MARCO CONCEPTUAL:

children, as well as to obtain custody of, or access to children, without seeking a principal relief.

In view of the foregoing, it is my humble submission that the present MCA of Nigeria be reviewed and reformed to confer jurisdiction on Magistrate‘s, Courts to handle at least ancillary reliefs such as maintenance or making orders for judicial separation in addition to the present powers of enforcing payments of maintenance order by a High Court. In the alternative, let every State and the FCT Abuja create Family Courts as contained the Nigeria‘s Child‘s Right Act (2003). The jurisdiction of the family Courts should centre on only matrimonial causes to lessen the load of High Courts of States and the FCT Abuja which presently exclusively handle all matrimonial causes.

of the continued operation of a decree of judicial separation, or an order discharging a decree of judicial separation.

(c) Proceedings with respect to the maintenance of a party to 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 proceeding 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 Act.

The flaw in this Section 114 of the Act lies on its sub-paragraph (1) (c) quoted above which amounts to the effect that, proceedings for maintenance, settlement of property, damages for adultery, custody, guardianship, would only be deemed to be matrimonial causes, if they are ancillary to proceedings in relation to concurrent, pending or completed proceeding of a kind referred to in paragraphs (a) or (b) of Section 114.

Equally, Section 54 (3) of the MCA provides-

Proceedings of a kind referred to in paragraph (c) of the definition of

―matrimonial causes‖ in Section 114 (1) of this Act for a decree or declaration of a kind referred to in paragraph (a) or (b) of that definition.

(a) May be instituted by the same petition as that by which the proceedings for that decree or declaration are instituted; and

(b) except as permitted by the rules or by leave of the Court, shall not be instituted in any other manner.

Again by Section 75 of the MCA, it is expressly provided that where the petition for the principal relief has been dismissed, no ancillary relief can be made.

Equally pertinent here is Section 70 (3) of the MCA which provides that a Court may make an order for maintenance of a party notwithstanding that a decree is or has been made against the party in the proceedings to which the proceedings with respect to maintenance are related.

From all the above, it is clear that under the existing MCA of Nigeria, an independent action for ancillary relief is outside the jurisdiction of the High Court.

However, with a case like Esua v Esua¹⁵, there is a conflicting decision on this principle. In the Esua‘s case, there was an application for order to strike out the original application brought by the respondent on the ground that it is

not a matrimonial cause and that there have been no proceedings for the principal relief as required under the provisions of Section 75 of the Matrimonial Causes Act (MCA).

The argument of the applicant was that in so far as the original application was not a matrimonial cause within the meaning of Section 114 (1) of the Act, the respondent could not, having regard to the provisions of Section 75, bring the original application separately without including it in any petition for the principal relief as defined in Section 75 (4).

It was held (Per Kazeem) after reference to Section 75 that the Section makes special provisions for the making of orders for maintenance prescribed therein and it

15 (Unreported) Suit No M/63/70 of 4/12/70 (per Kazeem, J) George, J in a ruling delivered on 3/7/70 in the case held that it could not be brought independently.

contemplates the making of such orders only when the application for such orders are included in the matrimonial causes (otherwise called principal reliefs) mentioned in Section 114 (1) (a) and (b) of the Act.

The Esua‘s case was followed by the case of Adekoya v Adekoya¹⁶

However, Justice Adefarasin in the case of Akinwumi v Akinwumi¹⁷ held in an application for maintenance and custody that:

Although an application for periodical payments and custody independent of a principal relief is not a matrimonial cause within the meaning of Section 114 (1) (c) of the Decree, such an application can be properly brought under Sections 70 and 71 of the Decree. as it can also be brought under Section 12 of the High court of Lagos and Sections 22 and 35 of the English Matrimonial Causes Act, 1965 and the rules made thereon.

In the case of Nakanda v Nakanda¹⁸ the Court of Appeal went further and held that a spouse can bring an action for maintenance without joining it with any principal relief like divorce, judicial separation etc.

In Nakanda‘s case, the respondent (the wife) had applied to the High court, five years after she and her husband had been living apart, for an order of maintenance in her favour, without at the same time bringing the action along with a petition for divorce,

16(1973) 2 CCHCJ 73

17 (Unreported) Suit No M/66/70/ of 19/3/71 delivered by Adefarasin, J.

