A Critique of the Nigerian Law of Divorce under the Matrimonial Causes Decree 1970

C. U. Ilegbune

doi:10.1017/S002185530000485X

² For which, see Kasunmu & Salacuse, Nigerian Family Law, 1966, and Bromley, Family Law, 3rd ed., 1966.

³ “Marriage” in this sentence includes statutory marriage and Christian marriage (both monogamous) and also customary marriage and Moslem marriage (both potentially polygamous). All four types of marriage are recognized in Nigeria. However, elsewhere in this article, except where otherwise stated or implied, the word “marriage” will be restricted only to the two monogamous types of marriage, for these are the only ones covered by the M.C.D. 1970, and its predecessor in Nigeria, the English Matrimonial Causes Act, 1965; see M.C.D., s. 114 (6). For an explanation of the four types of marriage named above, see Kasunmu & Salacuse, op. cit. p. 48, and for a definition of “Christian marriage” in particular, see Legitimacy Act, 1929 (No. 27 of 1929), s. 2, and Hyde v. Hyde and Woodmansee (1866) L.R. 1 P. & D. 130, 133, per Lord Penzance. Coker, in his Family property among the Yorubas (1958), 247, sees no distinction between a Christian marriage and a statutory marriage, but Kasunmu & Salacuse, Ibid., 48, recognize a distinction and they say such a distinction is important for purposes of succession.

⁴ Decree No. 18 of 1970, published in the Federal Republic of Nigeria Official Gazette, No. 15, Vol. 57 of March 20th, 1970.

⁵ Ordinance No. 10 of 1863.

⁶ Divorce (or dissolution of marriage) is a matrimonial cause. For a definition of matrimonial causes, see s. 114 (1); cf. the definitions in the English Supreme Court (Consolidation) Act, 1925, s. 225, and the High Court of Lagos Act (cap. 80), s. 2. It appears that the definition in the Decree has added new dimensions to these earlier definitions.

⁷ March 17th, 1970; see the Matrimonial Causes Decree, 1970 (Appointed Day) Order, 1970, s. 1, L.N. 26 of 1970, published as supplement to the Federal Gazette of March 20th, 1970, op. cit.

⁸ Emphasis supplied.

^{page 179 note 1} State Courts (Federal Jurisdiction) Act, cap. 177, s. 4 [formerly cited as Regional Courts (Federal Jurisdiction) Act]; see also s. 16 of the High Court of Lagos Act, cap. 80, which contains similar provision in respect of the former Federal territory of Lagos.

^{page 179 note 2} See for example, Omole v. Omole 1960 N.N.L.R. 19; Adeoye v. Adeoye [1961] 1 All N.L.R. 792, at p. 794; Taylor v. Taylor (1935) 2 W.A.C.A. 348, at p. 349; Falohun v. Falohun (1944) 17 N.L.R. 108.

^{page 179 note 3} S. N. C. Obi, Modern family law in Southern Nigeria, 1966, p. 199; Kasunmu & Salacuse, op. cit., 8–13; Park, Sources of Nigerian Law, 17; Allott, “Marriage and internal conflict of laws in Ghana”, in Essays in African law, 216. cf. the wording of s. 4 of the State Courts (Federal Jurisdiction) Act and s. 16 of the High Court of Lagos Act with s. 16 of the Eastern Nigerian High Court Law, cap. 61, Laws of Eastern Nigeria, which as far as regional (now State) jurisdictions are concerned limits the applicable English law and practice to those in force on 30th September, 1960.

^{page 179 note 4} There were a few dissentient voices, like Godwin v. Crowther (1934), 2 W.A.C.A. 109, where Macquarrie, J., at p. III, refused to give that provision a timeless effect and preferred to limit its application to the law of England in force at the time the reception statute was passed. However this view was not favoured by the subsequent cases cited above, see n. 2 above.

^{page 179 note 5} Justifiable, because the English Parliament owed Nigeria no duty, moral or legal, to cater for the family law needs of the Nigerian people. The Nigerian Parliament had the competence in 1958, when the State Courts (Federal Jurisdiction) Act and the High Court of Lagos Act were passed, to enact independent family legislation that would take account of the social and other needs of the Nigerian people.

^{page 179 note 6} Kasunmu & Salacuse, op. cit.

^{page 179 note 7} Ibid., pp. 12–13.

^{page 180 note 1} Section 2.

^{page 180 note 2} Section 91 and s. 2 (1) (b). Courts of summary jurisdiction in Nigeria are magistrates' courts and (in the Northern States) district courts. In addition to the powers granted to these courts under these sections of the Decree, there is an implication in s. 1 (2) (a) that a State could confer jurisdiction on its courts of summary jurisdiction to make independent orders with respect (inter alia) to the maintenance of wives and children. If this is correct, it would represent a major advance in the law relating to this important relief. This, however, remains a moot point.

