BRIDGET U. AKINWUNMI v AKINWANDE O. AKINWUNMI (SUIT NO. M/66/70) [1971] NGHC 11 (19 March 1971)

**BRIDGE****T** **U****.** **A****KINWUN****M****I** **(APPLIC****A****NT****)** **_v._** **AKINWANDE** **O.** **AK****INWUNMI** **(R****ESPONDENT)** **(1971)** **All** **N.L.R.** **416** **Div****i****si****o****n:** High Court of Lagos **D****at****e** **o****f** **Judgment:** 19th March, 1971 **C****as****e** **Num****b****er:** SUIT NO. M/66/70 **Before:** Adefarasin, J. Application for maintenance and custody. **_HELD_**** _:_** (1) Although an application for periodical payments and custody independent of a principal relief is not a matrimonial cause within the meaning of s. 114(1)(_c_) of the matrimonial causes Decree, 1970, such an application can be properly brought under sections 70 and 71 of the Decree as it can also be brought under s. 12 of the High Court of Lagos Act and Sections 22 and 35 of the English Matrimonial Causes Act, 1965, and the rules made thereon. (2) In this case the applicant brought her application under s. 22 of the Matrimonial Causes Act, 1965, of the United Kingdom. This Section, as indeed s. 35 of the same Act permits a spouse to bring applications for orders of maintenance and custody of children in cases of wilful neglect to maintain quite independently of the principal reliefs of dissolution, nullity, judicial separation etc. Consequently, the application of the applicant was properly brought in accordance with the provisions of the Matrimonial Causes Decree, 1970. **_P_**** _E_**** _R_** **_C_**** _URIAM_**** _:_** (1) Where a party who is seeking a Decree of the court (referred to in the Matrimonial Causes Decree, 1970 as the "principal relief") also seeks ancillary relief's for the custody of the children of the marriage or for maintenance, the court acting under section 75(3), shall not make the orders for custody or maintenance unless it has heard the proceedings for the order in the Decree (i.e. Dissolution, nullity, judicial separation etc.) at the same time or immediately after the proceedings for the principal relief. (2) Had the applicant brought her application for custody and maintenance under s. 75 of the Decree she would have been caught under s. 75(3) of the Matrimonial Causes Decree, 1970 and also s. 114(1)(_c_) which also applies to the same kind of proceedings for principal relief's. (3) Section 112(1) of the Matrimonial Causes Decree, 1970 provides that the Chief Justice of Nigeria, after consultations, may make rules for or in relation to the practice and procedure of the courts with regard to Matrimonial Causes under the Decree. S. 112(4) also provides that until such rules are made, the rules of Court in force immediately before the commencement of the Decree shall continue in force. Hitherto our Courts had applied them by virtue of the provisions of s. 12 of the High Court of Lagos Act. Since the provisions of s. 114(1)(_c_) of the Matrimonial Causes Act would not apply to applications for maintenance and custody of children independent of a principal relief, and it is assumed for the sake of argument that s. 70 and 71 do not operate to permit such applications, then as there are no rules as yet made under s. 112(1) of the Decree to cover such applications the English Matrimonial Causes Act, 1965, Sections 22 and 35 would apply and the application can be brought under and by virtue of the Act. The proper mode of commencing the application is by way of originating summons as has been done here. _Application_ _by_ _husband_ _R_ _espondent_ _that_ _substantive_ _application_ _of_ _w_ _ife_ _be_ _struck_ _out_ _dismissed._ _D_ _e_ _c_ _r_ _e_ _e_ _r_ _e_ _fe_ _r_ _r_ _e_ _d_ _t_ _o_ _:_ _Matrimonial_ _Causes_ _D_ _ecree_ , 1970. ss. 70, 71, 75, 112(1) 112(4); 114(1)(_c_). _A_ _c_ _t_ _s_ _r_ _e_ _f_ _e_ _r_ _r_ _e_ _d_ _t_ _o_ _:_ _Matrimonial_ _Causes_ _Act_ , 1965 (England) s. 22, 35. _Hig_ _h_ _C_ _o_ _ur_ _t_ _o_ _f_ _L_ _ago_ _s_ _A_ _c_ _t_ s. 12. APPLICATION FOR MAINTENANCE AND CUSTODY. SUIT NO. M/66/70. _A_ _._ _S_ _o_ _l_ _an_ _k_ _e_ for the Husband-Respondent/Applicant. _S_ _o_ _l_ _e_ _s_ _i_ for the wife-Applicant/Respondent. Adefarasin, J.:-Mrs Bridget Akinwunmi has in the substantive application, brought by way of originating summons, prayed for an order that the respondent do secure, to the satisfaction of the court, periodical payments for her maintenance; and that she be granted custody of the only child of the marriage, Oluwakemi Abosede Akinwunmi. Apart from these ancillary reliefs the applicant is not seeking any decree of dissolution or nullity or judicial separation. The present application is brought by the husband respondent, Mr Akinwande Akinwunmi, for an order that the substantive application of the wife be struck out in that it is not properly brought before the court because it is not in accordance with the provisions of the Matrimonial Causes Decree, 1970. Put very briefly, the argument put forward in favour of the striking out of substantive application is that since that application is not a _Matrimonial_ _c_ _ause_ within the meaning of s. 114(1) of the Matrimonial Causes Decree 1970, the respondent is precluded from bringing her application for a separate relief unaccompanied by a prayer for a principal relief for a decree of dissolution or nullity or judicial separation etc. In considering the arguments put forward on behalf of both parties it is useful to bear in mind the provisions of sections 70, 71, 75 and 114(1)(_c_) of the Matrimonial Causes Decree 