MARCO CONCEPTUAL

The origin of the statutory duty to maintain a wife by her husband can be traced back to the practice of the Ecclesiastical Courts in England. Before the commencement of the Matrimonial Causes Act 1857 in England, the Ecclesiastical Courts used to order a decree of divorce a mensa et thoro meaning from bed and table in matrimonial proceedings, the husband to pay the wife alimony pending suit (or pendente lite), and on grant of the decree, permanent alimony. The Act not only transferred this power to the Divorce court, it also empowered the latter court on grant of a decree of divorce to order the husband to secure maintenance for the wife‘s life. By the Matrimonial Causes Act of 1866, the Court was given the additional power to order the husband to pay the wife an unsecured maintenance. All the above powers were later extended to nullity proceedings in 1907. By 1963, the court could order a lump sum payment in proceedings for divorce, nullity or judicial separation. It was not until 1937 that the wife became obliged to maintain her husband and this was in very limited circumstances, namely in proceedings

17 (1952) 2 QB 770

18 ‗Statute Law Maintenance‘<www.statute law maintenance/marriage.com.uk> accessed 01/05/2011

for judicial separation or divorce on the ground that the husband had become insane.

However, it should be added that since 1857, the court could order the settlement of a wife‘s property in proceedings for divorce or judicial separation by the husband on the ground of the wife‘s adultery. This ground was later extended to include the wife‘s desertion and cruelty as well as where the husband obtained a decree of restitution of conjugal rights. It should be noted that in all the above cases, financial reliefs could only be granted as ancillary reliefs. It was not until 1949 that a wife could obtain financial relief in the superior courts in an independent proceeding. Before the order could be made, the husband must have been guilty of wilful neglect to maintain the wife or any child to which the provision applies and the court would have had jurisdiction to entertain proceedings for judicial separation by the wife. It should be noted that under the summary Jurisdiction (Married Women‘s Property Act) (1895-1949), a Magistrate‘s Court in England could entertain jurisdiction and make an order in an independent proceeding for maintenance by the wife.

Before the commencement of the Act (MCA of Nigeria) it was not certain whether independent proceedings for financial relief could be instituted in Nigeria by virtue of the above mentioned English statutes. The question of the applicability of the 1895 Act was considered in a 1947 case of Okpaku v Okpaku¹⁹ by the Supreme Court of Nigeria and it held that it was applicable and granted maintenance to the wife. The decision was reversed by the West African Court of Appeal which held that the Act was not a statute of General application and therefore not applicable in Nigeria. In the above case, the question of the applicability or otherwise of the 1895 Act was determined by

19 (1947) 12 WACA 137

reference to the Supreme Court Ordinance, 1943, which provided for the application in Nigeria of the common Law of England, the doctrines of equity and the Statutes of General Application in force in England on the 1^st January, 1960.

In so far as the applicability of section 22 of the Matrimonial Causes Act, 1965 is concerned, this is undoubtedly a post-1900 imperial legislation, therefore if it is applicable at all, it is by virtue of a different enabling provision. In Ekisola v Ekisola²⁰ W instituted proceedings for a maintenance order in favour of herself and the children of the marriage.

She alleged wilful neglect to maintain on the part of the husband and that he drove her away from the matrimonial home. The proceedings were brought under Section 23 of the Matrimonial Causes Act, 1950, a provision which was later re-enacted in Section 22 of the 1965 Act. Coker J. (as he then was) upheld the wife‘s claim on the ground that Section 16 of the High Court of Lagos Act, Cap. 80 enjoined the High Court to exercise its jurisdiction in matrimonial causes in conformity with the Law and practice for the time being in force in England and that the English Law referred to included Section 23 of the 1950 Act.

At present, unless the prevailing MCA of Nigeria is reviewed and reformed, the above decision will continue to be criticized on the ground that although the High court was empowered to apply current Law on Matrimonial Causes, an independent proceeding for ancillary relief is not a Matrimonial Cause, and that the court ought not to have granted the wife‘s application.

20 (1961) LLR 8