The Supreme Court expounding on the concept of family stated, that the concept of family in the Nigerian context is wider than that of the English context. In the Nigerian context, family includes blood relationships in its widest connotation even to the hundredth degree of relationship by marriage that is a person's family and any person related to him or not who is wholly or mainly dependent upon him.

The classical definition of marriage was laid down in this case. The court stated in the case that marriage as understood in Christendom may be defined as the voluntary union for life of one man and one woman to the exclusion of all others.

In this case, the court held that a Russian marriage which according to the local law could be formally dissolved by mutual consent or at the will of one of the parties with merely formal conditions of official registration was in fact a union for life and a monogamous marriage.

The court held that with regards to the dissolution of marriage, the parties to a marriage cannot of their own will dissolve a marriage, as is the case in commercial contracts.

The court held that where there is evidence of marriage having been performed in Nigeria in accordance with the rules of the church and parties to it have lived as husband and wife and cohabited together, everything necessary to ensure the validity of the marriage should be presumed in the absence of decisive evidence to the contrary. See Section 33(2) (c), Marriage Act.

The court held that where there is evidence of marriage having been performed in Nigeria in accordance with the rules of the church and parties to it have lived as husband and wife and cohabited together, everything necessary to ensure the validity of the marriage should be presumed in the absence of decisive evidence to the contrary. See Section 33(2) (c), Marriage Act.

The court considered the legal presumption of marriage from cohabitation. The court stated that where a man and a woman have lived together as husband and wife over a long period of time and area generally known as such, the law presumes that the cohabitation resulted from a valid marriage unless the contrary is clearly proved.

The court defined family status in this case as being the standing or rank of an individual position within the family.

The court held in this case that a contract, the object of which is to prevent a person from marrying or which is a deterrent to marriage is void as being contrary to public policy.

In this case, the court held that marriage brokerage contracts, by which a person procures a marriage between two parties for reward is void.

In this case, the court held that a promise by a married man to marry a person who knows him to be already married is void, contrary to public policy and an encouragement to immorality.

The court held that a contract to marry may be elicited by the courts from the correspondences which passed between parties.

In this case, the court held that there is valuable consideration in a contract of marriage where at the request of the defendant and on a promise of marriage, the plaintiff travels a long distance for the marriage.

In this case, the court of appeal laid down the general principle that a contract to marry to which a married person is a party is against public policy and morals and is therefore void.

The court held that where a defendant in an action for breach of promise to marry was, to the plaintiff's knowledge married at the time the promise of the marriage was made, the action will fail on the application of the maxim ex turpi causa non oritur actio.

The court held that where the parties agree to marry on a particular day. The failure or refusal of one party to turn up for the marriage constitutes a breach.

In this case, the plaintiff promised to marry the defendant after the death of his father. During his father's lifetime, he announced his intention of not fulfilling his promise. The defendant, without waiting for the father's death, brought an immediate action for breach of promise to marry her. The court held that the defendant entitled to recover damages for the plaintiff's act, which amounted to a breach of promise to marry.

In this case, the defendant promised to marry the plaintiff in 1947. In 1957, the defendant married another woman in breach of his promise to the plaintiff. The court held that the act of the defendant constituted a breach and the plaintiff was entitled to damages.

In this case, court considered a situation where the promise to marry is made subject to a condition precedent. The parties in this case, while studying in England and Ireland respectively, agreed to marry each other. But the defendant made his promise conditional on obtaining the consent of his father to the proposed marriage. He, therefore, wrote to his father requesting his consent to the proposed marriage. For various family reasons his father refused to give consent. In 1959, the defendant married another woman and the plaintiff sued for breach of his promise to marry her. The court found as a fact that there was a condition precedent to the defendant's promise and held that where the promise to marry is only to be carried into effect on or after the happening of a certain contingency, that contingency must happen before the promise becomes actionable. The promise is however entitled to sue as on the breach of an executory contract where the promisor does any act whereby he would be incapable of performing the contract if and when the agreed contingency.

The court held in this case, that a defendant in an action for breach of promise to marry may plead fraud in his defense where the promise was made under fraudulent and false representation of the plaintiff. In this case, the defendant was led by the plaintiff to believe that her father would leave property to her on his death whereas in fact, the father had recently compounded with his creditors.

The court held in this case that a defendant may plead as his defense that the contract to marry has come to an end by mutual agreement of the parties or that the plaintiff has exonerated and discharged from his obligation. In this case, after the defendant had expressed a desire to terminate his engagement with the plaintiff, no correspondence took place between the parties for two years. The court found that the plaintiff had exonerated the defendant from his promise to marry before breach.

The court held that a defendant may put up a defense personal to the plaintiff, to an action for breach of promise to marry. In this case, the man was of a violent and ungovernable temper and threatened to ill-treat the defendant. The court held that the woman was not in breach for refusing to marry him.

The court held that in action for breach of promise to marry, the court is not limited to mere pecuniary loss to which the plaintiff has sustained, but may take into their consideration the injured feelings and wounded pride.

