Dr. Timothy N. Menakaya Vs Ann Okwuchukwu Menakaya (2001)

LAWGLOBAL HUB Lead Judgment Report

MOHAMMED, J.S.C.

This appeal came up for hearing on Tuesday the 3rd of July, 2001. After reading the briefs of argument and hearing the oral submissions of counsel this court unanimously allowed the appeal and dismissed the cross-appeal filed by the petitioner. This court, thereafter ordered that the petition and cross-petition be reheard de novo before another judge of the High Court of Anambra State. I then reserved my reasons for the judgment till today. I now give my reasons.

The petitioner, Dr. Timothy Ndubisi Menakaya was lawfully married to the respondent, Ann Okwuchukwu Menakaya on 21st July, 1979 at the Marriage Registry, Barnet, London, England. The couple cohabited at Barnet, London, England and Onitsha. There are three children of the marriage, Chinyelu Uchechukwu, born in June 1980, Chinedu Obiora, born in January, 1982 and Obianuju Ifeoma born in October, 1983.

On the 15th of January, 1993 Dr. Timothy Menakaya, hereinafter referred to as the petitioner, in this judgment, presented a petition to the High Court of Anambra State in the Onitsha Judicial Division praying (from the court) for a decree of dissolution of his marriage with the respondent and for an order for the custody of the children of the marriage. His reasons for asking for the above reliefs are as follows:

“(a) That the marriage has broken down irretrievably

(b) That the respondent has been in constructive desertion for the past four years, in that ever since, the respondent has denied conjugal rights to the petitioner.

(c) That the respondent has ever since aforesaid refused even to talk to the petitioner and has completely abandoned all domestic responsibilities of a wife.

(d) That consequently the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent”.

On the 23rd of January, 1993 the respondent acknowledged that a copy of the petition had been served on her. In her answer to the petition the respondent denied being in constructive desertion. She also denied depriving the petitioner of conjugal rights. On the contrary, the respondent asserted that it was the petitioner who had shunned any physical contact, sexual or otherwise, with the respondent since May 1992. In January, 1992 the petitioner and the respondent attended the wedding ceremony of petitioner’s daughter by a previous marriage, named Chioma and they chatted together and took photographs. The respondent averred that in July 1992 she attended the Medical Women’s Association of Nigeria night together with the petitioner where the petitioner was installed as patron of the Association.

In December the petitioner barred the respondent from touching him. His two sons by his previous marriage, named Ndubusi and Kenechukwu joined the petitioner in making her life uncomfortable in the matrimonial home. On 8th January, 1993 the petitioner told his nephew P.O. Balonwu SAN to tell the respondent to pack out of the matrimonial home or he would throw her property out. He threatened that if she did not he would invite the dreaded “long juju” to show her the way out. This was the last straw. The respondent who is a Chief Magistrate by profession reported the matter to the police. When the couple could not be reconciled the respondent filed a cross petition based on the following particulars:

(i) The petitioner has since May, 1992, deprived the respondent of her conjugal rights including sexual intercourse;

(ii) Since 1992, the petitioner has refused to give the respondent money to cater for feeding and other household expenses. Instead, the petitioner has been sending the nurses at his hospital to buy foodstuffs for the household to the utter embarrassment and humiliation of the respondent;

(iii) On 1st January, 1993, the petitioner ordered the respondent to vacate the marital bedroom on the 3rd of January, 1993, or be ejected with force;

(iv) On 8th January, 1993, the petitioner gave the respondent till the 12th of January, 1993, to leave the matrimonial home or be thrown out by force. The respondent is living in the matrimonial home only because of the stand of the police;