IN THE HIGH COURT OF JUSTICE EDO STATE OF NIGERIA

IN THE BENIN JUDICIAL DIVISION HOLDEN AT BENIN CITY

BETWEEN SUIT NO: B/7D/2005

MR. JACOB EDORISIAGBON NEHIKHARE.............. PETITIONER

AND

1. MRS. CILICIA NEHIKHARE ……........... RESPONDENT

2. MR. ADEBAYO …………….. CO-RESPONDENT

JUDGEMENT

This is a petition for the dissolution of marriage brought by the Petitioner on the

ground that the marriage has broken down irretrievably on grounds of adultery and

desertion.

The 1st Respondent apart from filing an Answer to the petition also cross-petitioned

wherein she sought the following order:

(a) An Order dismissing the petition.

(b) A decree of dissolution of marriage between the Cross-petitioner and the

Petitioner on grounds herein before stated.

In his testimony, the Petitioner stated that he knew the Respondent who is his

wife. That she has three children for him who are now adults, and working in

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various places. That the Respondent was a Senior Nursing Officer in Nigeria

but now a Senior Nursing Officer in London. He stated that the Respondent left

his house in 1973, which is period of 32 years. That she committed adultery

before she left, and had a baby girl through adultery called, Miss Joy Adebayo

who was born in 1981.

He said that sometime in 1973, he attended a friend’s party and returned at

about 5-6p.m to find that the toilet in the house was not kept clean. That the

Respondent attacked and challenged him when he questioned her about the

unclean nature of the toilet. The Respondent inflicted a wound on his eye. He

took his late father, who was present to show him the toilet. The father

reprimanded the Respondent, and Itohan the sister went and cleaned the toilet.

The following morning at about 6.00a.m, the sister Itohan told him the

Respondent has packed her property away from the house and left which was

on 18/3/73. He asked the children, he was told that they were sleeping. He took

care of them before taking them to school. After this, he went and informed his

father. The father told him that the Respondent did not come to his house. The

mother of the Respondent also told him that she did not come to her house.

After searching for her in vain, he came to the house and single handedly took

care of the children from primary school to the university level. That it was later

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he learnt that the Respondent was living with one Mr. Adebayo. He stated that

he never brought into the matrimonial home another woman while they were in

Lagos and Benin City where they lived in a two bed room flat. He stated that

their custom do not permit a man to bring into their matrimonial home another

female friend. That he never married another woman till date, and do not intend

to do so. He said that the Respondent joined him in London in 1963. That he

trained her as a Nurse at Walson Hospital on a full time Nursing course. He

stated that in 1966, after he successfully completed his accounting studies in

Birmingham, they decided that he return to Nigeria. The Respondent returned to

Nigeria in 1967, and joined him in Lagos. That he secured a job for her at the

Federal Ministry of Health. That she did not contributed to the upkeep of the

children.

He stated that in 1972, the Respondent was transferred to Epe, and they

agreed to relocate to Benin City. He was employed as a Chief Accountant to the

University of Benin. After this, he secured a job for the Respondent at the

University Teaching Hospital, Benin City as a Nursing Officer. That the

Respondent built houses without his knowledge. That he later knew that the

Respondent built a second house at Imafidon Street, Benin City. He said that

through the period he co-habited with the Respondent in Benin City, she was

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never at home even when she was off-duty. That she did not collude with the

Respondent to bring the petition. He urged the Court to grant the reliefs because

the Respondent left the matrimonial home since 1973, and also ground of

adultery. He said that the marriage was contracted in London in 1963, and they

were issued a marriage certificate, Exhibit ‘A’.

Under cross examination, he stated that the Respondent never paid his

school fees while studying in London. He stated that he knew one Miss

Philomena Omorodion who is his girlfriend whom he met in Benin City in

1973. That he got to involved with her in 1972 because the Respondent was not

always at home. He denied the fact that he was always bringing women into her

matrimonial home. He stated that one Mrs. Dudu was her girl friend, and has a

son for him called EfosaNehikhare who is about 16 years. He stated that one

Mrs. Ogholo was also his girlfriend and has a son for him called

OsahonNehikhare born in June 1981. He stated that one Philomena Omorodion

lives with him in the house till date, but has no child for him. That she packed

into his house since 1981. He denied threatening the Respondent at night with

cutlass and dangerous weapons to move out of the matrimonial home. That he

did not accompany the physical threats with a letter to the family of the

Respondent to move out of the home. He denied threatening the Respondent

when she moved out of the matrimonial home that she will never get pregnant.

