Pursuant to Section 70 of the Matrimonial Causes Act LFN 2010 (MCA), the court may, in proceedings with respect to the maintenance of a party to a marriage, or of children in the marriage, 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.

Section 71 (1) MCA provides that 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.

More importantly Section 72 (1) MCA provides the court may in proceeding under the Act 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 a 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 each case.

The courts have sometimes held that non-financial contributions by a spouse (in most cases, the wife) e.g. tending to the house, payment of bills and rates, attending to the business of the man which though relieve the man of some domestic and financial burdens and enable his business to progress do not entitle the wife to a share in the matrimonial property purchased solely by the man. This requirement of the law in the area of distribution of matrimonial property is not only negative, but wrong as it goes contrary to the provisions of the Matrimonial Causes Act provided above which provide for the principle of equity and justice as the major factor guiding the exercise of the distribution of family assets by the court.

Griffith L.J. indicated the way the court should approach the problem in the English case of Bernard v. Joseph[1] by saying that:

… Often where a couple are living together and both are working and pooling their resources, which one of them pays the mortgage may be no more than a matter of internal accounting between them. In such a case the judge must look at the contribution of each of the “family” finances and determine as best what contribution each was making towards the purchase of the house. This is not to be carried out as a strictly mathematical exercise; for instance, if the man was ill for a time and out of work so that the woman temporarily contributed more, that temporarily state of affairs should not increase her share, nor should the share be decreased if she was temporarily unable to work while having a baby. The contributions must be viewed broadly by the judge to guide him to the parties’ unexpressed and probably unconsidered intentions as to the beneficial ownership of the house.

Also, considering the fact that a marriage contract is different from every form of business partnership where parties are under duty to keep records of daily transactions and give account, Lord Morris[2] succinctly recognized that:

When two people are about to be married and when they are arranging to have a home in which to live, they do not make their arrangement in the contemplation of future discord or separation. As a married couple, they do not, when a house is being acquired, contemplate that a time might come when decisions would have to be made as to who owned what. It would be unnatural if at the time of acquisition, there was always precise statement or understanding as to where ownership lies.

The Nigerian Case

In the case of Kafi v. Kafi,[3] the respondent claimed for the settlement of the property at 15, Adeola Adeleye Street, Ilupeju, Lagos “for the benefit of the children of the family and the respondent as may be just” stating that the property was jointly purchased and or developed by the appellant and herself. The appellant contented on the other hand that the respondent was entitled to the property. The respondent in the affidavit of means sworn to in support of her claim averred as follows:

“That I managed the medicine shop at IA Ereja Street, Ilesha when the petitioner moved to Lagos in June, 1987 to open the medicine shop at Obun Eko, Lagos.

That I was responsible for the care and feeding of all the company’s customers who came from then Eastern Nigerian and Cameroon to purchase medicine from petitioner.

That apart from contributing morally and financially to the petitioner’s wealth and towards the construction of the building built in the name of the petitioner, I was responsible for:

  1. Buying of building materials needed by the workmen on the building sites
  2. Supervising the workmen at sites most especially when the petitioner was away on business trips, holidays or indisposed
  3. Preparing food for workers building the house and sometimes fetching and providing workers with water for use from Surulere to Ilupeju with the scarcity of water at Ilupeju
  4. Drafting of all business letter of Ebenezer Chemist Ltd. to foreign manufacturers.

The trial judge accepted the evidence of the respondent and thus had no problem of holding that she contributed to the development of the properties as well as to the success of the business of the appellant and on the basis of this finding, the property was regarded as the product of their joint efforts. The court transferred the property to her, the appellant having some other houses.

This decision is commendable as it put into consideration the justice and equity of the case, however, it is worthy of note that the contributions of the respondent are enormous and compelling such that the court ought not reasonably to have done otherwise. As a matter of fact, some other Nigerian judges have not breathed justice and equity into section 72 of the MCA. In Sodipe v. Sodipe[4] where there was no evidence of direct financial contribution, the court, although coming to the conclusion that the matrimonial property was valued at ten million naira, casually ordered a lump sum of N200,000 (Two Hundred Thousand Naira) only to the estranged wife who spent forty three years in the marriage. From the provision of Section 72(1) of the MCA, in determining how the property should be settled, the main concern of the court should be the consideration of justice and equity. Nigerian judges in applying Section 72(1) of the MCA have exercised too narrow an interpretation under the cloak of “what is just and equitable in the circumstances of each case.”

The court however subsequently held, and rightly so, in the case of Akinbuwa v. Akinbuwa[5] that the court shall have regard to what is fair and equitable based on the evidence adduced by the parties at the trial in acquisition of the properties involved in the settlement of property in matrimonial proceedings.

In Akinbuwa’s case the appellant petitioned the Ondo State High Court, Akure for the dissolution of his marriage to the respondent. The respondent in turn cross-petitioned for the dissolution of the marriage and also claimed custody of the children of the marriage, maintenance, and settlement of some of the properties of the marriage. The appellant’s grounds dealt with the fact that the respondent behaved in a manner in which the appellant could not reasonably be expected to continue living with her (he alleged use of juju by the respondent). The respondent’s facts in support of the sole ground for cross-petitioning (irretrievable breakdown of marriage) were centered on desertion; making of the respondent to swear to the appellant’s native idol that she would be loyal to him; and physical violence. The trial court in its discretion and based on the evidence before it settled the property equally between both spouses.

The Court of Appeal considered Sections 71(1) and 72(1) of the Matrimonial Causes Act 1970 and upheld the decision of the trial court. The court relied on the case of Fribance v Fribance[6] where Lord Denning 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.

The court also held that reliance on technicalities would usually lead to injustice and justice can only be done if the substance of the matter is examined. It relied on the case of State v Gwonto[7]  to prove this point.

It is submitted, based on the foregoing, that the Nigerian judiciary should pay attention to statute, which is superior to case law, and base its decision on the grounds of justice and equity upon a consideration of the circumstances of each case. Thus, if there is an existence of case law which apparently goes contrary to statute the courts have an obligation to depart from such contradictory decision or draw a distinction between the latter and subsequent cases depending on the circumstance of each case.

Chisom Ozoemena

* Chisom Ozoemena. LL.B (Hons), University of Nigeria.

[1] (1982) Ch. 391 at 403-4; (1982) 3 All ER 162,170.

[2] Pettit v. Pettit (1969)2 All E.R. 385,407.

[3] (1986) 3 NWLR (pt.27) 175. See Generally Sagay, I., Nigerian Family Law [Principles, Cases Statutes and Commentaries] (Lagos: Malt House Press Ltd, 1999), pp. 502-510.


[4] (1990) 5 WRN p. 98.

[5] (1998) 7 NWLR pt.559 p. 661 CA.

[6] (1957) 1 All ER 357 CA.

[7] (1983) 3 S.C. 62 at 76.

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