18(Unreported) Suit No CA/L/99/81 of 17/6/88 delivered by the Court of Appeal Lagos

judicial separation, or any of the other types or matrimonial causes defined in Section 114 (1) (a) of the Matrimonial Causes Act. One of the questions that arose for determination was whether such an action for maintenance, independent of a matrimonial cause was valid. The trial judge held that it had jurisdiction relying on.

Section 70 (1) of the MCA and made an order for maintenance The matter went further on appeal and the Court of Appeal held that under Section 70 of the Matrimonial Causes Act, parties are entitled to institute action for maintenance independently of a matrimonial causes.

Ademola, J.C.A., stated as follows:

First I must say that the wording of Section 70 sub-section 1 is different from Section 70 sub-section 2, Section 70 sub-section 1 as it has been emphasized in the respondent‘s briefs, requires the court in proceedings for maintenance other than proceedings for maintenance in a pending suit, to make such orders as it thinks proper having regard to the means, earning capacity and conduct of the parties --- This wording to my mind has introduced a distinction between that Section 75 sub-section 3 on the question of maintenance. It is possible to maintain an action for maintenance under Section 70 sub-section 1 as an independent proceeding unrelated to any pending proceedings relating to Matrimonial Causes under the principal Decree. In other words, any party to a marriage that is about to collapse, if he so wishes, can ask for the maintenance under that

Section 70 sub-section 1. This he can do with a hope that parties may reconcile their differences and the need to have a dissolution of the marriage or a judicial separation may not come about. After all, it is one of the stated policy of the Act that the Court should permit reconciliation and for the time being one of the spouses gets maintained.

Inspite of the above decisions, prominent authors like Kasunmu¹⁹ described the reason given by the court in Akinwumi v Akinwumi²⁰ in arriving that the MCA of Nigeria allows institution of maintenance, or custody as an independent action, as very doubtful.

According to Kasunmu, the court based its decision on the fact that Sections 70 and 71 of the Act, are similar to Sections 22 and 35 of the 1965 English MCA, which were applicable to Nigeria prior to 1970. The court went further to say that as a result of the fact that the said Sections 22 and 35 allowed independent actions for maintenance, that our Sections 70 and 71 of Nigerian MCA must have the same effect. This Kasunmu vehemently disagreed with and I agree with Kasunmu in this work.

Kasunmu²¹ went further to attack the other reason the court gave for holding that independent action for maintenance could be instituted in Nigeria.

The second reason of the court is as follows:

--- It is my view that the Matrimonial Causes Rules of the United Kingdom would apply to the kind of application of the applicant wife.

19 A B Kasunmu, ‗The Matrimonial Causes Act 1970: A Critical Analysis‘ (1971) The Nigerian Journal of Contemporary Law, 117.

20Supra 21 Ibid p. 118

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. Section 112 (4) also provides that until such rules are made, the rules of the court in force immediately, before the commencement of the Decree, shall continue to be 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 Section 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 Sections 70 and 71, do not operate to permit such applications, then 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 and 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 and 71 of the Decree 1970, I would still hold that the application is right and proper under the English Act.

In disagreeing with above reasoning of the court, Kasunmu²² stated that Section 112 (4) of the MCA was only intended to provide for the continued application of English Rules of Court as to practice and procedure, pending the making of such rules of Court by the Chief Justice of Nigeria under Section 1 (2) of the MCA. In other words, the section was not meant to introduce substantive rules of the Law.

In view of the foregoing, it is therefore my submission that the Nigerian Matrimonial Causes Act (MCA) needs clear reform that would make it allow filing of independent ancillary reliefs like Maintenance and custody. This is necessary considering the fact that in some situations, a spouse in a troubled marriage may not wish for an outright break of the marriage. Such a spouse should be given the option of being allowed by the Divorce Law to file a relief like maintenance as an independent matrimonial suit as is presently the case with nullity of marriage, dissolution of marriage and others recognized under the existing Nigerian MCA as independent Matrimonial Causes.

22 Ibid p. 118

CHAPTER EIGHT

CONTEMPORARY ISSUES, SEPARATION AND DEFINITION OF SIMPLE DESERTION