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That he never told the Respondent to have sexual relationships with a man. He

denied the fact that while in Lagos, Miss Philomena Omorodion was always

writing letter to him. That he did not file the petition to spite the Respondent

and her children.

At the close of the Petitioner’s case, the Respondent testified that the

Petitioner is her husband. That he went to London, and she later joined him.

That while in London as a student nurse, she was paid monthly salary and she

supported the Petitioner financially. That she was responsible for the upkeep of

the house while the Petitioner was in school. She said that the Petitioner

qualified as an Accountant and returned to Nigeria in 1967, and left her and the

son, Charles in London. That she returned to join him in Nigeria in January

1968. That trouble started between him and the Petitioner in late 1968 because

of Miss Philomena Omorodion who was the girlfriend of the Petitioner. That

Philomena Omorodion took over her matrimonial bed when she was on night

duty. She said that in between 1972 early 1973, the Petitioner asked her and the

children to come down to Benin City because he got a job at the University of

Benin. She obeyed in order to preserve her marriage. Later, the Petitioner joined

them. Before he came, she got a job with UBTH, Benin City as a London

trained Nurse. At this point, Miss Philomena Omorodion started to write him

series of letters. That on one occasion, she searched and found a letter written

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by Miss Philomena Omorodion. She reprimanded the Petitioner about the letter.

The Petitioner asked her what was wrong with Philomena Omorodion writing

love letters to him, and that he had already asked her to pack out of the

matrimonial home. That before they move down to Benin City, the Petitioner

went to her family twice to threaten her. She stated that the Petitioner started his

love affairs with Miss Philomena Omorodion from Lagos and not in Benin City.

That he often threatened to kill her with, cutlass on several occasions. That the

sister-in-law often report the matter to her father-in-law. That because of the

constant threats from the Petitioner, she called a carpenter to help close the door

leading from her room to that of the Petitioner.That her sister, Esther lived with

them during this period.

She stated that in the month of August 1973, a driver from the University of

Benin delivered a letter, Exhibit ‘B’from the Petitioner to her asking her to

pack out of the matrimonial home before his arrival, and failure to do so, will be

met with blood shed. The Petitioner sent copies of the letter to her uncle,

Solomon and his father. When she received Exhibit ‘B’, she reported to the

Police at Esigie Police Station, Benin City. She was given a Policeman to arrest

him but she refused. She went to her father-in-law who told her that he has

already received his copy. He promised to call a family meeting but advised her

to stay away from matrimonial home. She told him that she would stay with

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him but he told her that he has no vacant room in his house. The Petitioner

further went to her family and his own family to ask her to pack out of their

matrimonial home. Before she got home, the Petitioner had already thrown

away her property from the house. She eventually packed out of their home, and

rented an apartment. That during this period, the Petitioner sometimes come to

her house to threaten her saying that she will never get pregnant in the presence

of her sister. He told her that she has his permission to have sex with another

man to see if she can get pregnant. She said that this time, the Petitioner had

already had a son from another woman in 1975. That it was in 1981, she met

Mr. Adebayo and she became pregnant. After that, she refused to see him again.

That she took care of herself before and after delivery. That the child, joy lived

with the Petitioner and her other children. That she gave birth to joy to prove to

the Petitioner that he is not God. That they got married in London at St Theresa

Catholic Church, Birmingham, and we issued marriage certificate, Exhibit ‘A’.

She stated that the Petitioner had a child in 1975 from one Mrs. Dudu and in

1981 had another child from Mrs. Ogholo called Osahon. That in 1986, had

another son from one Mrs. Caroline Nehikhare whom he married under native

law and custom. That he married Mrs. Philomena Omorodion immediately she

packed out of the matrimonial home. That she co-habited with the Petitioner in

London, lagos and Benin City. that she did not collude with him to bring this

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petition. She urged the Court to dissolve the marriage on the cross-petition and

dismiss the Petitioner’s petition. She urged the court to grant her relief on

grounds of adultery by the Petitioner, and that the Petitioner is married to Mrs.