^{page 180 note 3} March 17th, 1970: see p. 178, n. 4.

^{page 180 note 4} Defined in s. 114 (1). It includes the dissolution of marriage or divorce.

^{page 180 note 5} Section 1 (1).

^{page 180 note 6} Section 98 (1). The old law still applies to these.

^{page 180 note 7} Section 8. However, the English Rules of Court in divorce proceedings will continue to apply to Nigeria until the Chief Justice expressly revokes them by making Rules of Court for Nigeria: s. 112 (1) and (4).

^{page 180 note 8} Cap. 177, Laws of Nigeria, 1958.

^{page 180 note 9} Cap. 80, Ibid.

^{page 180 note 10} But the common law principles will continue to apply by virtue of the common law reception clause embodied in the various High Court Laws: see, for example, the Law of England (Application) Law, cap. 60, s. 4, Laws of Western Nigeria, 1959.

^{page 180 note 11} A learned commentator in the Sunday Times of Nigeria has described the Decree as “a bold start in the inevitable task of Nigerianizing our legal system”: Sunday Times, April 12th, 1970, p. 5.

^{page 181 note 1} Nwokedi v. Nwokedi, [1958] L.L.R. 94 (Onyeama, J.); Udom v. Udom, [1962] L.L.R. 112 (Coker, J.); Odiase v.Odiase, [1965] N.M.L.R. 196 (]Fatayi-Williams, J.); Ettarh v. Ettarh (unreported), LD/23/1963 (Adefarasin, J.); Olusoga v. Olusoga (unreported), HD/25/1963 (Adefarasin, J.).

^{page 181 note 2} Okonkwo v. Eze, [1960] N.M.L.R. 80 (Hurley, C.J.); Machi v. Machi, [1960] L.L.R. 103 (DeLestang, C.J.); Adeoye v. Adeoye, [1962] N.M.L.R. 63 (Skinner, J.); Adeyemi v. Adeyemi, [1962] L.L.R. 70 (Onyeama, J., shifting from his earlier view in Nwokedi v. Nwokedi, above).

^{page 181 note 3} See States (Creation and Transitional Provisions) Decree, 1967, No. 14 of 1967.

^{page 181 note 4} Akinduro v. Akinduro (unreported), IK/40/69 (Kazeem, J.); Francis v. Francis (unreported), 1/115/69 (Ayoola, J.); Adeyemo v. Adeyemo (unreported), 1/224/67 (Aguda, J.).

^{page 181 note 5} Abiola v. Abiola (unreported), IK/14/69 (Beckeley, J.); Aluyi v. Aluyi (unreported), B/16/1969 (Ighodaro, J.); Abifa v. Abifa (unreported), AK/68/65 (Dec. 1969) (Ogunkeye, J.).

^{page 181 note 6} Formerly Matrimonial Causes Act, 1950, s. 18 (1) (b).

^{page 181 note 7} See Adeoye v. Adeoye, [1962] W.N.L.R. 63; Becker v. Becker (unreported), High Court of Lagos, Nigerian Express of January 14th, 1964, cited in Kasunmu & Salacuse, op. cit., 125.

^{page 181 note 8} The old law, however, will still be the basis of jurisdiction in respect of pending proceedings: s. 98 (6) (a).

^{page 182 note 1} Dicey, Conflict of Laws, 7th Edn., 1958, Rule 7—any person over the age of 21 other than a married woman may acquire a domicile of choice in another country if two things are present: (a) intention to settle in the country permanently or indefinitely, and (b) actual physical presence there.

^{page 182 note 2} The High Court Rules provide that suits other than those relating to land and personalty distrained or seized, recovery of penalties or breach of contract are to be commenced and determined in the Judicial Division in which the defendant resides or carries on business; see, for example, the High Court of Lagos (Civil Procedure) Rules, cap. 44, Ord. 6, Rule 5. A possible objection to our second interpretation is that the words of s. 2 (3) are clear and unambiguous and there is no room for a speculative interpretation. Again it is submitted that any present or subsequent Rules of Court inconsistent with the clear words of s. 2 (3) will be pro tanto void, as having been repealed or for mere inconsistency, respectively.

^{page 183 note 1} See Bromley, op. cit., 88. Note, too, that in proceedings by the wife under s. 7, as in proceedings by the wife under the old law for a dissolution of marriage based on a presumption of death (see Bromley, op. cit., p. 83), the wife can acquire a special domicile different from that of her husband. This implies a tacit statutory modification of the rule of Private International Law that the domicile of a married woman is the same as, and changes with, the domicile of her husband; see Dicey, op. cit., Rule 13. Compare the words of s. 7 with those of s. 40 (1) of M.C.A. 1965 and note that there is no reference in the latter to domicile being deemed for the wife. It is submitted, therefore that the implication carried by s. 7 does not arise in M.C.A., 1965, s. 40 (1).

