Los nuevos enfoques de la Didáctica Moderna

Parliament evidently concluded that the time had come to recognize that matrimonial offences are in many cases symptomatic of breakdown of marriage and that there should also be a provision for divorce in cases where, quite apart from the commission of such offences, the marriage has broken down completely. Courts are relieved of the difficult task of assigning where fault lay, an issue in matrimony oftentimes too subtle for the average man to determine. Parliament has recognized that there is an element of artificiality in the matrimonial offence doctrine with its emphasis of legal guilt and innocence. In real life it is rare to find all the right on one side and all the wrong on the other.

5.2 The Propriety of Ground/Grounds for Divorce Under Section 15 (2)

According to Nwogugu in his book²⁰,Section 15 (1) of the Act

‗established a single ground for divorce – irretrievable breakdown in place of several which existed under the old law‘.

In 1989, Uche Omo, JCA (as he then was) in the case of Harriman v Harriman²¹ stated as follows:

...firstly, there is only one ground for dissolution of all marriages under the Matrimonial Causes Act, to wit, ―that the marriage has broken down irretrievably‖ vide Section 15 (1) of the Act. The paragraphs of sub-section 2 thereof, eight of them (a) to (h), are only various species of the breakdown, or to put it differently, a petitioner who satisfies the court on anyone or more of those facts would be entitled to a finding that the marriage has irretrievably broken down, and consequently be entitled to a decree dissolving same. They do not constitute separate grounds on the basis of which a dissolution can be granted.

The salient points in the above statement of Hon. Justice Uche Omo are:

1) That there is only one ground for dissolution of all marriages under the Act.

2) That paragraphs (a) to (h) of the Section 15 (2) are only various species or facts of the breakdown.

3) That they do not constitute separate grounds.

On the contention that the marginal note to the section reads ‗grounds for dissolution of marriage‘, such contention cannot hold water in view of the clear words of

20 Nwogugu, op cit, p. 56

21[1989] 5 NWLR (pt. 1199) 6 at 15

the Section 15 (1) which uses the word ‗ground‘ and it has long been held that clear words of a statute must prevail over the marginal note²²

In a more recent case of Ekrebe v Ekrebe²³, the petition to the court did not contain the wordings ‗the marriage has broken down irretrievably‘ as required by section 15 (1). The court made it clear that ‗irretrievable breakdown‘ of marriage was the only ground for dissolution of marriage under Nigerian Law and that the appellant could not therefore be heard to plead the marriage has broken down irretrievably notwithstanding, that the petition itself contained the words ‗cruelty, desertion and adultery‘, as those were not only part of the relevant facts to be considered.

However, I must add that having believed that the Act contains only one ground for divorce, it does not mean that the said paragraphs (a) to (h) are useless. The value of the paragraphs to the single ground for divorce in Section 15 (1) was well put across by Nnaemeka Agu, J.C.A. in the case of Ezirim v Ezirim²⁴ were he stated as follows:

It is necessary to bear in mind the fact that although the Act (Matrimonial Causes Act) created only one ground of divorce, to wit: that the marriage has irretrievably broken-down; yet that the facts which may lead to the marriage breaking down irretrievably are categorized under sub-section(a) to (h) to section 15 (2). Only those facts can suffice to found a petition for divorce. In other words, a court hearing a petition for divorce ought not to hold that the marriage has irretrievably broken down unless the

22 AG v Prince Ernest (1957) AC 436

23 [1999] 3 NWLR (pt. 596) 514

24 (Unreported) FCA/L/56/78 delivered on Feb. 6 1981 CA Lagos

petitioner or cross-petitioner as the case may be, satisfies the court on one or more of the --- facts—

In a 2007 case of Ibrahim v Ibrahim²⁵, the appellant and the respondent married under the Act. The appellant petitioned for dissolution of marriage on the ground that since the marriage, the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent due to infidelity, idolatry and hostility and that the parties have lived apart for a continuous period of three years immediately preceding the presentation of the petition. The court held that a petition for dissolution may be presented only where the marriage has broken down irretrievably and that what amounts to irretrievable breakdown is contained in Section 15 (2) of the MCA.

In 2011, the Court of Appeal in Bibilari v Bibilari²⁶ upheld the decision in the above Ibrahim‘s case. From the fore-going, I therefore submit that the Act contains only one ground for divorce and not many grounds. The eight paragraphs in Section 15 (2) (a) to (h) which the marginal note calls grounds should be regarded as ‗facts‘ or ‗species‘ of the breakdown. And I accordingly recommend that in the urgent reform which the Nigerian MCA requires, that marginal note to Section 15 (1) should read ‗Ground‘ not

‗Grounds‘ for dissolution of marriage. By so correcting it, the confusion, dissipation of energy and criticisms it has caused the law would abate.