Whether a Party in a Matrimonial Proceedings Is Entitled to an Equal Share of Matrimonial Property Solely by Virtue of Marriage Without Proving Contribution?

CASE TITLE: AGUOLU v. AGUOLU (2025) LPELR-80269(CA)

JUDGMENT DATE: 17th Jan, 2025

JUSTICES: DANLAMI ZAMA SENCHI, J.C.A
POLYCARP TERNA KWAHAR, J.C.A
ABDULAZEEZ MUHAMMED ANKA, J.C.A

DIVISION: LAGOS

PRACTICE AREA: FAMILY LAW

FACTS:

This appeal borders on dissolution of marriage.

This appeal is against the judgment of Ikeja High Court delivered on the 22nd day of June, 2021.

The Respondent before the Ikeja High Court was the Petitioner and by a petition, the Respondent petitioned the trial Court for the dissolution of the marriage between himself and the Appellant on the grounds that the marriage between them had broken down irretrievably based on the fact that both have lived apart for 22 years preceding the time of filing the petition before the trial Court and the Appellant had behaved in such a way that the Respondent could not reasonably be expected to live with her. He sought only for an order of the trial Court for a decree of dissolution of the marriage.

The Appellant in response to the petition of the Respondent at the trial Court, filed her answer to the petition and a cross-petition wherein she sought for the dissolution of the marriage by her cross-petition on the ground that the marriage has broken down irretrievably based on the fact that the Respondent has behaved in such a way that the Appellant finds it intolerable to live with the Respondent for committing adultery and parties have lived apart for more than 3 years.

The Respondent testified for himself and the Appellant also testified for herself. The marriage between the parties took place in the Catholic Church of St. Dominic’s, Yaba, Lagos on the 14th day of February, 1976. The parties co-habited at No. 16, Association Avenue, Ilupeju, Lagos from 1976 to 1983 and at No. 10 Ajayi Aina Street, Ifako, Gbagada, Lagos State from 1983 – 1993 when the cohabitation ceased between them. The marriage is blessed with two children: Chinedu Aguolu, male, born on 26th of May, 1976 and Chioma Aguolu, female, born on 13th of October 1978. At the close of evidence, the trial Court directed parties to file their respective written addresses. Both parties filed and exchanged their written address. However, the trial Court had to further direct the parties to file a supplementary address on the issue of the settlement of properties, which parties also did.

The trial Court presided over by His Lordship, the Honourable Justice S.B.A. Candide-Johnson proceeded to deliver its judgment on the 22nd day of June, 2021, wherein it found that the parties have lived apart for more than 22 years and have significantly shown that no love or marriage is subsisting between them. Thus, the trial Court made an order of decree nisi dissolving the marriage between them.

With respect to the settlement of properties, the trial Court relying on Section 72(1) and (2), made an order that the Appellant shall be entitled to the property situate at Highbrow Rumuuokwuta, Obio-Akpor LGA, Port Harcourt, Rivers State.

Dissatisfied with the settlement of properties, the Appellant approached the Court of Appeal.

ISSUE(S) FOR DETERMINATION:

The Court determined the appeal on the sole issue, viz:

“Whether the learned trial Judge was right in law and in equity, under the facts and circumstances, in settling only one of the several matrimonial properties on the Appellant, thereby leaving the rights of the parties to all other matrimonial properties unresolved?”

COUNSEL SUBMISSIONS:

The Appellant’s Counsel in support of this issue argued that the trial Court was properly guided by the applicable principles of law and thus rightly determined that the Appellant was entitled to settlement of matrimonial properties. He however submitted that the trial Court treated the Appellant’s case as though it was one brought under or pursuant to S. 72(2) of the Matrimonial Causes Act, which is not their case because, according to him, that provision applies to an application for the whole or part of property dealt with by ante-nuptial or post-nuptial settlements. Counsel argued that that was not the Appellant’s relief in her substantive action by way of cross-petition, which bothers on division of matrimonial properties on a 50-50 weighted proportion. Consequently, he submitted that the trial Court was wrong in law in reasoning that having previously acquired one of the matrimonial properties in the Appellant’s name, that is the only property she is entitled to. He referred this Court to the case of MGBEAHURUIKE vs. MGBEAHURUIKE (2017) LPELR – 42434 (CA) AT PAGE 12 and argued that the factors to be considered in settlement of matrimonial property are:

(a) Whether or not the property in question was acquired in the course of the marriage,

(b) What the contribution of each of the parties to the cost of acquisition was, and

(c) What is just, fair and equitable in the circumstances in settling the property.