Philomena Omorodion and Caroline. That he lives with Philomena Omorodion.

Under cross examination, she stated that they lived in two bed room flat

while in Lagos, and three bed rooms flat in Benin City. That the Petitioner

always bring women into the matrimonial home when she is on shift duty. She

denied the fact that the Petitioner had problems with her as a result of her bad

manner.

That the problem they had was his relationship with Miss Philomena

Omorodion. That she was pushed out of the house by the Petitioner after the

expiration of the date on Exhibit ‘B”. That she met Mr. Adebayo in 19981,

during one of her visits to Lagos with her children, and gave birth to joy in

1981.

Next to testify is DW1, Mrs. Agnes Ojo. She stated that when the parties

were living in Lagos, she visited them in the house. During her visit, she

observed that there was quarrel between them.

She stated that in 1972, the Respondent called her to say that the Petitioner

was in their family house. She went there and saw him. She wanted to grip him

but the people around prevented her from doing so. That on a certain day, their

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mother sent for her and showerd her a letter written by the Petitioner. The

Respondent was invited and shown the letter. The Respondent insisted that she

will not pack out in compliance with the Petitioner’s letter. The Respondent

then agreed to move out of the house based on Exhibit ‘B”.

Under cross examination, DW1 stated that the Respondent is hot-tempered.

That the Respondent packed out of the matrimonial home in 1973. That her

family members tried to settle the matter but the Petitioner refused to allow the

Respondent return to the matrimonial home. That the Respondent had a child

for another man.

DW2 is Esther Ibizugbe. She stated that she lived with the parties in Lagos.

That not too long she went to Lagos to live with them, they started to have

misunderstanding, but did not know the cause of it. That the Respondent is a

Nurse who normally go to night duty. After she had gone for night duty, the

Petitioner will bring a woman to the matrimonial home. That when the woman

comes, the Petitioner will ask her and the children to move to their room

including the late ItohanNehikhare. The Petitioner will then call them out of the

room when he wants to drop the woman. Later, the parties were transferred to

Benin City and the misunderstanding continued. That when ever the Petitioner

is beating the Respondent, the children and the Respondent will be crying. That

the Petitioner often say to the Respondent that he will kill her if she refuse to

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pack out of the house. That the Petitioner told her that he will kill her and the

Respondent and nobody will give evidence of how he killed them. That the

Respondent will always tell the Petitioner not to kill her because of Philomena.

She said that the Petitioner later drove the Respondent away from the common

room they shared together and she joined them in their room. That the

Respondent normally block the room with the bed in the night to prevent the

Petitioner gaining access to continue with the beating. That because of the

constant threat from the Petitioner, she ran away from the house to live with her

mother.

At the close of the Respondent’s case, Tony .I. EnaboifoEsq, of Learned

Counsel for the Respondent, submitted that the cross-Petitioner has proved her

case on the preponderance of evidence to warrant the Court giving judgment in

her favour.

He submitted that the Respondent has led evidence in proof of the 1st plank

of her ground for the dissolution of the marriage between the parties in line with

the requirement of Section 15 (2) (c) of the Matrimonial Causes Act.

He submitted that since the marriage between the parties, the Petitioner has

lived an adulterous life outside the vows of the matrimonial union thereby

causing great trauma to the Cross-petitioner, and a demonstration of cruelty on

the Cross-petitioner. That the Petitioner admitted that he knew and got involved

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with the one Miss Philomena Omorodion in 1973, who eventually moved into

his house in 1981, as a wife with full rights of co-habitation. He submitted that

the Petitioner also admitted that he had children, EfosaNehikhare,

OsahonNehikhare outside wedlock during the subsistence of his marriage with

the Cross-petitioner. He urged the court to hold that the Cross-petitioner had

proved the catalogue of adulterous and promiscuous escapades of the Petitioner,

and cited ALABI V ALABI (2008) ALL FWLR (PT. 418) 245 AT 251, RATIO

1.