The court held that where an engagement is dissolved by the mutual consent of the parties, in the absence of agreement to the contrary, the engagement ring and presents made in contemplation of marriage must be returned by each party to the other.

In this case, the court held that where gifts are made by third parties in contemplation of marriage, if the marriage does not take place, such gifts must be returned to the donors.

In this case, the court held that an innocent party in action for breach of contract to marry may recover damages not only against the other party to the agreement but also against any third party who induced such breach. The third party, however, must be shown to have had actual or constructive knowledge of the contract to marry, and must have intended to procure its breach.

In this case, the court considered what constitutes interference by a third party in a contract to marry. The court held that interference includes direct persuasion, or procurement, or inducement, applied to the contract-breaker by the third party, with the knowledge of the contract and the intention of bringing about its breach.

The court held that it must be shown that a third party who induced the breach of the contract to marry, acted with an intention or purpose of causing damage to the plaintiff through the breach. It is immaterial whether the third party acted with malice or not.

The court held that where consent to a marriage is proved to have obtained by fraud, the marriage is annulled, not because of the presence of fraud but because of the absence of consent as the dishonest party procured the form without the form without the substance of the agreement.

In this case, the court formulated the effect of duress. The court stated that in order for the impediment of duress to vitiate an otherwise valid marriage, it must be proved that the will of one of the parties thereto has been overborne by genuine and reasonably held fear caused by threat of immediate danger (for which the party is not himself responsible), to life, limb or liberty, so that the constraints destroys the reality of consent to ordinary wedlock.

The court held that it is irrelevant that the party whose consent was obtained by fraud is more susceptible to pressure than a person of ordinary courage, the marriage obtained by fraud will still be void.

The court held that it is immaterial that in fact, a party making a threat in order to cause the other party to consent to marriage is incapable of executing it. All that is necessary is for the party whose consent is in issue to have believed that the threat was real, so as to affect the consent.

In the case, before the marriage was celebrated, the husband represented to the wife that he was a well-known pugilist. Influenced by the misrepresentation, she petitioned for nullity on the ground that she was mistaken as to the man she married. The court held that the action failed as the mistake was as to the attributes and not the identity of the respondent.

The court formulated the test applicable where a party to a marriage is insane. The court stated that the pertinent question would be whether the party was capable of understanding the nature of the contract into which he was entering, or was his mental condition such that he was incapable of understanding it. To ascertain the nature of the contract of marriage a man must be mentally capable of appreciating that it involves the responsibilities normally attaching to marriage. Without that degree of mentality, it cannot be said that he understands the nature of the contract.

The court stated in this case that consortium is the name for what a spouse enjoys by virtue of a bundle of rights, some hardly capable of precise definition.

In this case, the court held that it is necessary, in order to succeed, in an action against a third party for the loss of consortium, to prove that there was some positive act on the part of the third party which induced the spouse to leave and remain apart from the other spouse.

The court held that although an action for enticement may be brought against anyone who deprives a spouse of the consortium of the other spouse, the parents of a wife are exempted, as they owe her the parental obligation to be interested in her affairs.

The court held that an action for enticement which led to loss of consortium may lie against a brother-in-law of a wife who induced or persuaded her to leave the husband.

In the case, the court considered the status of advice given in good faith to a spouse which causes the other spouse loss of consortium. The court held that if a spouse solicits the advice of a third party, who gives such advice in good faith, he will not be liable.

In the case, the expatriate wife of a Nigerian sought the advice of her doctor on the question of separating from her husband to enable her to re-adjust herself and restore her emotional equilibrium, which had been disturbed by domestic conflicts. The advice offered, in good faith and on strong medical grounds, was that a period of separation from her husband would do her good. The court held that the defendant tendered his advice in good faith and on medical grounds, he was not liable for the departure of the plaintiff's wife.

The court considered the quantum of damages to be paid by a co-respondent to a petitioner for the loss of the wife stated thus; if a husband has a virtuous or devoted wife taken from him by the contrivance of another man, he is entitled to damages commensurate with the loss of such woman. If the wife is, however, of a different character a woman who readily and without any form of resistance commits a breach of marital obligations, her value is not the same as that of a virtuous and devoted wife.

The court declared in this case that marriage is not only a contract but a contract that changes the status and nationality of a woman.

The court held that marriage creates rights, duties and obligations of law, consisting of more than a civil contract. The court further held that marriage is a something more than a mere contract, though founded upon the agreement of the parties. It requires the consent of two parties. It creates a relationship between the parties that cannot be changed. It is an institution, a social relationship comparable to that between a parent and a child. The court further reiterated that marriage is the most important relation in life, and the foundation of the family and society without which there will be neither civilization nor progress.

The court stated in this case that marriage is not a mere contract, but a contract which creates status.

The court in defining status stated that the status of an individual in legal terms is the legal position of that individual in or with regard to the rest of the community. Marriage is a status.

In this case, the court reiterated that the very being or legal existence of the woman is suspended or subsumed during the marriage, or at least incorporated and consolidated into that of the husband, under whose wing, protection and cover she performs

The court held that upon marriage, a wife may use her husband's name. She may retain the surname, even after the marriage has been brought to an end either by divorce or death of the husband.

