Lawrence Olu-Ibukun & Anor v. Adesola A. Olu-Ibukun (1974)

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FATAYI-WILLIAMS, J.S.C. 

In Suit No. WD/32/72 filed in the Lagos High Court, the petitioner, now respondent, petitioned for the dissolution of her marriage to the respondent. In the said petition she also payed inter alia,

“that she may have alimony pending suit, maintenance, maintenance for the children, and a secured provision.”

Paragraphs 8, 10(c) and 11 of the Petition read:

“8. That the respondent who is a physicist and educationist and former don at the University of Ibadan and holder of a Ph.D. degree is at present Chief of Mission for Africa under U.N.E.S.C.O. and earns a basic salary of over 10,000 (tax free) in terms of Nigerian currency.

10(c) At present the respondent does not maintain the petitioner at all and in so far as the children of the marriage are concerned he only pays their school fees.

11. That the marriage between the petitioner and the respondent has broken down irretrievably.”

While admitting in his Answer to the Petition that the marriage has broken down irretrievably but for different reasons, the respondent, now appellant, denied that he earned a basic salary of 10,000 or over in his employment. He then averred further in paragraphs 21 to 25 of his Answer as follows:

“21. That persons in the petitioner’s profession and with her experience are in high demand and she could easily obtain employment but has deliberately abstained from being employed in the nursing profession solely to claim money from this suit but she nevertheless engages in business with her mother.

22. That the petitioner was engaged in the nursing profession during her stay in Kenya with the respondent.
23. That the respondent’s present overseas pay is about 5,000 per annum inclusive of allowances of which only a maximum of 1,000 is payable and transferable to Nigeria.
24. That the respondent’s present contract expires in May, 1972.
25. That the respondent’s last full time salary in Nigeria was 1,400 and his present pay is because he is serving outside his country of birth.”

An affidavit of means in which he gave more details about his income and about the income of the petitioner was attached to the Answer. The petitioner filed a counter-affidavit in reply. In this she denied the averments in the petitioner’s affidavit and gave details of her own income.

The application for the ancillary reliefs prayed for in the petition was duly heard on 26th June, 1972. It seems to us, after a perusal of the notes made by the learned trial judge at the hearing, that learned counsel on both sides had argued the application on the basis that an application for alimony pendente lite and one for maintenance are one and the same, and also that an order in respect of the former could be made in the present proceedings.

In his ruling on the application, the learned trial judge observed, inter alia, as follows:

“The jurisdiction of the Court to order the payment of alimony pending suit is by no means in doubt. The position is clearly stated in Volume 12 Halsbury’s Laws of England 3rd Edition p. 346 at paragraph 733 where the following statement of the Law appears:-

‘On any petition for divorce or nullity of marriage judicial separation or restitution of conjugal rights, the Divorce Division of the High Court has power to make such interim orders for the payment of alimony to the wife as the Court thinks just.’

This power is exercisable even where there is clear evidence of the wife’s adultery.”