He submitted that the Petitioner subjected the Cross-petitioner to such a

brazen threat to life in the home such that the Cross-Petitioner could not

reasonably be expected to continue in the marriage with the Petitioner, and

referred to Exhibit ‘B”.

He submitted that in the absence of any uncontroverted evidence of the

Cross-petition in relation to the issue of threat in Exhibit ‘B”, he urged the

Court to hold that the 1st plank of the Cross-petition has been proved by the

Cross-petitioner. In respect of intolerable behaviour, he cited the cases of

DAMULAK V DAMULAK (2004) 3 NWLR (PT.874) 151 AT 155; RATIO4

AND NANA V. NANA (2006) 3 NWLR (966) 1 AT 7-8; RATIOS 2 AND 3.

He submitted that the parties have lived apart for a period of 31 years before

the presentation of the petition in compliance with Section 15 (2) (f) of the

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Matrimonial Causes Act. He submitted that the Petitioner pushed and forced out

the Cross-petitioner from the matrimonial home through gave misconduct of his

and brazen intimidation of the Cross-petitioner. That the acts of the Petitioner

smacks of outright cruelty against the Cross-petitioner, and urged the court to

do so hold. He submitted that the Petitioner is in constructive desertion of the

Cross-petitioner in the relationship, and referred to DAMULAK V

DAMULAK (SUPRA) RATIOS 1, 2, & 3; NANA V NANA (SUPRA)

RATIOS 5 & 6.

He submitted that the Petitioner connived with and condoned the so-called

adulterous act of the Cross-petitioner and referred to her evidence. He

submitted that the Petitioner stated that the child (Joy) lived with the Petitioner

and her other children in the Matrimonial home which was admitted by the

Petitioner. He finally urged the Court to dismiss the Petitioner’s petition, and

uphold the Cross-petition.

On her part, B.O. Molokwu (Miss) of Learned Counsel for the Petitioner,

formulated two issues for determination to wit:

1. Whether the marriage between the Petitioner and the Respondent has

broken down irretrievably? and

2. Whether the Respondent/Cross-petitioner by her evidence has proved

her case against the Petitioner?

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 On issue 1, she submitted that it is obvious, given the evidence provided by

the parties that they have lived apart for a continuous period of at least 31years,

and both parties do not object to the dissolution of the marriage; and referred to

Section 15 (2) (f) of the Matrimonial Causes Act, 2004.

She submitted that the Respondent deserted the Petitioner since 1973,

thereby renouncing her responsibilities and evading her duties as a spouse which is

a period of 31 years preceding the presentation of the petition, and cited Section 15

(2) (d) of the Matrimonial Causes Act.

She submitted that adultery can be regarded as a ground only when the

Petitioners find it intolerable to live with the Respondent. That the Petitioner stated

that the Respondent left their matrimonial home to co-habit with the Co-

Respondent. That she willingly abandoned the Petitioner to co-habit with the Co-

Respondent and had a child for him. That the adulterous act can not be blamed on

the Petitioner.That the Petitioner found it intolerable to live with her as a wife

because of the adulterous act; and cited ALABI V ALABI (2007) 9 NWLR (PT.

1039) 297 AT 303, RATIOS 2, 3, 4 AND 5.

She submitted that another condition upon which the Court shall hold a

marriage has broken down irretrievably is provided for in Section 15 (2) (c) of the

matrimonial Causes Act 2004. That examples of intolerable behaviour stated in

Section 16 (1) are neither exhaustive or exclusive. That such averment must be

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coupled with an allegation that the Petitioner find it intolerable to put up with it,

and cited OTTI V OTTI (1992) 7 NWLR (PT. 252) 187 AT 192, RATIOS 1 and

2; DAMULAK V DAMULAK (SUPRA) RATIO 4.

She submitted that the Petitioner can no longer put up with such show of

ingratitude, insecurity and secrecy of the Respondent. She urged the Court to hold

that the marriage has broken down irretrievably.

On issue 2, she submitted that the Respondent has not proved the allegation

of threat. That she failed to show any report made to the Police nor call the Police

to corroborate her evidence. She submitted that the evidence given by the

Respondent and her witness are contradictory and urged the Court to dismiss the

Cross-petition, and dissolve the marriage in favour of the Petitioner.

