning must have an end. The judgment day came on 12 March 2021 just three days before the ides of March (Idus Martiae) which was 15 March 2021. My Lord, Justice Olagunju was to have the final say. Just like the saying, man proposes, and God disposes, my Lord had other ideas. The Honourable Court was of the view that though the thrust of the petition was living apart for more than three years, no evidence was led by Mrs. Ifenne to establish what happened that led to the cessation of cohabitation. My Lord was of the view that the evidence led by Mrs. Ifenne was not in tandem with human behaviour. Thus, Mrs Ifenne can tell her story to the Marines.[12]

 The Court was not deterred by the fact that the petition was not opposed by Mr. Ifenne. It is justice according to the law. The Court was of the view that since Mrs. Ifenne was seeking for a declaration, it cannot be granted to her based on the admission of Mr. Ifenne. Rather, Mrs Ifenne had to succeed based on the strength of her own case not on the weakness of Mr. Ifenne’s case.[13] Thus, in the Honourable Court’s view since Mrs. Ifenne did not adduce cogent, compelling, and convincing evidence, the Court cannot dissolve her marriage to Mr. Ifenne. By these proclamations, Mrs. Ifenne’s joy was short-lived. She must have been in limbo about where and how to start anew.

 Was the High Court of Oyo State Right in its Judgment?

There is no doubt that the Honourable Court identified the thrust of the petition, which was the lack of cohabitation for three consecutive years. However, my Lord got offended because Mrs. Ifenne did not lay a proper evidentiary foundation on what happened that led to the cessation of cohabitation. Thus, it was not a case that facts were not pleaded to support the petition. It was not the case that evidence was not led to support the facts pleaded. It was not the case that the Mr. Ifenne did not indicate that he was not opposed to the dissolution of the marriage. Mrs Ifenne’s civil wrong was in not stating what led to the cessation of cohabitation or living together between her and Mr. Ifenne. The judgment seems harsh, but this writer had been warned not to judge a book by its colour.

What is the State of the Law?

In the case of Omotunde vs. Omotunde[14] the Court of Appeal held that the standard of proof in matrimonial matters is as embodied in Section 82(1) of the MCA. The section requires that for the purposes of the Act ie MCA, a matter shall be taken to be proved if it is established to the reasonable satisfaction of the Court. What is reasonable satisfaction of the Court is difficult to define. However, Section 82(2) of the MCA tied the phrase ‘reasonable satisfaction of the Court’ on the facts or ground to be proved. The Court of Appeal was of the view that it entails adducing all available evidence in support of an assertion before the trial court.

Also, in the same case of Omotunde vs. Omotunde,[15] it was also held that by virtue of Section 15(2)(f) of the MCA, a court hearing a petition for the dissolution of a marriage shall hold the marriage to have broken down irretrievably if the parties to the marriage lived apart for a continuous period of three years immediately preceding the presentation of the petition. It was further held that the provision is mandatory, and the Court has no discretion to exercise. In the view of the Court of Appeal, the law behind Section 15(2)(f) of the MCA as far as living apart is concerned is not interested in the right or wrong or the guilt or innocence of the parties. Once the parties have lived apart, the court is bound to grant a decree. Furthermore, since the point in contest before the trial Court was one relating to the interpretation of Section 15(2)(f) of the MCA which had been decided by the Court of Appeal in Omotunde’s case and are in pari materia with the Ifenne’s case, the trial Court ought to have followed it.[16]

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Minimal Proof required where a Respondent did not file an Answer and/or gave Evidence in a Case.

One intriguing aspect of the decision of the Court of Appeal in Omotunde vs. Omotunde[17] is that while Section 82(1) and (2) of the MCA led emphasis on the discretion of the Court by the importation of the phrases ‘reasonable satisfaction’ and ‘if the court is reasonably satisfied’, the Omotunde’s case held that the Court has no discretion. This is understandable because once there is uncontroverted evidence that the couples had lived apart for three consecutive years before the presentation of the petition, then there is no discretion to exercise. It will be a case of application of the law to the undisputed facts in the case. Again, the implication of the state of pleadings and the evidence led is that the evidence led by Mrs. Ifenne was not challenged and should have been allowed since minimal prove is required under these circumstances.[18] What is more, Section 55 of the MCA states that the Court may upon being satisfied of the existence of any ground in respect of which relief is sought, shall make the appropriate decree. This writer is of the view that the above provision has watered down the effect of discretion under Section 82(1) and (2) of the MCA.