The court held in this case that marriage per se does not ipso facto give a wife the power to act as the agent of her husband so as to make him liable for her contracts.

The court defined a void marriage as one that will be regarded by every court in any case in which the existence of the marriage is in issue as never having taken place and can be so treated by both parties to it without the necessity of any decree annulling it; a voidable marriage is one that will be regarded by every court as a v al subsisting marriage until a decree annulling it has been pronounced by a court of competent jurisdiction.

The court held in this case that the fact of going through a statutory marriage ceremony with a third party during the subsistence of an Islamic marriage or customary marriage will render the statutory marriage void.

The Supreme Court held in this case that in order for a prior marriage by native law and custom to invalidate a marriage celebrated under the Act, the former must be established by a high degree of certainty.

The court held that the celebration of marriage by proxy is a matter of the form of ceremony and one that affects the lex loci celebrationis.

By section 33(2) (a) of the Marriage Act, a marriage contracted under the Marriage Act must be celebrated in a registrar's office or a licensed place of worship or a place prescribed in a special license. Any marriage celebrated in any other place will be void ab initio.

Where both parties to a marriage are aware that it is celebrated under false names, such marriage will be void ab initio. Section 33(2) (6) Marriage Act. In this case, the court held that the marriage between the parties was not invalidated because the wife used name Roberts before her marriage not to conceal her identity but to reveal it.

The court held in this case that the name acquired by marriage can only be superseded by a reputed name in cases where the name had been so far acquired by repute as to obliterate the name acquired by marriage.

In this case, the court held that in order to invalidate a marriage on the ground of want of due publication of bans, it is not sufficient to show that a party knowingly and consciously gave a wrong name. A willful intention to conceal identity must be proved.

The court held in this case that there was no marriage because there was an undue publication and the man had deserted the Royal Field Artillery and assumed a false name to avoid detention and prosecution.

In this case, the husband sought a decree of nullity on the basis that he was induced to marry his wife by her fraudulent declaration of love. The court did not grant the decree. Fraudulent misrepresentations about financial capacity, qualifications, beliefs or true personality are not sufficient to make out fraud for the purposes of nullity.

In this case, the wife married the husband in the erroneous belief that he was a well-known boxer. The court held that the marriage was valid, because the mistake was only as to the husband's quality or attribute.

In this case, the court considered and applied a very limited scope to the term "fraud." The court held that fraudulent misrepresentation must be so serious that one person, in relying on the untruth, could not be said to have truly consented to the marriage.

By virtue of section 3 (1) (d) of the Matrimonial Causes Act, where the consent of a party to a marriage is not real consent because that party is mistaken as to the identity of the other party or as to the nature of the marriage performed, the mistake of that party will make the marriage void ab initio.

A marriage is null and void where the consent of one of the parties is not real because that party is mentally incapable of understanding the nature of the marriage contract. In this case, the court stated that the general test is the fitness of the person to be trusted with the management of himself and his own concerns. Such a person has a disposing contracting mind, although it may be in a degree impaired.

The court held that where either of the parties to a marriage is at the time of its celebration lawfully married to some other person, such marriage will be null and void.

The court held in this case that in order to invalidate the marriage under the Marriage Ordinance on the ground of a prior marriage, it must be established with a high degree of certainty.

In this case, the Supreme Court considered the validity of a subsequent statutory marriage conducted by a husband and wife who are already married under Native law. The court held that where a husband and wife were first married under Native law and Custom but proceed subsequently to contract a marriage under English law, the latter, takes precedence over the former and guides their rights and obligations.

The general rule is that parties to a statutory marriage must not be within the prohibited degrees of consanguinity or affinity. However, two persons within the prohibited degree of affinity who wish to marry each other may do so by applying in writing to the high court judge who may grant permission if satisfied that the circumstances of the particular case is so exceptional as to justify the grant of the permission sought.

In the case, the application to marry was made by a father-in-law to his daughter-in-law after the latter was divorced for adultery with the former. The court refused the application on the ground that the circumstances could not be regarded as exceptional to justify the exercise of its discretion. See Section 3(1)(b), Section 3(3) section 4 and the 1st schedule of the Matrimonial Causes Act.

The court held that a party to a subsisting statutory or customary law marriage has no capacity to enter into another statutory marriage with another person.

The court held that where marriage is contracted outside Nigeria , the provision that no marriage in Nigeria shall not be valid where either of the parties thereto at the time of the celebration of such marriage is married by native law or custom to any person other than the person with whom such marriage is had does not apply. The validity of a foreign marriage will properly be determined by the application of the conflict rules as to the capacity to marry.

The absence of consent by either of the parties or where such consent was obtained by fraud or duress, misrepresentation as to the identity of the party or lack of the nature of the ceremony makes the purported marriage void ab initio. See Section 18 Marriage Act, Section 3(1) (d), Matrimonial Causes Act.

