How Judges Decide Maintenance in Divorce Cases?

CASE TITLE: OMOJAFOR v. OMOJAFOR LPELR-83400(CA)                                          

JUDGMENT DATE: 23RD MARCH, 2026

JUSTICES: TUNDE OYEBANJI AWOTOYE, J.C.A.

OKON EFRETI ABANG, J.C.A.

UWABUNKEONYE ONWOSI, J.C.A.

PRACTICE AREA: MATRIMONIAL CAUSES

FACTS:

This appeal borders on Maintenance.

This is an appeal against the judgment of the High Court of Lagos State sitting at Lagos Judicial Division, delivered by HON. JUSTICE K.O. Dawodu on 18th day of May, 2023.

The Appellant and the Respondent contracted a statutory marriage on 15th May, 2010 at a licensed placed of worship, St. Leo’s Catholic Parish, Ikeja, and the said marriage did not produce any child. Due to rancor and/or misunderstanding between the Appellant and Respondent on the allegations of sexual infertility of the Respondent, the latter, on 23rd December, 2015, deserted the matrimonial house at House 2, HLS Estate, Jemibewon Street, Ogudu GRA, Lagos State. The Respondent (who was the Petitioner at the trial Court) filed a petition dated 26th February, 2020 against the Respondent, seeking for dissolution of the marriage.

Upon service of the petition, the Appellant, who was the Respondent at the trial Court, filed an answer and cross-petition dated 5th March, 2021 against the Respondent in this appeal, seeking for dissolution of marriage and lump sum maintenance of N20,000,000.00 (Twenty Million Naira, Only).

The trial Court delivered its judgment dismissing the Respondent’s cross-petition and claim for lump sum maintenance of N20,000,000.00 (Twenty Million Naira, Only). Dissatisfied with the judgment of the trial Court, the Appellant appealed to this Court.

ISSUE(S) FOR DETERMINATION:

The Court determined the appeal on this sole issue:

“Whether this Court exercised its discretion judicially and judiciously in refusing to grant the Appellant’s claim of N20,000,000.00 (Twenty Million Naira, Only) for maintenance?”

COUNSEL SUBMISSIONS:

It is the argument of the Appellant’s Counsel that Section 70 of the Matrimonial Causes Act, 1970 gives Courts powers to make orders that maintenance be paid weekly, monthly, yearly, or as a lump sum to the spouse (and children) of the marriage and in ordering maintenance, the Court is required to consider what is just and equitable in the circumstances of a case, having regards to the means, earning capacity and conduct of the parties to the marriage, and the age and position of the children, if any. He further submitted that an award of maintenance is a discretionary remedy but in awarding same, the Court is to be guided by all circumstances of the case, including properties and other financial resources of the party to which the maintenance order applies and the length of time the parties were married. He referred this Court to the cases of AMAH V. AMAH (2016) LPELR-41087 AND KPILAH V. NGWU (2018) LPELR-45395 and submitted that it has been upheld in a galore of cases that the purpose of maintenance is to ensure that the wife, for instance, was able to live approximately in the position to which she had been accustomed to before her petition for divorce was brought before the Court. He further submitted that maintenance is two folds: maintenance per se and maintenance pending the disposal of proceedings. He elaborated on the factors that guide the Court in exercising its discretion to award maintenance such as the means, earning capacity and conduct of the party. According to the Appellant’s Counsel, the conduct of parties, is relevant in maintenance proceedings because, for example, a party to a marriage who claims financial relief must proof that he or she is not a guilty party and that he or she was not responsible for the breakdown of the marriage. He referred this Court to the case of ONYIA V. ONYIA and an English case of CUNNINGHAM V. CUNNINGHAM. He also referred this Court to the case of NAKANDA V. NAKANDA in which the Court held that the unreasonable delay on the part of the party in bringing an application five years after she had left her matrimonial home was enough to make the Court refuse the application for maintenance. He further argued that the provision of “all other relevant circumstances” under Section 70 of the MCA for award of maintenance is an omnibus condition which gives the Court wide scope of operation in the exercise of its discretion and that maintenance of a party to a marriage is not like a claim for special damages where the claimant must strictly prove his entitlement to such award before same can be awarded by the Court.

