Joseph O. Falobi V. Elizabeth O. Falobi (1976)

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IDIGBE, JSC (Delivering the judgment of the Court): FATAYI-WILLIAMS, JSC:

In an application filed in the High Court of the former Western State sitting in Ibadan, the plaintiff, now respondent, complained that the defendant, now appellant, had willfully neglected to provide reasonable maintenance for her and for their four children.

The parties were married on the 9th day of September, 1964, in the Magistrate’s Court Marriage Registry at Ibadan. At the time of the application, there were four children of the marriage namely, Kikelomo aged eight years, Olufunlola aged six years, Kolawole aged four years, and Bolarinwa aged three years.

The heading of the application reads:- “Section 6 of the Matrimonial Proceedings and Property Act 1970, Rule 98 of the Matrimonial Causes Rules, 1968. Originating Application on ground of Willful Neglect to   “5(a). Respondent deserted me and the said children of the marriage on/or about 27th August, 1970. (b) That by the aforementioned respondent’s desertion in (a) above, I had to assume responsibility for rent £12.10.0d, feeding of myself, the children of the family monthly at the rate of £40 and also clothe myself and the said children of the family at an estimated cost of £80 and £130 per annum respectively …… .……………………….. (g) The respondent has formed a settled intention of permanently staying away from the matrimonial home and the family. (h) The respondent spends all his salary of over £1,500 on himself and his girl friends only.  (i) That my salary of £1,422 is not adequate to cope with my family commitments unless the respondent augments it by maintaining me and the four children of the marriage.  

6. The respondent has not made any payments to me by way of maintenance for myself or the said children of the marriage. 7. My means is as follows: (a) Annual salary of £1,422 as Research Officer in the Western State Ministry of Agriculture and Natural Resources, Ibadan 8. To the best of my knowledge and belief, the respondent’s means are as follows: – (i)  Annual salary of over £1,500. (ii) Research grant from the Federal Government of Nigeria at the University of Ibadan the amount of which is unknown to me.”

The defendant filed a counter-affidavit in reply to the plaintiff’s affidavit. In it, he denied that he derived an income of over £1,500 from his employment and stated further that his gross income for each of the last three years w £792 in 1969, £804 in 1970, and £924 in 1971. He also stated that his expenditure per month is £88.2.6d. He swore with respect to the plaintiff income as follows:-

“13. That the applicant to the best of my knowledge, information and belief, owns a motor car and derives a monthly income of £133.10.0d from her employment as a Research Officer with the Western State Ministry of Agriculture and Natural Resources, Ibadan. I put her to strict proof of her income and assets from all sources.”

We think we should point out at this stage there was no matrimonial cause or proceedings concerning the parties pending before any court at the time the application was made. Moreover, the Matrimonial Proceedings and Property Act, 1970, under which it was brought, is an English Statute, some sections of which came into force on 1st August, 1970, while the other provisions came into force on 1st January, 1971. Both dates, it will, be recalled, are subsequent to 17th March, 1970, the date on which our Matrimonial Causes Decree came into force.   After hearing the arguments put forward by learned counsel for both parties, the learned trial judge, in a reserved ruling, granted the plaintiff the custody of the four children. On the question of maintenance, the judge, after reviewing the facts sworn to in the affidavit and counter-affidavit, rejected the facts in the affidavit sworn to by the defendant. He then found as follows:-

“The applicant gives her annual salary as Research Officer in the Western State Ministry of Agriculture and Natural Resources as £1,422. I prefer this to the respondent’s allegation that the applicant earns £133.10.0d per month without giving the source of his information.   The respondent has not been sufficiently honest about the disclosure of his incomes and it is difficult to believe him. I accept the applicant’s averments that the respondent’s annual income is over £1,500. One would have liked to give consideration to the respondent’s expenditures, but have again his story is difficult to believe as I have earlier observed.   In my view, the circumstances surrounding the respondent’s motor accident and the attendant expenses, though unfortunate, have nothing to do with the respondent’s obligation to his children.   The applicant claims that she spends £40 per month for the feeding of herself and the children. This does not appear unreasonable and I think she should be spending about £30 of this on the four children, i.e. about £7.10.0d per child per month. She claims she spends £130 per annum for the children’s clothes, this works out at £32.10.0d per child, i.e. about £3 per child per month. She pays £3 per month for a maid and £3 per month for a house-boy. She needs the services of these servants for herself and her children and the respondent should be made to make a contribution of about £3 per month in this respect.   In all the circumstances of this case, I consider the sum of £10 per month as reasonable maintenance for each of the four children. I hereby order that commencing from the 1st of April, 1973, the respondent shall pay to the applicant for the benefit of each of the four children of the marriage the sum of £10 per month for as long as they remain in the custody of the applicant. This amounts to £40 per month. This does not include the school fees which I also order the respondent to pay regularly from his own income.   I make no order for maintenance for the applicant.”