In the case, the petitioner alleged that she would not have consented to the marriage had the respondent not told her that he would reveal the pregnancy to her employers who a religious sect that would have terminated her teaching appointment as a result. The court in a considered decision held that the petitioner's evidence was not enough to rebut the presumption that she consented willingly and voluntarily to the marriage.

In this case, the court held that notwithstanding the absence of the consent of the father of the woman under Section 518 of the Marriage Ordinance, the marriage was valid within the meaning of the Marriage Ordinance.

The court held that parental consent is however not necessary for a valid statutory marriage if the parties are of age.

The court in this case held that the registrar's certificate is not evidence of the celebration of marriage.

When the parties to an intended marriage have obtained a registrar's certificate, the marriage must still be celebrated.

The court held in this case that the proceedings before the court did not constitute hearing and determination as envisaged by Section 15 of the Marriage Act. In the case, there was no hearing on the caveat entered by the respondent but the Chief Justice awarded costs and compensation to one side.

The court held in this case that church blessings do not constitute a marriage nor does it add anything to an existing civil marriage.

In the case, a priest blessed the customary law marriage of the parties and issued in printed form, a certificate in respect of the ceremony. The court held that the blessing of a customary law marriage does not constitute a monogamous marriage under the Act.

The court held in this case that the ceremony of "blessing" of marriage does not constitute a marriage under the Ordinance.

In this case, the court considered whether or not a statutory marriage nullifies a customary marriage. The court stated that it is a matter of common knowledge that most people in Nigeria, who contract marriages under the Marriage Act, undergo a form of customary marriage as a matter of practice and adherence to the practice as "traditional engagement" while others simply refer to it as solemnization of customary marriage. It is never intended by the practice that the marriage under the Marriage Act should nullify the customary marriage or engagement but rather it would supplement the practice of custom. The parties are of course aware that by applying the Marriage Act to their relationship, their marriage will become monogamous.

The reasoning of the court on the contract of a statutory marriage after a customary law marriage in this case was that a customary law and a statutory law marriage do not co-exist. The customary law marriage merges into the ordinance marriage and loses all its distinction and characteristics, its legal incidents and consequences, customary marriage cannot therefore create one set of legal rights and duties and ordinance marriage and another with respect to the same person at the same time.

The court was of the opinion that statutory marriage does not supersede the customary marriage but continues to co-exist with it side by side. The court further stated that statutory is merely superimposed on a customary marriage. The latter is extinguished, but co-exists with the former and the termination of the statutory marriage would not affect the continued existence of the statutory marriage.

The court reiterated in this case that where both customary law marriage and statutory marriage are celebrated, the two marriages and their respective incidents co-exist. The court stated that under Nigerian law, there are different types of marriages with different legal approaches as regards their incidents and dissolution.

In this case, the English court held that a potentially polygamous customary law marriage cannot be converted into a monogamous marriage merely because the parties intended it to be so.

The court held that if the marriage under the Act is subsequently dissolved where there was a double deck marriage, the customary marriage cannot survive as both marriages have simply come to an end.

In this case, the court explained Section 3 of the Marriage (Validation) Act of 1971 as only pertaining to those marriages contracted in contravention of the provision of the Marriage Act provided such marriages were purportedly celebrated under the marriage act whether or not celebrated in duly designated marriage districts or before duly appointed registrars of marriage or in duly appointed marriage offices.

The court in this case considered the effect of Section 3 of the Marriage Validation Act of 1990 on any purported defect of marriage celebrated in Biafra during the civil war and stated that if the marriage was valid, if its only defect was that it was celebrated in Biafra, then the Marriage (Validation) Act of 1971 had cured that particular and therefore the objection solely on the ground that it was celebrated in Biafra was not well founded.

In this case, the Court of Appeal held the marriage contracted by the plaintiff/respondent in Biafra as valid relying on the Marriage (Validation) Act, 1990.

Section 3 of the Marriage (Validation) Act 1971 now, Section 3 of the Marriage Act, 1990 provides that all marriages purported to have been celebrated under the marriage act between 30th May, 1967 and the coming into operation of the Act in the East-Central, Rivers and South Eastern states which would have been valid if celebrated in duly designated marriage districts, before duly appointed registrars of marriages and in duly appointed marriage offices, shall be and be deemed always to have been valid in law as if they had been celebrated with due observance of the requirements of the law.

The court held that marriage is consummated where the spouses use contraceptives or contraceptive sheaths or other mechanical forms of contraception.

The court held that if there is penetration, it is immaterial that either or both parties are sterile or that the degree of sexual satisfaction derived from the intercourse is not as great as it might be.

The court held in this case that the marriage was not consummated since the husband although capable of penetration will not sustain an erection for more than a short period of time.

In the case, it was stated that consummation requires ordinary and complete rather than partial sexual intercourse, including erection and penetration, but not necessarily leading to orgasm. It certainly need not result in conception, and the fact that the husband may be sterile or the woman is barren is legally irrelevant.

The court held that where the incapacity to consummate a marriage existed at the time of a marriage but was cured before the petition to dissolve the marriage, the marriage will not be voidable.