It is pertinent to state that in every civil action, including a petition, the

burden of proof falls squarely upon the Plaintiff or Petitioner alleging it, as he who

asserts must prove. The standard of proof required is on the preponderance of

evidence or the balance of probabilities. See AGAGU V MIMIKO (2009) 7 NWLR

(PT. 1140) 223.

In the instant case, the Petitioner vide paragraph 9 (1) of the Petition sought

an order of dissolution of the marriage between himself and the Respondent on the

grounds stated therein in paragraph 9 (t), (a) – (d). The Respondent in her

Amended answer and Cross-petition vide paragraph 50 (b) also sought an order of

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dissolution of the marriage between the parties on the grounds stated in paragraph

49.

In the instant Petition, and Cross-petition, the parties sought an order of

dissolution of the marriage on ground of desertion. What then is desertion?

Desertion had been defined thus:

“The Separation of one spouse from the other with an intention

on the part of the deserting spouse to bring cohabitation

permanently to an end and without reasonable cause and

without the consent of the other spouse.”

See Rayden’s Practice and Law of Divorce (Edited by Jackson J and

Turner C.P.) 9th Edition (Butter Worth, London (1970) P. 165.

In the case of NANA V NANA (2003) 3 NWLR (PT. 966) 1 AT 32 it

was defined thus:

“Desertion within the meaning of Section 15 (2) (c) of

the Matrimonial Causes Act must be one where any of

the parties abandons and forsakes without justification,

thus renouncing his or her responsibilities and evading

its duties.”

In order to constitute desertion, four elements must be present

at the same time. They are as follows:

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 (1) Defacto separation of the parties

(2) Animus Deserendi

(3) Lack of cause for the withdrawal from cohabitation, and

(4) The absent of consent of the deserting spouse.

It is worthy of note that Defacto separate implies the bringing to an end of

cohabitation by severing all marital obligations. The most obvious of this occurs

when one spouse physically departs from the matrimonial home. See RASANWO

VS. RASANWO (1961) W.N.L.R. 297.

In proof of act of desertion on the part of the Respondent the Petitioner

stated that sometime in 1973, he attended a friend’s party and returned at about 5-6

p.m. to find the toilet in the house unclean. That the Respondent attacked and

challenged him when he questioned her about the unclean nature of the toilet.That

the Respondent inflicted a wound on his eye. He took his late father, who was

present in the house to show him the toilet. The father reprimanded the

Respondent, and Itohan, the sister went and cleaned the toilet. The following

morning at about 6.00 a.m, Itohan told him, that the Respondent packed her

property away from the house and left which was on the 18/3/73. He went to

inform her parents who told him that she did not come to them. After searching for

her in vain, he single handedly took care of the children up to University level.

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 The Respondent in rebuttal of the evidence of the Petitioner in proof of her

Cross-petition, stated that in the month of August 1973, a driver from the

University of Benin delivered a letter, Exhibit ‘B’from the Petitioner to her asking

her to pack our of the matrimonial home before his arrival, and failure to do so will

be met with bloodshed. That the Petitioner send copies of the letter to her uncle

and father. That when she received Exhibit ‘B’ she went to her father-in-law who

told her that he got his copy, and promised to call a family meeting. He advised her

to stay with him but he told her that he had no vacant room in his house. That

before she got home, the Petitioner had already threw away her property from the

house. She eventually moves out of the matrimonial home and rented an

apartment.

I have carefully considered the evidence adduced by the parties in proof of

the acts of desertion including Exhibit ‘B’. After weighing the evidence of the

Petitioner and place side by side with the evidence of the Respondent.

Cross-Petitioner, I say unhesitatingly that I prefer the evidence of the

Respondent/Cross-Petitioner to that of the Petitioner. It is manifest from the

evidence of the Cross-Petitioner, that she did not pack out of the matrimonial home

unjustifiably. In other words, the Cross-Petitioner was forced out of the

matrimonial home by the Petitioner based on the letter, Exhibit ‘B’written to her

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by the Petitioner. It is at this stage, pertinent to reproduce the relevant portion of

the said Exhibit ‘B’which reads thus:

“Dear Mrs. C.O. Nehikhare,

It is with utmost regret that I have to take this measure; after

discussing with your mother and sister this morning. I came

to the conclusion that to avoid blood being shed, the daily

quarrel and fighting. I hereby order you, with my full consent,

to quit my house and leave apart at least for a time.”