1970. The sections provide:- "_Section_ 70(1) Subject to this section, the court may, in proceedings with respect to the maintenance of a party to a marriage, or of children of the marriage, other than proceedings for an order for maintenance pending the disposal of proceedings, make such order as it thinks proper, having regard to the means, earning capacity and conduct of the parties to the marriage and all other relevant circumstances. (2) Subject to this section and to rules of court, the court may, in proceedings for an order for the maintenance of a party to a marriage, or of children of the marriage, pending the disposal of proceedings, make such order as it thinks proper, having regard to the means, earning capacity and conduct of the parties to the marriage and all other relevant circumstances. (3) The court may make an order for the maintenance of a party notwithstanding that a decree is or had been made against that party in the proceedings to which the proceedings with respect to maintenance are related. (4) The power of the court to make an order with respect to the maintenance of children of the marriage shall not be exercised for the benefit of a child who has attained the age of twenty-one years unless the court is of the opinion that there are special circumstances that justify the making of such an order for the benefit of that child." "_Section_ 71(1) In proceedings with respect to the custody, guardianship, welfare, advancement or education of children of a marriage the court shall regard the interests of those children as the paramount consideration; and subject thereto, the court may make such order in respect of those matters as it thinks proper. (2) The court may adjourn any proceedings within subsection (1) above until a report has been obtained from a welfare officer on such matters relevant to the proceedings as the court considers desirable, and any such report may thereafter be received in evidence. (3) In proceedings with respect to the custody of children of a marriage, the court may, if it is satisfied that it is desirable to do so, make an order placing the children, or such of them as it thinks fit, in the custody of a person other than a party to the marriage. (4) Where the court makes an order placing a child of a marriage in the custody of a party to the marriage, or of a person other than a party to the marriage, it may include in the order such provision as it thinks proper for access to the child by the other party to the marriage, or by the parties or a party to the marriage, as the case may be." "_Section_ 75(1) Save as provided by this section, the court shall not make an order under this Part of this Decree where the petition for the principal relief has been dismissed. (2) Where:- (_a_) the petition for the principal relief has been dismissed after a hearing on the merits; and (_b_) the court is satisfied that:- (i) the proceedings for the principal relief were instituted in good faith to obtain that relief, and (ii) there is no reasonable likelihood of the parties becoming reconciled, the court may, if it considers that it is desirable to do so, make an order under this Part of this Decree, other than an order under section 72 of this Decree. (3) The court shall not make an order by virtue of subsection (2) above unless it has heard the proceedings for the order at the same time as, or immediately after, the proceedings for the principal relief. (4) In this section, _"__p_ _r_ _in_ _c_ _i_ _p_ _a_ _l_ _r_ _e_ _l_ _ie_ _f_ _"_ means relief of a kind referred to in paragraph (_a_) or (_b_) of the definition of "matrimonial cause" in section 114(1) of this Decree." _"Section_ 114(1)(_c_) proceedings with respect to the maintenance of a party of the proceedings, settlements, damages in respect of adultery, the custody or guardianship of infant children of the marriage or the maintenance, welfare, advancement or education of children of the marriage, being proceedings in relation to concurrent, pending or completed proceedings of a kind referred to in paragraph (_a_) or (_b_) above, including proceedings of such a kind pending at, or completed before, the commencement of this Decree." It is very clear from the foregoing that where a party who is seeking a Decree of the court (referred to in the Matrimonial Causes Decree 1970 as the "principal relief") also seeks ancillary relief's for the custody of the children of the marriage or for maintenance the court acting under s. 75(3), shall not make the orders for custody or maintenance unless it has heard the proceedings for the order in the Decree (i.e. dissolution, nullity, judicial separation etc.) at the same time or immediately after the proceedings for the principal relief. Had the applicant Mrs Williams brought her application for custody and maintenance under s. 75 of the Decree she would have been caught under s. 75(3) of the Matrimonial Causes Decree 1970 and also s. 114(1)(_c_) which also applies to the same kind of proceedings for principal relief's. She has however brought her application under s. 22 of Matrimonial Causes Act 1965 of the United Kingdom. This section, as indeed s. 35 of the same Act, permits a spouse to bring applications for orders for maintenance and custody of children in cases of wilful neglect to maintain quite independently of the principal reliefs of dissolution, nullity, judicial separation etc. Such applications had been entertained in our Courts in Nigeria prior to the enactment of the Matrimonial Causes Decree 