The court held that before a marriage is declared voidable on the ground of incapacity to consummate, the court must be satisfied that the defect is not curable by medical treatment.

The court held that an impotent person can petition for nullity on the ground of his impotency if it is proved that he was not aware of the existence of the incapacity at the time of the marriage.

The court held that the marriage between the parties would be annulled for non-consummation on the ground of the husband's impotence. In the case, the wife alleged that the husband was impotent and alternatively that he had willfully refused to consummate the marriage. See Section 5(1) (a), Matrimonial Causes Act.

In this case, the court held that the question of consummation of a marriage is primarily a question of fact. In the case, the wife petitioned for a decree of nullity on the ground of the husband's incapacity or in the alternative, his willful refusal to consummate the marriage and also on the ground of cruelty. The court granted the decree of nullity sought.

The court held that mere neglect to comply with a request to consummate is not necessarily the same as a refusal as a refusal implies a conscious act of volition. It must be shown that the refusal must be a conscious and free act of the respondent.

The court stated in this case that before there can be a refusal to consummate, there must be several requests, direct or implied, and an opportunity to comply with such request must exist.

The court held that the wife's requests to the husband to make the arrangements for a religious ceremony constituted an implied request for sexual intercourse which the husband had refused without just cause, as they were both Roman Catholics whose faith did not countenance matrimonial relations between them until there has been a religious ceremony even after the parties were both married in a registrar's office. The court held that there was wilful refusal by the husband to consummate.

In this case, the court held that under Section 12 of the Matrimonial Causes Act, for a court to find that there is wilful and persistent refusal to consummate, it should be satisfied that the marriage had not been consummated up to the commencement of the hearing of the petition

The court held that if a single act of intercourse was committed after the marriage, there will no longer be any basis for the allegation of wilful refusal to consummate.

The court held that a marriage is said to be consummated where the parties have full intercourse even though the husband is sterile and the same seem to be true where coitus interruptus is practiced.

The court stated in this case that the unsoundness of mind means insanity, and involves the incapacity of a person to manage himself and his affairs.

It was held in this case that once it is shown that the propositus suffers from some mental deficiency at the time of the marriage, the court will not embark on an assessment of the extent of the derangement.

The court held that mere dullness of intellect is distinct from insanity. Insanity involves the incapacity of a person to manage himself and his affairs.

The court held that a spouse who is of unsound mind or a mental defective is regarded by the law as being incapable of carrying on a normal married life and the other party to the marriage, is, therefore, allowed to petition for the nullity of the marriage.

The court held in this case that where a spouse is at the time of marriage subject to the recurrent attacks of insanity or epilepsy, the marriage will be voidable. This is so if the insanity recurs periodically, with intervals of quiescence in between.

The court held that while a marriage may have in fact taken place during a lucid interval where one of the parties is of unsound mind, in order for the marriage to be voidable, it is mandatory that the spouse must at the time be subject to further recurrence of attacks of insanity.

The Supreme Court held the marriage in this case voidable because one of the parties was subject to recurrent attacks of insanity. In the case, the wife had suffered two fits of unsoundness of mind before the marriage, but was not insane at the time the marriage was celebrated. She suffered two fits of insanity after the marriage. See Section 5(1) (iii), Matrimonial Causes Act.

The court held in this case that the burden of proving that a party was insane at the time of the marriage lies on the party asserting it.

A marriage is voidable where at the time of its celebration either party was suffering from a venereal disease in communicable form. The court in this case held that if it cannot be shown that a party is suffering from a venereal disease in communicable form at the time of marriage, the disease will not constitute a ground for divorce on the basis of adultery.

The court held that a respondent can rebut the prima facie case against him that he is suffering from a venereal disease in a communicable form by medical proof that he is not suffering from the disease.

The domicile of a person is where he has his true, fixed, permanent home and principal establishment and to which, whenever he is absent, he has the intention of returning.

The court held that domicile is the legal residence of a person and not a place to which business or pleasure may temporarily bring him.

In International law, domicile is the residence at a particular place, accompanied with positive or presumptive proof of intending to continue there for an unlimited time.

The court held that the reason for the rule that no person can be without a domicile is to link everyone with a legal system which may govern a number of legal relationships.

The court held that nobody can at any time have more than one domicile. An existing domicile is presumed to subsist until a new one is acquired.

The court considered the character of domicile of origin in this case. The court stated that the character of domicile of origin is one enduring, it holds stronger and is less likely shaken off.

The court held that a domicile of origin can be put in abeyance by the domicile of choice, but it cannot be lost by abandonment.

The court stated in this case that a domicile of origin put in abeyance by the domicile of choice revives automatically when a domicile of choice has been lost.

In this case, the Court of Appeal held that the petitioner's domicile of Singapore was not lost after he had lived in Nigeria for fourteen years due to business activities.

The court stated in this case that no man shall be without a domicile and to secure this result, the law attributes to every individual as soon as he is born, the domicile of his father, if the child is legitimate, and the domicile of the mother, if illegitimate.