In the instant case, the evidence of the Cross-Petitioner and Exhibit ‘B’

showed clearly that it was the conduct of the Petitioner that compelled the Cross-

Petitioner to abandon the parties matrimonial home.

It is, my view, that the Petitioner having sent the Cross-Petitioner packing

out of the matrimonial home can not rely on desertion as a ground for the

dissolution of the marriage. I hold that the Petitioner has failed to prove that the

Respondent was in desertion.

On the other hand, it is, my view, that the Cross-Petitioner leaving the

matrimonial home based on the letter, Exhibit ‘B’, written to her by the Petitioner

can only be best described as constructive desertion. It is, constructive desertion in

the sense that, it was the conduct of the Petitioner that compelled her to abandon

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the matrimonial home. And section 18 of the Matrimonial Causes Act defines

constructive desertion as:

“A married person whose conduct constitutes just cause or excuse

for the other party to the marriage to live separately or apart, and

occasions that other party to the marriage to live separately or

apart, shall be deemed to have willfully deserted that other party

without just cause or excuse, not withstanding that that person

may not in fact have intended the conduct to occasion that other

party to live separately or apart.”

See also NANA V NANA (SUPRA) AT 46.

It is, my view, from the evidence of the Cross-Petitioner and Exhibit ‘B”

that it was the Petitioner who willfully deserted the Cross-Petitioner without just

cause or excuse, and therefore was in desertion. I therefore hold that the Cross-

Petitioner has successfully established that the Petitioner constructively deserted

the Cross-petitioner under Section 15 (2) (d) of the Matrimonial Causes Act.

Aside form this, the Cross-Petitioner further testified that she has lived

separate and apart from the Respondent for a period of 31 years immediately

preceding the presentation of the Cross-petition when the Petitioner compelled her

to abandon the matrimonial home without her consent. This was also pleaded in

paragraph 49(b) of the Amended Answer and Cross-petition. This, in my view,

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comes clearly within the purview of the provision of Section 15(2) (f) of the

Matrimonial Causes Act which provides thus:

“The Court hearing a petition for decree of dissolution of a

marriage Should hold the marriage to have broken down

irretrievably if but only if, the petitioner satisfies the Court of

one or more of the following facts:

(f) That the parties in the marriage has lived apart for a continued

period of at least three years immediately proceeding the

presentation of the the petition"

On the issue of adultery, it is, my view that the least said about it, the better.

Moreover, Section 15(2) (a) – (h) requires the Petitioner or Cross-Petitioner to

prove one of the facts contained therein, and not all the facts before he or she can

succeed. It is my opinion, that the Cross-Petitioner has proved two of facts

contained therein, and this is sufficient.

On the whole, I hold that the Petitioner has failed to prove his petition as

required by law. Accordingly, same is dismissed as lacking in merit.

I further hold that the Cross-petitioner has successfully proved that the

marriage celebrated between her and the Petitioner at St. Theresa’s Church

Willington Road, Birmingham, U.K. on the 29/3/1963 has broken down

irretrievably under Section 15 (2) (d) (f) of the Matrimonial Causes Act, 1970.

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 Consequently, I hereby enter judgment in favour of the Cross-Petitioner in

the following terms:

1. That the marriage between the Petitioner and Cross-petitioner

solemnized at St. Theresa’s Church Willington Road,

Birmingham, U.K. on the 29/3/1963 is hereby dissolved.

2. I hereby pronounce an order of Decree Nisi.

3. The order of Decree Nisi shall be made absolute at the

expiration of three (3) months from the date thereon unless

sufficient cause is shown to the contrary.

The Cross-petitioner is entitled to costs which I fix at N5,000.00.

…………………………
E.O. Ahamioje
(JUDGE)
30/03/2012

COUNSEL

R.I. Edugie Esq. …… For the Petitioner

Tony .I. Enaboifo, Esq. …… For the Respondent/Cross-Petitioner

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