^{page 183 note 2} See specially Putting Asunder, London, 1966, paras. 39–45, and Law Commission Report, (Cmnd. 3121), para. 25.

^{page 183 note 3} See p. 195, below.

^{page 183 note 4} An Act making provisions to the same effect has been passed in England under the name Divorce Reform Act, 1969, and will come into force on January 1st, 1971.

^{page 183 note 5} Pp. 194–196 below.

^{page 183 note 6} Emphasis supplied.

^{page 184 note 1} It will presently be argued that the facts expressly stated under s. 16 (1) are not exhaustive.

^{page 184 note 2} Space does not permit more than a few brief comments on some of these facts.

^{page 184 note 3} Section 15 (2) (a).

^{page 184 note 4} Section 21.

^{page 184 note 5} Section 30 (2).

^{page 184 note 6} See M.C.A. 1965, s. 9 (1) (a), providing only for wilful refusal to consummate. Wilful refusal to consummate first became a ground for nullity in 1937 by the (U.K.) Matrimonial Causes Act of that year. Before 1937 only incapacity to consummate was a ground rendering a marriage voidable for non-consummation, Napier v. Napier, [1915] P. 184 (C.A.).

^{page 184 note 7} M.C.D. 1970, s. 5 (1) (a).

^{page 184 note 8} For a discussion of these, see Bromley, op. cit., 73–77, Kasunmu and Salacuse, op. cit., 165–168, and the cases cited in those works.

^{page 184 note 9} Jodla v. Jodla, [1960] 1 All E.R. 625. In this case, two Roman Catholics married in a register office. It had been agreed that a church ceremony should follow the marriage. The husband refused to arrange for the ceremony despite repeated demands by the wife for him to do so. Each alleged that the other had wilfully refused to consummate the marriage. Held, that even if the husband expressly requested sexual intercourse (which he did not), the refusal by the wife would be justifiable having regard to her faith, and that it was the husband who wilfully refused to consummate the marriage.

^{page 185 note 1} In Nigerian customary law, there are, strictly speaking, no “grounds” for divorce but reasons: see Obi, op. cit., 366; Kasunmu & Salacuse, op. cit., 175.

^{page 185 note 2} Obi, Ibid., 367. A similar situation exists in most tribes of Africa, e.g. the Kamba, Meru, Tharaka, Luhya and Kisii tribes of Kenya never regard adultery by the husband as a ground for the dissolution of a customary marriage; See Eugene Cotran, The Law of Marriage and Divorce in Kenya, Restatement of African Law, 1968, ed. A. N. Allott.

^{page 186 note 1} Karibi-Whyte has in fact described the behaviour as “cruelty”: see his comments on some aspects of the Matrimonial Causes Decree, 1970, in Nigerian Journal of Contemporary Law, Vol. 1, No. 1, April, 1970, 1.

^{page 186 note 2} Section 15 (2) (c).

^{page 186 note 3} Section 17 (1).

^{page 186 note 4} Section 26.

^{page 186 note 5} Gollins v. Gollins, [1964] A.C. 644; Williams v. Williams, [1964] A.C. 698.

^{page 187 note 1} Evans v. Evans, [1965] 2 All E.R. 789; P. (D) v. P. (J), [1965] 2 All E.R. 456; Sheldon v. Sheldon, [1966] 2 All E.R. 257.

^{page 187 note 2} Barrett v. Barrett (1903), 20 T.L.R. 73.

^{page 187 note 3} Jeapes v. Jeapes (1903), 89 L.T. 74; Williams v. Williams [1964] A.C. 698.

^{page 187 note 4} Gollins v. Gollins, [1964] A.C. 644.

^{page 187 note 5} Either spouse can now base a petition on this. See Morton Commission Report, 1956 (Cmd. 9678), para. 210, which recommended that sodomy and bestiality be made grounds of divorce by the husband, as they are for the wife. Under Nigerian law, the wife can be guilty of rape even as a principal party: see Criminal Code, s. 7 (b), (c), (d), cap. 42, Laws of Nigeria, 1958.

^{page 187 note 6} Section 30 (2).

^{page 187 note 7} Section 16 (1) (b).

^{page 187 note 8} Section 16 (1) (c). See also s. 22 as to aggregation of concurrent sentences in reckoning imprisonment. Semble, since the words “habitually left the petitioner without reasonable means of support” are used conjunctively with the rest of the provision, the husband will find it difficult to succeed in a petition based on s. 16 (1) (c) where he alone is the breadwinner of the family.

^{page 187 note 9} Section 16 (1) (d).

^{page 187 note 10} Section 16 (1) (e).

^{page 188 note 1} Section 16 (1) (f).

^{page 188 note 2} Section 23. What amounts to reasonable attempts will seem to be a question of fact.