Relying on the case of DR. AKINREMI NANNA V. MRS. EKPEHOSE MARYANNE NANNA (2006) 3 NWLR (Pt. 966) 1 at 12-13, the Appellant’s Counsel submitted that a man has a common law duty to maintain his wife and children and the husband can be compelled to find them necessaries such as meat, drink, clothes, etc. suitable to the man’s degree, estate or circumstance and the said duty is not contractual in nature. The Appellant’s Counsel posited that in the exercise of its judicial discretion to award the relief of maintenance, the Trial Court did not consider the facts and evidence adduced by parties and what was just and equitable in the circumstances of the case with particular regards to the means, earning capacity, conduct of parties to the marriage and other relevant circumstances. He further contended that whether maintenance is permanent (that is till the death of either party) or temporal can be based on age, education, occupation etc. In one case, where the wife was in her 60s, the Court granted  generous award for the rest of her life based on the fact that she was already too old to work or be optimally productive. He further maintained that maintenance orders have also been granted on a rehabilitatory basis that would support a spouse through a transitional period and that most maintenance orders terminate on the remarriage of the spouse since the presumption is that maintenance is no longer required. According to the Appellant’s Counsel, the Appellant, in order to satisfy the conditions for award of maintenance, pleaded facts and gave evidence in respect of conduct and earning capacity of the Respondent in answer to the petition at paragraphs 3,4,5,6,7, 8 and 9 of her answer to the petition (contained on pages 27-28 of the Record of appeal).

He contended that the Appellant served interrogatories dated 8th February, 2021 on the Respondent (Petitioner), as evidenced on pages 89-90 of the Record of Appeal) with a view to obtaining information to assist the lower Court to assess a sum for maintenance but the Respondent did not respond to the interrogatories and he urged this Court to apply its discretion and award maintenance generously in favor of the Cross petitioner in the circumstances as fair and equitable.

The Respondent’s Counsel argued that Section 70(1) of the Matrimonial Causes Act makes clear provisions regarding the grant of maintenance in matrimonial causes and that the said section provides that:

“Subject to this section, the Court may, in proceedings with respect to the maintenance of a party to a marriage, or of children of the marriage, other than proceedings for an order for maintenance pending the disposal of proceedings, 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…”

According to the Respondent’s Counsel, the legal implication of the use of the word “may” in the above provision is that the grant of maintenance orders in matrimonial causes is a matter for the discretion of the Court, which discretion must be exercised judicially and judiciously and not exercised arbitrarily by the Courts or in a vacuum. He cited the case of AJAYI V. SECURITIES AND EXCHANGE COMMISSION (2009) 13 NWLR (Pt.1157) 1 at 26 Paras. D-E.

He maintained that what is to be considered by the Trial Court before making an order of maintenance is the means, earning capacity and conduct of the parties. In canvasing argument on the capacity, the Respondent’s Counsel opined that given the fact that there are no children of the marriage, the Appellant does not suffer any financial disability that would ground an order of maintenance in her favour since the Respondent admitted, during cross-examination (on pages 9-42 and page 134 of the Record of appeal), that she is a woman of means who occupies the position of a banker/branch manager with Stanbic IBTC bank – one of the top 10 banks in Nigeria. He also opined that the grant of maintenance to the Appellant will be punitive in nature and same will visit great hardship on the Respondent (Petitioner). He recommended to this Court the case of IGWEMOH v. IGWEMOH (2014) LPELR-46707(CA). As regard conduct of parties, the Respondent’s Counsel contended that the Appellant (Respondent failed to adduce any cogent and/or compelling evidence of unreasonable behaviour/conduct of the Respondent to warrant the grant of maintenance in her favour, given the fact that the averments in paragraphs 1 – 11 of the Appellant’s answer to the petition and paragraphs 7 (a) – (t) of the Appellant’s cross-petition were duly controverted by the Respondent vide his reply to the answer and answer to the cross-petition and that it would therefore be unfair and highly prejudicial for the Trial Court to have construed that the Respondent exhibited unreasonable behaviour where no cogent and compelling evidence was adduced by the Appellant (Respondent) to substantiate that assertion. He cited the case of OSUJI V. EKEOCHA (2009) LPELR-2816 (CA) and A.F. SKULD V. M. V. SEALION (2006) 5 NWLR (PT.973) 286 at 297, Paras. C-E (CA).