The court held that the domicile of a legitimate child changes with that of his father. On the father's death, he will depend on his mother for a change of domicile if the change is in his interest.

The court held that on marriage, a woman automatically acquires the domicile of her husband. While the marriage subsists, the woman cannot acquire a domicile of her own. Her dependent domicile changes automatically with that of the husband.

The court held that where a marriage is voidable, being a valid and subsisting marriage until made void, the woman acquires the domicile of her husband.

In this case, the court held that a legitimate child born after the death of the father as well as an illegitimate child takes the domicile of his mother at the date of birth.

In the case the court affirmed the rule that an illegitimate child acquires the domicile of his mother at birth. In the case, the applicant was the father of a child born by a European lady out of wedlock. The applicant contended that the Nigerian law legitimizes a child born out of wedlock because at some point after the birth, the child was brought to Nigeria by the mother. The court held that the child had the domicile of his mother and could not be legitimized by Nigerian law.

The court held in this case that to prove animus manedi, which is the intention to reside permanently or at least indefinitely in a country, the fact of residence in such country is not enough.

In the case, the petitioner petitioned for divorce of her husband. The respondent raised the issue of domicile which was not included in the petitioner's statement of claim. It was however stated that the petitioner was born in Ogun state and the respondent in Lagos state. The court held the respondent was of Nigerian domicile.

In this case, the court held a French born person to have acquired a domicile in Nigeria. He had been in Nigeria for thirty-four years spending very short vacation abroad. He got married in Nigeria and the couple had their matrimonial homes in Nigeria for twenty-six years of their marriage. He had no house in France, he was advanced in age and both his parents were dead. The court held that he was of Nigerian domicile.

The court held that after the dissolution of marriage, a woman no longer depends on her husband for the change in domicile. She does not however automatically revert to her last domicile before she got married. She retains her husband's last domicile before the event, until she has acquired a new domicile of choice.

In this case, the court presumed a woman to be domiciled in England where the husband who was an Italian with an English domicile deserted her in England and returned permanently to Italy.

It was held by the court that the jurisdiction of the courts to entertain certain proceedings in matrimonial causes is based largely on the domicile or residence of parties.

The court held in this case that it must be shown by a wife instituting proceedings for divorce that she has been resident in Nigeria at the time of instituting the proceedings.

The Matrimonial Causes Act confers on the court jurisdiction based on a married woman's residence. It provides that a wife must have been resident in Nigeria at the time of instituting proceedings and has been so resident for the period of 3 years preceding the date and shall be deemed domiciled in Nigeria. See Section 7 Matrimonial Causes Act.

In this case, the court held a woman who maintained a home in England, spent 15 months abroad with her husband at his duty post, as being domiciled in England. The court held that the 15 months spent abroad with her husband at his duty post did not interrupt the period of residence in England.

The court stated in this case that there are strictly two types of domicile. One is domicile of origin, and the other, domicile of choice.

The court held that if both parents of an infant are dead, or if he is a foundling, his domicile changes with that of his guardian.

The court in this case considered what exceptional hardship means. The court stated that it is not possible to define with any precision what is meant by exceptional hardship or depravity. The imprecision of the concepts with the resultant impossibility of definition must have been deliberately accepted as appropriate by the legislature and is in itself an indication that the determination of what is exceptional is essentially a matter for the judge. All that can be said is that the hardship suffered by an applicant must be shown to be something out of the ordinary.

In this case, the court held that there must be a proof of sufficient cause to show that exceptional hardship would be occasioned on the applicant if leave to institute proceedings for a decree of dissolution of marriage is not granted by the court where the proceedings for a decree of dissolution is instituted within two years of the marriage.

In the case, the petitioner alleged that the respondent lied about his salary and failed to provide adequate allowance for food and health. It was held that the facts did not constitute exceptional hardship to ground a dissolution of marriage.

The court held that the following facts could constitute exceptional hardship, burning the applicant's certificates, engineering books and wearing apparels; threats to kill him, failure to cook for him and to perform other wifely duties, starving him of sex and desertion.

In the case, the petitioner contended that there was excessive demands when the petitioner was in poor health and had just returned from the hospital, physical violence, constant neglect and quarrelling. It was also alleged by the petitioner that the respondent had committed adultery with two women and with his cousin, infected her with sexual disease and sent her out of the house. It was held that there was exceptional depravity and granted the application for a dissolution of marriage.

The court stated to the effect that adultery during the two years accompanied with desertion, cruelty or violence will constitute exceptional depravity or hardship.

The court defined behavior in this case. The court defined behavior as being something more than a mere state of affairs or a state of mind, such as for example, a repugnance to sexual intercourse, or a feeling that the wife is not being as demonstrative as he thinks she should be. Such conduct may either take the form of acts or omissions or may be a course of conduct and it must have reference to the marriage.

The court described a habitual drunkard as one who consumes intoxicating liquor to an extent that makes him liable to become incapable of controlling his language and actions with due regard to the rights and feelings of others, or to his own safety and self-management.

The court held that habitual implies the frequent exercise of the habit of being a drunkard.