At the hearing of the appeal to the now defunct Western State Court of Appeal against the ruling, learned counsel who appeared for the appellant (i.e. the husband) contended that the Matrimonial Proceedings and Property Act, 1970 is not applicable to an application which is not an application in a matrimonial proceeding, and that even if it is applicable, it  ceased to apply by virtue of the provisions of sections 1, 8, and 115(4) of the Matrimonial Causes Decree, 1970. In reply, learned counsel for the wife (that is, the respondent) said:-

“I agree that the application was brought under English Law. I agree that English Law does not apply to Matrimonial Causes but this is not a Matrimonial cause. The High Court by virtue of the Infants Law Cap. 49 W.N.L. ………………… See sections 12 and 13.”

In the judgment of the Western State Court of Appeal dismissing the appeal, the court, when dealing with the arguments as to which law is applicable, observed: –   “In reply, Mr. Afe Babalola, learned counsel for the respondent agreed that the application was brought under the English Act and that English Law does not apply to Matrimonial Causes. He however submitted that the application is not a matrimonial cause or matter. He referred to sections 12 and 13 of the Infants Law under which, he submitted, the Court had jurisdiction.”   The Court of Appeal then went on to hold, rightly in our view, that the application is not a matrimonial cause under the Matrimonial Causes Decree, 1970, and is therefore not one that is prohibited by virtue of section 1(1) of the said Decree from being instituted other than under the said Decree. The court then observed that the trial judge “entertained the application under the English Act of 1970, under which it was brought.”   On the concession made by learned counsel for the respondent that the application had been brought under the wrong law and that the Infants Law of the former Western State of Nigeria is the law applicable, the Court of Appeal observed:-

“With all respect to the learned counse1 we think he is in error. While the sections refer to custody of a child, and maintenance of the child, nothing is said about maintenance of a party to the marriage. They therefore do not cover such proceedings as that for the maintenance of a wife. But the present application included one for the maintenance of a wife and to that extent therefore, it could not have been entertained under sections 12 and 13 of the Infants Law.”   In the course of his argument before the Court of Appeal, learned counsel for the appellant also submitted that the trial judge was in error in acting on conflicting affidavits without inviting the parties to call oral evidence either by themselves and/or by witnesses to resolve the conflicts on the facts before the court. With respect to this submission, the Court of Appeal said:-   “Mr. Fawehinmi asked us to consider his submissions on these grounds on the assumption that the Matrimonial Causes Decree, 1970, applies. Since he did not make any submission in the alternative, if the said Decree does not apply the submissions are irrelevant. In view of our conclusion on Ground 1 that the Matrimonial Causes Decree, 1970 does not apply, we have nothing more to say than that these grounds do not succeed.”

In the further appeal to this court against the ruling of the trial judge and its confirmation by the Court of Appeal, the points canvassed before us would require answers to the following questions. Does the English Matrimonial Proceedings and Property Act, 1970 apply? If it does not, what law is applicable and has the High Court jurisdiction to apply that law? Irrespective of what law is applicable, was the learned trial judge in error in granting the plaintiff/respondent’ application for the custody of the children and for their maintenance as he did without asking the parties to call oral evidence, notwithstanding the apparent conflicts in the affidavit and counter-affidavit?   In our view, both the learned trial judge and the learned justices of the former Western State Court of Appeal were in error in holding that the Matrimonial Proceedings and Property Act, 1970 – an English Statute which came into force after our Matrimonial Causes Decree had come into force – is applicable to the plaintiff/respondent’s application for the custody of the children and for their maintenance.