Furthermore, Counsel argued that, Section 82 of the Matrimonial Causes Act provides that: “For the purposes of the Act, a matter of fact shall be taken to be proved if it is established: (a) To the reasonable satisfaction of the Court. (b) Where a provision of the Act requires the Court to be satisfied of the existence of any ground or fact or as to any other matter, it shall be sufficient if the Court is reasonably satisfied of the existence of that ground or fact, or as to that other matter. He referred this Court to the cases of BIBILARI v. BIBILARI (2011) 13 NWLR (Pt.1264) 233 and GEORGEWILL v. GEORGEWILL (2022) LPELR-56914 (CA).

Relying on the case of IGWEMOH v. IGWEMOH (Supra), the Respondent’s Counsel argued that sentiment or sympathy does not command any place in judicial deliberation or overrides the rules of evidence, particularly the burden of proving particular facts positively asserted by the party, and submitted that the Appellant has failed to adduce cogent and compelling evidence which meets the standard of proof under Section 82 of the Matrimonial Causes Act and Section 70(1) of the Matrimonial Cause Act to warrant the exercise of the Court’s discretion to grant the maintenance sought. He maintained that the Appellant did not present any evidence before this Honourable Court to substantiate the assertions that the Respondent left unpaid rents and utility bills for the Appellant when he left the matrimonial home as Exhibit R2, (the Appellant’s statement of account on page 107 and 108 of the Record of Appeal) and the Appellant’s testimony that the Respondent knew of his medical condition that he would not be able to impregnate a wife as at the time he married the Appellant but hid same from the Appellant, and that the petitioner informed her that the result of the medical test was sent to his home address and when his mother saw it, she was enraged is hearsay which has no evidential value.

DECISION/HELD:

In the final analysis, the appeal was dismissed.

RATIO:

MATRIMONIAL CAUSES – MAINTENANCE: Principles governing the grant of maintenance order in matrimonial causes

“It is the law that the factors listed in Order XIV Part 1 Rule 4 (4) of the Matrimonial Causes Rules for grant of claim for maintenance cannot be presumed or taken for granted by the Court as Courts do not embark on conjecture or guess work. Where an applicant prays the Court to exercise its discretion in its favour judicially and judiciously, it is its duty to place before the Court sufficient materials upon which the Court will rely in granting his application and where it fails to disclose its income, property, financial commitment or capacity to earn income satisfactorily in an application for maintenance, the Court should not grant same. The above sentiments were expressed in the case of OMONZANE V. OMONZANE (2020) LPELR-52220(CA) (Pp. 36-39 paras. D) as follows:

“…In applications of this nature, I am of the view that the factors to be considered before a Court can make a maintenance award should include – parties’ income; – Earning capacity and implication, – Properties, – Financial resources, – Financial needs and – Responsibilities as laid out in Order XIV Part 1 Rule 4 (4) of the Matrimonial Causes Rules. The factors listed above cannot be presumed or taken for granted by the Court. See OLU-IBUKUN VS OLU-IBUKUN (1974) 9 N.S.C.C. PAGE 91. – IBEABUCHI v. IBEABUCHI Unreported Decision of the Court of Appeal in Appeal NO-FCA/ES/82 delivered in September, 1982. In the affidavit in support of the application and the further affidavit, the Respondent failed to disclose her income, property, financial commitment or capacity to earn income satisfactorily. The Trial Court also did not consider the Counter Affidavit before heaping the maintenance responsibility upon the Appellant. The intendment of the drafters of the laws is to enable parties in this type of situation live within their means. They are not expected to live a fake life… This Court has held in several authorities that the exercise of discretion is not based on the mere figment of the person doing so but upon the facts or circumstances necessary for the proper exercise of that discretion. In other words, it is not an indulgence of a judicial whim, but the exercise of judicial Judgment based on fact, guided by the law or the equitable decision. See WILLIAMS VS HOPE RISING VOLUNTARY FUNDS SOCIETY (1982) ANLR PAGE 1 – OKERE VS NLEM (1992) 4 NWLR PART 234 PAGE 132. – UBA VS G.M.B.H & Co (1989) 3 NWLR PART 110 PAGE 174. – C.B.N. VS OKOJIE (2002) 3 S.C. PAGE 99…”

In view of the fact that the Appellant did not disclose her income earning, property, financial commitment or capacity and income earning, property, financial commitment or capacity of the Respondent so as to convince the Trial Court to make an order for maintenance in her favour, in addition to the fact that Courts cannot speculate on the income, property, financial commitment and capacity of the Appellant and the Respondent in order to make an order for maintenance in her favour, both the Trial Court and this Court are legally incapacitated to make an order for maintenance in her favour. It is also a trite law that maintenance is intended to provide for the needs of the wife and not a mark of disapproval for the husband’s conduct, and given the changes sweeping across our society today and the gravitation towards gender equality, Courts are fast moving away from the old rule whereby they virtually order financial provisions in favour of the wife. The wife must lead evidence to support her claim for maintenance, and her earning capacity before she would be entitled to maintenance, because a husband must not be impoverished or sent to an early grave under the thin guise of obedience to an invitation by the wife to Court to award her maintenance. See MUELLER v. MUELLER (2005) LPELR-12687. Therefore, it is the law that where the status or standing in life of the party who applies for maintenance is parallel to that of the adverse party, the claim for maintenance is unsustainable. See ENWEZOR v. ENWEZOR & ANOR (2012) LPELR-8544 (CA) as follows:

“Moreover, the appellant’s claim for maintenance is unsustainable as her status or standing in life is parallel to that of the respondent. In this case the appellant was, at that time, an Assistant Chief Administrative Officer on GL.13 which was exactly equivalent mutatis mutandis to that of the respondent who was an Assistant Chief Accountant on the same salary grade level…”

From the facts of this case and evidence before us, the Appellant is a banker with Stanbic IBTC Bank Plc (as contained on pages 11 and 130 of Records of appeal), while the Respondent is an Advertising Practitioner (as evidenced on pages 3 and 125 of the Records of appeal). The point I make here is that the Appellant and Respondent have parallel status and/or are gainfully employed. A husband cannot be sent to an early grave or a load of maintenance heaped on him to weigh him down merely because he took a woman in marriage. Thus, Section 70(2) of the Matrimonial Causes Act and Order XIV Rule 4(4) of the Matrimonial Causes Rules provides for the conditions and factors to be considered to balance the “equation” in all circumstances, and rule out sentiment. Indeed, the society’s clamour for gender equality, in addition to the fact that Courts are fast moving away from the old rule where husbands were generally expected to provide maintenance for their wives, coupled with the fact that maintenance is intended to provide for the needs of the wife and not a mark of disapproval of the husband’s conduct; in the instant case, it will be tantamount to taking a pound of flesh from the Respondent and a bonus to the Appellant for this Court to make an order directing the Respondent to pay maintenance of N20,000,000.00 (Twenty Million Naira, Only) to the Appellant.” Per ONWOSI, J.C.A.

To read the full judgment or similar judgments, subscribe to Prime or Primsol