^{page 188 note 3} Section 16 (1) (g).

^{page 188 note 4} Section 24.

^{page 188 note 5} Section 26.

^{page 188 note 6} M.C.A. 1965, s. 1 (a) (ii).

^{page 188 note 7} Section 15 (2) (d).

^{page 188 note 8} Section 17 (2).

^{page 188 note 9} Section 19 (1).

^{page 188 note 10} M.C.A., 1965, s. 1 (2).

^{page 188 note 11} Section 20.

^{page 189 note 1} Section 15 (3).

^{page 189 note 2} Section 17 (2).

^{page 190 note 1} Morton Commission, paras. 59–61 and 69–70; Law Commission Report, op. cit., paras. 77–84.

^{page 190 note 2} Putting Asunder, op. cit., paras. 26 and 59.

^{page 190 note 3} S. 15 (2) (f).

^{page 190 note 4} S. 15 (3).

^{page 190 note 5} Frowd v. Frowd, [1904] P. 177, at p. 179; Haswell v. Haswell & Sanderson, (1859), 1 Sw. & Tr. 502; Glenister v. Glenister, [1944] 1 All E.R. 513, at p. 518.

^{page 190 note 6} Sowande v. Sowande, [1960] L.L.R. 58; William v. William, [1939] P. 365.

^{page 191 note 1} Section 39.

^{page 191 note 2} Before the Decree, a failure to comply with an order for a restitution of conjugal rights only gave the other party a right to (a) petition for judicial separation and (b) apply for a number of reliefs.

^{page 191 note 3} Section 15 (2) (h).

^{page 191 note 4} Re-enacted in M.C.A., 1965, s. 14 (3). See also the Nigerian Evidence Act, cap. 62, s. 143 (1), Laws of the Federation, 1958 Revision.

^{page 191 note 5} Thompson v. Thompson, [1956] 1 All E.R. 603, at p. 608.

^{page 191 note 6} Section 30 (1).

^{page 192 note 1} Section 30 (3).

^{page 192 note 2} Section 30 (4).

^{page 192 note 3} Section 30 (2). The three-year restriction, applying before the Decree was enacted, had no such exceptions.

^{page 192 note 4} Morton Commission, paras. 212–217; Putting Asunder, para. 78; Law Commission Report, paras. 19 & 106.

^{page 192 note 5} Before 1963 there were three absolute bars—connivance, condonation and collusion. Section 4 of the M.C.A. 1963 (re-enacted in s. 5 of the M.C.A. 1965) converted collusion into a discretionary bar, leaving only connivance and condonation as absolute bars.

^{page 192 note 6} Sections 26 & 27.

^{page 192 note 7} Section 26.

^{page 192 note 8} Section 28.

^{page 192 note 9} Bromley, op. cit., p. 126.

^{page 192 note 10} Law Commission Report, para. 108.

^{page 193 note 1} Section 12.

^{page 193 note 2} Section 13.

^{page 193 note 3} Section 17(1) and (2).

^{page 194 note 1} E.g., it will not be possible to attempt reconciliation where it is physically impossible for the parties, their friends or relatives to meet and discuss the dispute, or Where the dispute presents special circumstances which make the intervention of friends or relatives quite inappropriate.

^{page 194 note 2} In Australia, for instance, it is provided in s. 5 of the Matrimonial Causes Rules, 1959, that when a matrimonial petition is filed, the solicitor acting for the petitioner must certify, inter alia, that he has brought the names of available marriage guidance organizations to the attention of his client and has discussed with him the Possibility of a reconciliation being effected either with or without the assistance of such organisation.

^{page 194 note 3} Section 88.

^{page 194 note 4} Section 92 and Sched. 3 of the Decree.

^{page 194 note 5} Section 91.

^{page 194 note 6} Matrimonial Proceedings Act, 1960 (formerly Summary Jurisdiction Acts 1895–1949). See however, p. 180, II. 2, above.

^{page 195 note 1} Those interested may read Morton Commission Report, op. cit., paras. 58–71 and p. 340; Putting Asunder, op. cit., paras. 22–33 and paras. 53–68; Law Commission Report, op. cit., paras. 56–76; Mr. Justice McKenna, “Divorce by consent and divorce for break down of marriage”, 30 M.L.R. 121–138; Kahn-Freund, “The Law Commission: reform on the grounds of divorce, the field of choice”, 30 M.L.R. 180–186.

^{page 195 note 2} See, for instance, Kasunmu & Salacuse, op. cit., 127.

^{page 195 note 3} Putting Asunder, para. 26.

^{page 195 note 4} Ibid., para. 28.

^{page 195 note 5} Law Commission Report, para. 120 (5).

^{page 196 note 1} Olayiwola Joseph, Sunday Times (Nigeria), April 12th, 1970, p. 5.

^{page 196 note 2} Law Commission Report, para. 15.

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