With respect to the first requirement, Counsel relied on the case of MUELLER vs. MUELLER (2006) 6 NWLR (PT. 977) 627 and stated that the name upon which the property is acquired does not affect the fact that the property would be treated as a matrimonial property which may be settled. He also argued that the contribution of a party towards the development of matrimonial properties and regardless of the success of the business of either spouse, which need not be quantified by the Court in monetary terms, the properties will be regarded as products of their joint efforts. He called to his aid the case of OGHOYONE vs. OGHOYONE (2010) 3 NWLR (PT. 1182) S64 AT PAGE 583- 584. Relying on the case of KAFI vs. KAFI (1986) 3 NWLR (PT. 27) 175 AT PAGE 18. Learned Counsel argued to the effect that a full-time housewife has made contributions towards the home and her husband’s business, and these should be considered in settling property on her. Finally, he argued that the power of the Court under S.72(1) of the MCA shall be exercised judicially and judiciously in the circumstances of the case and where the appellate Court holds that the trial Court’s ancillary power was not so exercised or if the trial Court’s order was erroneous in point of law, then the Appellate Court will exercise its judicial powers to interfere with the exercise of the trial Court’s discretion and make an appropriate order of settlement. He therefore urged the Court to allow the appeal and in addition to the order for settlement already granted by the trial Court, order that the outstanding matrimonial properties be distributed in the manner proposed by the Appellant representing a 50-50 sharing proportion.

The Respondent, on his part, contended first that the list of properties highlighted by the Appellant in paragraph (10) of her cross-petition on page 86 of the Record of Appeal was incorrect as there had been an encroachment on one of the properties while the government had acquired another of the property. He contended that the correct list of properties as at 2011 before the case came up at the trial Court in 2015, was as stated in his Answer to the Appellant’s cross-petition as follows among others:

1. The property at 10, Ajayi Street, Ifako, Gbagada, Lagos is the Petitioner’s residence and the other part thereof was put on lease for his upkeep as a retiree.

2. The property at No. F 57 Housing Estate. Onitsha, Anambra State was old in 2011 at a giveaway price to solve some personal problems.

Counsel argued that the above position of the Appellant as stated in her Grounds of Appeal and also argued in paragraph 16 of her brief, to the effect that the Court should discountenance Section 72(1&2) of the Matrimonial Causes Act in the settlement of property of the marriage in this Appeal, is fatally wrong, ill-conceived and amounts to ousting the powers of the trial Court to act within the provisions of the Law guiding the settlement of property. Respondent’s Counsel further argued that under the statutory marriage, one of the ways in which the Court assesses justice and fairness is when the party asking for property to be settled on him/her, shows or establishes that he/she has contributed in concrete terms to the acquisition of such property. He argued that in KAFI vs. KAFI (1986) 3 NWLR (PT 27) 175, which the Appellant also heavily relied upon, the Petitioner, Mrs. Kaf,i was a housewife who gave all necessary moral and financial support to the Petitioner (husband) apart from performing all domestic duties as a wife and this was established and that the Trial Judge said in his judgment that he accepts her evidence and therefore finds that she contributed towards the purchase of some of the lands on which the houses (now said to be belonging to the husband/respondent) were built as well as to the success of the business of the husband/Respondent. Hence properties can be regarded as the product of their joint efforts and she therefore deserved to have a property settled on her for her benefit and that of the children by virtue of Section 72(3) of the Matrimonial Causes Act 1970, irrespective of what the husband/respondent would want to do further for the children.

DECISION/HELD:

In the final analysis, the Court dismissed the appeal.