1970. It is submitted on behalf of the respondents that similar applications cannot now be entertained in the light of the new Decree. I do not agree with this point of view for the reasons I will now proceed to outline. In the first place it is my view that sections 70 and 71 of the Matrimonial Causes Decree 1970 (which have been reproduced above) make adequate provisions for proceedings for the maintenance of a party to the marriage and also for the custody and maintenance for the children of the marriage independently of whether there is a prayer for a principal relief for a decree of dissolution, nullity, judicial separation etc. It is my clear opinion that a spouse who desires orders for maintenance and custody of children is entitled to seek such orders under Sections 70 & 71 of the Matrimonial Causes Decree 1970 notwithstanding that she has not at the same time presented a petition for a principal relief. It is my view that the provisions of Sections 70 & 71 of the Decree are quite similar to those of sections 22 & 35 of the Matrimonial Causes Act, 1965 of the United Kingdom. By them applications can be made to the court for some reliefs independently of petitions for dissolution or nullity of a marriage or an order for judicial separation. Assuming however that I am wrong in everything I have said so far I would not have been inclined to strike out the original application because it is my view that the _Matrimonial_ _Causes_ _rules_ _of_ _the_ _United_ _Kingdom_ _would_ _apply_ _to_ _the_ _kind_ _of_ _a_ _pplication_ _of_ _the_ _applicant_ _w_ _ife_. S. 112(1) of the Matrimonial Causes Decree 1970 provides that the Chief Justice of Nigeria, after consultations, may make rules for or in relation to the practice and procedure of the courts with regard to Matrimonial Causes under the Decree. S. 112(4) also provides that until such rules are made, the rules of court in force immediately before the commencement of the Decree shall continue in force. Those rules are the rules applicable to Matrimonial Causes in the Supreme Court in England and I think they are applicable here for the time being in the absence of any other rules. Hitherto our courts had applied them by virtue of the provisions of Section 12 of the High Court of Lagos Act. Since the provisions of s. 114(1)(_c_) of the Matrimonial Causes Act would not apply to applications for maintenance and custody of children independent of a principal relief, and it is assumed for the sake of arguments that Sections 70 & 71 do not operate to permit such applications, then as there are no rules as yet made under Section 112(1) of the Decree to cover such applications the English Matrimonial Causes Act, 1965 sections 22 & 35 would apply and the application can be brought under and by virtue of the Act. Had I been wrong in my decision that the substantive application of the wife could be brought under sections 70 & 71 of the Matrimonial Causes Decree, 1970 I would still hold that the application is right and proper under the English Act. I am also of the clear view that the proper mode of commencing the application is by way of originating summons as has been done here. I have had the advantage of reading the two conflicting views of my learned brothers George, J. And Kazeem, J. on the issues that are discussed in this decision. The two differing points of view, quite strangely, were expressed by them in the same Matrimonial Causes Suit No. M/63/70 O. O. _Es_ _ua_ _v._ _E._ _I._ _Esua_. I have given ample and anxious considerations to the very learned reasoning of my distinguished colleagues in their rulings on these questions. I conceive that it would be, not only futile, but improper for me to re-discuss the points of view which led in each case to a different conclusion by them as to whether an application, independent of a principal relief, can be made under the Matrimonial Causes Decree, 1970. Suffice it to say that while George, J. held that the application of a wife for periodical payments cannot stand being independent of other proceedings and is not a matrimonial cause within the meaning of Section 114(1)(_c_) of the Matrimonial Causes Decree and consequently that section 98 of the Matrimonial Causes Rules of 1968 does not apply, Kazeem, J. held the contrary to be the case. With great respect, I incline to the view that _although_ _an_ _application_ _for_ _periodical_ _payments_ _and_ _custody_ _independent_ _of_ _a_ _principal_ _relief_ _is_ _not_ _a_ _matrimonial_ _cause_ _within_ _the_ _meaning_ _of_ _s._ 114(1)(_c_) _of_ _the_ _Decree_ _such_ _an_ _application_ _can_ _be_ _properly_ _brought_ _under_ _sections_ 70 & 71 _of_ _the_ _Decree_ _as_ _it_ _can_ _also_ _b_ _e_ _brought_ _under_ s _._ 12 _of_ _the_ _High_ _Court_ _of_ _Lagos_ _Act_ _and_ _Sections_ 22 _and_ 35 _of_ _the_ _English_ _Matrimonial_ _Causes_ _Act,_ 1965 _and_ _the_ _rules_ _made_ _thereon._ In the result I hold that the contention that the application by the wife is not properly brought in accordance with the provisions of the Matrimonial Causes Decree 1970 is not well founded. Accordingly I dismiss the husband respondent's application that it be struck out. Costs against the husband respondent are assessed at £10-10 _s_ -0 _d_. The substantive application is set for hearing after call-over on 29th March, 1971. Wednesday the 31st and Thursday 1st April, 1971 should also be left open. _Application_ _by_ _husband_ _R_ _espondent_ _that_ _substantive_ _application_ _of_ _w_ _ife_ _be_ _struck_ _out_ _dismissed._