In the case of Nwabuoku vs. Ottih (1961)[19] the Supreme Court held as follows:

“It is clear from his judgment that the learned trial Judge gave no consideration whatsoever to the appellant’s evidence before him; his evidence was not at any time rebutted by the defendant who did not go into the witness box to give evidence. The evidence of the appellant therefore stands uncontradicted. His evidence giving the terms of the transaction between him and the respondent was in terms of the writ. In the absence of any evidence in rebuttal, the appellant was entitled to judgment, and I am of the view that the learned Judge’s duty was to have entered judgment in his favour at the close of the respondent’s case…”

In the present case, the trial Court found that Mr. and Mrs Ifenne lived apart for a consecutive period of three years. Indeed, that evidence was neither denied nor controverted on the record. This writer is of the view that as at that stage, the legal threshold in terms of burden of proof was met by Mrs. Ifenne and should have been granted judgment by the trial Court.[20] The finding of the trial Court that Mrs. Ifenne did not lead evidence on what happened that led to the cessation of cohabitation is my view a case of giving Mrs Ifenne a burden she cannot carry. This is where the trial Court went off tangent with the greatest respect. This is because the level of proof when a respondent files an answer to a petition and gives evidence and when he chooses not to file an answer or give evidence are not the same. What is more, the burden of proof in all civil proceedings are discharged by the balance of probabilities[21] and not by proof beyond reasonable doubt.[22]

Besides, it was a case of making a volte face and approbating and reprobating, for the trial Court to find that the couples had lived apart for a consecutive period three years and still wants to know what led to the cessation of cohabitation.[23]  With all due reverence to the trial Court, this was a case of killing a fly with a sledgehammer.  What is more, what Mrs. Ifenne needed to do was to plead and prove that the marriage had broken down irretrievably and bring herself within the four corners of Section 15(2)(a-h) of the MCA. This she did by pleading and relying on Section 15(2)(f) of the MCA.[24] This is within the context of the facts that Mr. Ifenne could have led evidence to oppose the petition even though he did not file an answer to the petition.[25] Thus, though the fact that a respondent did not file an answer to a petition and give evidence is not a slam-dunk on the petitioner’s case. However, the petitioner requires minimal proof to satisfy the Court in such circumstances.

The corollary to the above argument is that a petition for dissolution of a marriage is a very solemn and difficult proceedings tied to public policy. Thus, the interest of the society at large had made it a deliberate policy to strike a balance between the sanctity of marriage and social considerations. This makes it contrary to public policy to insist on the maintenance of a marriage which had completely broken down before the petition was filed.[26] It is regrettable that the trial Court did not take into consideration this public policy concerns but was rather insisting on go his way which was the highway.

Besides, in citing and relying on the case of Eronimi v. Eronmi[27], the trial Court was rather trying to make a mountain out of a molehill with all due respect. This is because the facts and circumstances of the case of Eronimi v. Eronmi[28]  are different from the facts and circumstances of the present case. The Eronimi v. Eronmi[29] case had to do with a preliminary objection challenging an appeal based on the failure of the appellant to include the names and addresses of the 5th and 6th respondents as those affected by the appeal. It was upon these bases that the Court of Appeal held that it was a mere irregularity that cannot void a notice of appeal.[30] The case had nothing to do with a divorce petition or trial in a divorce petition.

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CONCLUSION

This writer is of the view that the trial Court confused its discretionary powers under Section 82(1) and (2) of the MCA with its duty to apply the law to an undisputed fact in the case of Mr. and Mrs. Ifenne. While a petitioner in a divorce matter must succeed on the strength of his own case, it must be noted that the petitioner requires minimal proof where there is no answer or evidence given by the respondent. Thus, where parties have demonstrated in clear times that their marriage has broken down irretrievably, there is no need to paper over the crack but to dissolve the marriage as provided by the law.

 RECOMMENDATION

There is no doubt that sometimes couples contrive to dissolve their marriage so that they can go their separate ways. However, each case must be treated on its own merits to see through the maze whether the parties are serious or out to deceive the Court. Again, it is enough stress for a petitioner to file for a petition for the dissolution of his or her marriage. Thus, the Court must exercise its discretion judiciously and judicially towards dissolving the marriage where the petitioner has proved his or her case. The idea of applying a strict interpretation of the law or raising the bar which makes it difficult for the petitioner to obtain the desired remedy, is counterproductive. In any event, the dismissal of the petition will not bring the couples together or prevent them from approaching the Court the second time. Therefore, in treating divorce petition of this nature, the Court must strike a balance between what need to be proved and what has been proved. Thus, if need be, the Court must apply the principle of cutting the Gordon Knotts in finding a solution to such intractable case.