RATIO:

MATRIMONIAL CAUSES- SETTLEMENT: Whether party who claims entitlement to settlement of property in their favour ought to place materials before Court

“I have combed the records of appeal before this Court and the processes, which the Appellant relies on, including the Brief of Argument filed in this appeal. The parties, particularly the Appellant, took her time to demonstrate to the satisfaction of the Court that the marriage has broken down irretrievably by the weighty allegations levied against the Respondent. However, it appears that the Appellant hopes that the same allegations which ensures the dissolution of the marriage would also suffice for the settlement of property but that is not the law. The dissolution of marriage is governed by Section 15 of the MCA while settlement of property is governed by Section 72 of the same Act. A party who wishes for settlement of property must demonstrate to the Court, (1) that the property is a matrimonial property; (2) what is his contribution to the acquisition of that property; and (3) that it is fair, just and equitable to settle such properties. The parties are at consensus that the properties so listed by the Appellant and as updated by the Respondent were properties acquired during the pendency of their marriage. However, there is nothing to indicate her contribution to entitle her to the settlement of those properties. It is not our law that once a petition is filed for dissolution of marriage, then the Respondent to the suit can demand that the Petitioner share equally everything he owns. It should be emphasized that matrimonial property is not limited to one party hence, the need to place material facts demonstrating the facts and circumstances surrounding the parties and the properties and why the Court should make an order for the settlement of such property(ies) in a manner that is just, fair and equitable. In AKINBUWA vs. AKINBUWA (1998)7 NWLR (PT. 559) 661 @ 676 – 677 PARA H – D, this Court, per Rowland, J.C.A. (as he then was) held that: “It must be mentioned that settlement of property has always been a thorny issue in matrimonial proceedings. The power of the Court to make settlement of properties for the benefit of either of the spouses is contained in Section 72(1) of the Matrimonial Causes Act, 1970 which provides as follows:-“That Court may, in proceedings under this Decree, by order require the parties to the marriage, or either of them to make for the benefit of all or any of the parties to, and the children of the marriage, such settlement of property to which the parties are; or either of them is entitled (whether in possession or reversion) as the Court considers just and equitable in the circumstances of the case. “After going through the evidence adduced by the parties as contained in the record vis a vis the arguments contained in the three briefs – the appellant, the respondent and the appellant’s reply brief, I am of the view that the settlement of the properties between the appellant and the respondent by the trial Court was fair, just and equitable and should not be disturbed by this Court. In Fribance vs. Fribance (1957)1 All E.R. 357 at 360 C.A., Denning L. J. (as he then was) said: “In the present case, it so happened that the wife went out to work and used her earnings to help run the household and buy the children’s clothes, whilst the husband saved. It might very well have been the other way round…. The title to the family assets does not depend on the mere chance of which way round it was. It does not depend on how they happened to allocate their expenditure. The whole of their resources were expended for their joint benefit ……. and the product should belong to them jointly. It belongs to them in equal shares.” See also Ulrich vs. Ulrich (1968) 1 All ER 67 C.A.” Nevertheless, in the instant appeal, there is nothing before the Court to demonstrate that that the parties who have lived apart for more than 22 years should share everything one of them owns 50-50. The Appellant therefore cannot merely state that the Court must make an order for settlement of the matrimonial property on a 50-50 proportion without showing the Court the material facts upon which to believe that such order would be just, fair and equitable. It is correct that contributions need not be financial as stated in the authority of KAFI vs. KAFI (1986) 3 NWLR (PT 27) 175, which both parties relied on and argued in their briefs. However, it is required that for the Appellant to lay claim to what she referred to as matrimonial property, she would need to demonstrate such entitlement beyond merely being married to the Respondent, a marriage which was deserted some 22 years ago. The authorities heavily relied on by the Appellant involves conspicuous demonstrations of the basis upon which the parties who sought the settlement of properties were granted such orders. In the instant case, there was a dilemma prompting the trial Court to further direct parties to file additional address on the settlement of properties visible from the record placed before this Court. Consequently, upon its finding of facts, the trial Court exercised its discretion in favour of the Appellant in its judgment. Unfortunately, the Appellant is not satisfied with the decision of the trial Court and has appealed, insisting on a 50/50 weighted proportion of the properties of the Respondent, which she referred to as matrimonial properties. She, however, failed to show how the finding of the trial Court is unfair.” Per DANLAMI ZAMA SENCHI, J.C.A.

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