The court held in this case that to establish the ground of intoxication by stimulating drugs, the effect upon the marriage of such intoxication must be shown to have been material as opposed to minimal.

The court defined intoxication in this case. The court held that intoxication means a state of drunkenness involving excitement and or depression with external symptoms. The effect of the intoxication upon an individual person and upon the marriage itself must be considered and to establish the ground of intoxication by stimulating drugs, the effect upon the marriage of such intoxication must be shown to have been material as opposed to minimal.

The court held in this case that the test for unsoundness of mind is whether the respondent by reason of his mental condition is capable, according to the standard of a reasonable person, of managing himself and his affairs.

The court held that in order to meet the test for unsoundness of mind, the petitioner must satisfy the court that on the balance of probability, the respondent will not recover from the insanity.

Once the court decides that the unsoundness of mind exists in a form, it is immaterial that the insanity is not violent.

The court defined confinement as the exercise of control over a period without such relaxation for a substantial time as would indicate that the person was entirely free from control and was treated as a person from whom the condition of confinement had been removed.

The court held that confinement is to be treated as a status rather than as a physical feat of restraint under lock and key.

The court stated, to wit in this case; when reprehensible conduct or departure from the normal standards of conjugal kindness causes injury to health or an apprehension of it, it is cruelty if a reasonable person, after taking due account of the temperament and all the other particular circumstances would consider that the conduct complained of is such that the spouse should not on to endure it.

The court held that unreasonable refusal of sexual intercourse, nagging, habitual intemperate consumption of alcohol and inordinate sexual indulgences of the respondent with all sorts of women, especially the housemaids, were behaviors which the petitioner is not reasonably expected to put up with.

The court held that physical violence of a respondent is a behavior a petitioner is not reasonably expected to live with.

The court also held that excessive drinking of intoxicating liquor, inordinate sexual relationship with women of questionable character, starving the petitioner of normal sexual relationship and indulgence in late night parties are behaviors a petitioner is not reasonably expected to live with.

The court held that the court must consider the effect of the respondent's behavior on the petitioner and ask itself whether or not it is established that the petitioner cannot reasonably be expected to live the respondent. See Section 15 (2) (c) of the Matrimonial Causes Act.

The court stated in this case that it is the feeling of the petitioner that matters and if he says, 'I can no longer live with my wife, I find it intolerable to do', it cannot be seen how the court can find that it is not so.

The court held that the use of insulting and annoying words on the petitioner and his family amounted to a behavior the petitioner cannot be reasonably expected to live with.

The court held that practice of black charms, juju and talisman in the matrimonial home amounted to a conduct the petitioner could not be reasonably expected to put up with.

The court held that gambling is a conduct that is petitioner is not reasonably expected to put up with.

The court held that the unreasonable refusal of sexual intercourse, habitual consumption of alcohol and inordinate sexual indulgences of the respondent with different women particularly with housemaids, were weighty and unreasonable acts to expect the petitioner to reasonably live with the respondent.

The court stated in this case that where one spouse is guilty of adultery, or other matrimonial misconduct, if the innocent party fails to withdraw, he may forfeit his right to matrimonial relief on the ground that he has condoned or connived at the misconduct.

The court held in this case that the belief of a husband that adultery might have been committed by a wife was reasonable in the light of the conduct of the wife. The husband, a member of the armed forces, complained that his wife had infected him with gonorrhea when he came home on leave. On his return on a subsequent occasion, he found three men in the matrimonial home (one of whom was in the bedroom with his wife), and was refused admission into the house until the following morning.

The court held that an alleged marriage or divorce under native law and custom must be supported by clear evidence. There exists a standard process for the dissolution of marriage and concrete evidence that the necessary requirements were satisfied must be adduced before a court can hold that there has been a divorce and the validly contracted marriage between a couple had formally or legally come to an end. It is not enough for either party to a customary marriage to suo moto bring it to an end by merely deposing to an affidavit to that effect. Ezeaku V. Okonkwo(2012) ALL FWLR (PT. 654) 159 C.A.

The court had to determine in this case whether non-natives of Nigeria possess the capacity to contract customary law marriages. Claudis Macfoy, a foreigner who lived and worked in Lagos, purported to marry savage in accordance with Yoruba customary law. He died intestate, Susannah claimed that as his widow she was entitled to administer his property. The court held that Macfoy was not subject to customary law in Nigeria and therefore had no capacity to contract a valid customary law marriage.

In the case, Julio Fonseca, a Portuguese national, came to reside in Nigeria and purported to marry an Efik girl in accordance with Efik customary law. At the time of the marriage, he was domiciled in Portugal. He died intestate. The Efik woman claimed to be his widow and took out summons to determine whether she or the deceased's creditors should be entitled to letters of administration in respect of the deceased's estate. The court held that a European, lacked the capacity to contract a customary law marriage in Nigeria while domiciled in Portugal.

The court held that where there is a valid subsisting customary law marriage, another customary law marriage cannot be contracted. In the case, the caveatrix entered a caveat with the Registrar of marriage, Benin against the proposed marriage between her husband and another woman.