 Adolphus  is of Mike Igbokwe (SAN) & Co.

 Footnotes

[1] See Shakespeare’s Sonnet 18, lines 1-4, 13-14.

[2] See Shakespeare’s Merchant of Venice – Act 2, Scene 6.

[3] See 1 Corinthians 13:7

[4] See Pange lingua gloriosi corporis mysterium a Medieval latin hymn written by Stain Thomsa Aquinas (1225-1274).

[5] See Unreported Suit No.WD/I/503/2020

[6]   See Shakespeare’s Romeo and Juliet – Act 2, Scene 1.

[7] See Shakespeare’s Henry VI Part 1 – Act 5, Scene 2.

[8] ‘Heaven in Your Arms’ is a song by the American musician-singer-songwriter Dan Hartman, released in 1981.

[9] See Shakespeare’s Othello – Act 3, Scene 3.

[10] Cap.M7 Laws of the Federation of Nigeria, 2004 as updated in 2010.

[11] Mr. Tenet called the intelligence that Late Saddam Hussein had Weapons of Mass Destruction (‘WMD’), a ‘Slam Dunk.’

[12] See the Comedy Film ‘Tell it to the Marine’ directed by George Hill released first on 29 January 1927.

[13] See Odife vs. Aniemeka (1992) 7 NWLR (Pt.251) 25; Owoyemi vs. Adekoya (2004) 7 WRN 1 at 22.

[14] [2001] 9 NWLR (Pt.718)252at 284, paras. B-C(C.A.)

[15] (Supra) 284D-E.

[16] See Unilag vs. Olaniyan [2001] FWLR (Pt.56) 778 at 786, Ratio 5 (S.C.); (1985) 1 NWLR (Pt. 1) 156 at 165 (S.C.), Ibodo vs. Enarofia (1980) 5-7 S.C. 42 at 50 and 57; Ogwe & Anor. vs. I.G.P. & 2 Ors. (supra) at 113; Chiadi v. Aggo [2018] 2 NWLR (Pt.1603)175 at 223-224H-A(SC).

[17] Note 12 supra

[18] See Ebe v. Nnamani (1997) 7 NWLR (Pt 513) 479 at 501A-B; Imana v. Robinson (1979) 3-4 S.C. 1 at 22; Ezeanya vs. Okeke (1995) 4 NWLR (Pt.388) 142.

[19] ALL NLR 507 at 511

[20] See Sections 131, 132 and 133 of the Evidence Act, 2011.

[21] See Section 134 of the Evidence Act, 2011.

[22] See Miller v. Minister of Pensions [1947]2 ALL ER 372 at 374, para.A per Denning J.; Laws of Matrimonial Causes – S.A. Adesanya pgs.193-194

[23] See, CBN vs. Aribo [2018] 4 NWLR (Pt.1608) 130 at 168B-C, 170-171G-A(SC); A.G., Rivers State v. A.G., Akwa Ibom State [2011] 8 NWLR (Pt.1248) 31 at 99D-H; 129E-H.

[24] See Ekebe vs. Ekrebe (1999) 3 NWLR (Pt.596) 514; Akinbuwa vs. Akinbuwa (1998) 7 NWLR (Pt.559) 661; Bibilari vs. Bibilari [2011] 13 NWLR (Pt.1264) 207 at 234F-H (C.A.).

[25] See Towoeni vs. Towoeni [2001] 12 NWLR (Pt.727) 445 at 457E-F, 457-458H-A (C.A.).

[26] See Williams v. Williams [1966] NSCC  19 at 24, Blunt v. Blunt (1943) 2 ALL ER 76

[27] (2013) 14 NWLR (Pt.1373) 32 at 47-48 (CA).

[28] (supra) note 17.

[29] (supra) ibid.

[30] See Jalbait Ventures (Nig.) Ltd. vs. Almajir (2010) 7 NWLR (Pt.1193) 292 at 308(CA); Osigwelem v. INEC (2011) 9 NWLR (Pt.1253) 425 at 441(CA).

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