The Supreme Court was called upon to pronounce on the validity of woman to woman marriage. In the case, the land in dispute belonged to one Nwanyiakoli, who died without an issue in 1937. She was one of the wives of chief Egwu who pre-deceased her in 1935. The plaintiff who contended that the land devolved on him by customary law, claimed that because Nwanyiakoli was barren, she married one Nwanyiocha who was the plaintiff's mother for her husband as wife and under the applicable customary law, he was regarded as the son of Nwanyiakoli. The Supreme Court held that in every system of jurisprudence, one of the essential requirements for a valid marriage is that it must be a union of a man and a woman thereby creating the status of husband and wife. Indeed, the law governing any decent society should abhor and express its indignation of a "woman to woman" marriage and where there is proof that a custom permits such an association, the custom must be regarded as repugnant by virtue of the proviso 14(3) of the evidence act and ought not to be upheld by the court.

The court held in this case that the mere fact parties are living together does not amount in customary law to marriage between them.

The court held that the performance of Idana ceremony without a subsequent taking of the girl to the intended husband's house did not create a marriage by Yoruba law and custom so as to preclude the intended husband from contracting a marriage with another person under the provision of the Marriage Ordinance.

The court held that the performance of Idana ceremony without a subsequent taking of the girl to the intended husband's house did not create a marriage by Yoruba law and custom so as to preclude the intended husband from contracting a marriage with another person under the provision of the Marriage Ordinance.

The court held that under Bini customary law, separation does not constitute divorce. A customary law marriage can be only dissolved by the refund of bride price.

The court held that any order dissolving any customary law marriage without a consequential order for the refund or acceptance of the bride price or dowry is futile. Until the bride price is returned, the marriage is deemed intact even if the woman has left her matrimonial home to live with another man.

It was held by the court that under Tiv customary law, it was impossible for a woman to be married to two men concurrently.

The court held that betrothal has no legal significance or status in law, unlike marriage. It is an executory contract, and mere exchange of promise does not establish a contract. There is no binding contract of marriage, therefore, not actionable, and where there is a breach, it is unenforceable.

The court held that the consent of each party is an essential element of marriage. As soon as the parties have the capacity (age) to express their consent to the marriage, such consent is explicitly sought for and acquired prior to the marriage.

The Supreme Court held in this case that the consent of the bride to be was a condition precedent to a marriage under Benin customary law.

The Court of Appeal stated that for a marriage under native law and custom to be valid, there must be on the one side, the ceremony of giving of the bride for the marriage under the native law and custom.

In the case, the plaintiff paid various sums of money to the defendant and other members of his wife's family before the actual twenty pounds which was fixed as dowry. The court held that most of the various sums of money claimed by the plaintiff were not part of the dowry but were payments to the woman and some members of her family as presents.

A court in South Africa had to determine whether the parties had consented to being married in terms of customary law. The court held that by initiating the bride price negotiations, an integral part of a customary marriage, the parties had consented to being married in terms of customary law.

The court considering the effect of bride price stated that the payment of bride price does not create a valid customary marriage.

The court was held that the law will not vitiate a customary law marriage if the dowry exceeds the stipulated statutory limit, but, it will recommend penalty for its violation

The court, on the effect of excess payment of bride price, held that although the law renders both the payer and the payee liable for prosecution for an offence, it does not operate to nullify the marriage.

The court held in this case that the complete waiver of bride price may affect the validity of a customary law marriage.

The Supreme Court held in this case that according to Bini customary law, payment of dowry alone without cohabitation as well does not constitute a valid customary marriage.

The court held that a third party was liable under customary law to pay damages to a spouse for adultery committed with the wife. In the case, the plaintiff and wife were married under customary law. The defendant committed adultery with the wife of the defendant.

The court held that the enticement of a spouse of customary marriage by a third party confers on the other spouse a right of action for damages for the loss of the services and companionship of the enticed spouse.

In the case, the plaintiff's wife was harbored without just cause and against her husband's wish by the father, the defendant. The husband brought an action against her father before the Adeya customary court Sapele for the return of his wife. The court granted his relief which was upheld on appeal.

The court held that where there is evidence of de facto celebration of marriage either under the Marriage Act or under customary law, there is strong presumption in favor of the validity of the marriage. In the same vein, the said marriage cannot be said to have been dissolved by mere wistful thinking or assertion.

The court stated in this case that living with a man and having children for him alone does not necessarily make a woman a wife of the man under native law and custom. In the same way, a woman who is a wife of a man under native law and custom does not divorce the man merely by leaving him and staying with another man for whom she has children.

Unlike in English law, dissolution of marriage under native law and custom can be extrajudicial. No ground for divorce need be alleged or proved. It is sufficient for a husband to arrange a meeting where he duly informs his parents in law of his intention to bring the marriage to an end. It is not necessary for the husband to return the wife physically to her family nor is the return of the dowry necessary.

The court stated thus, under customary law of most communities in Nigeria, any renunciation of right to claim a refund of bride price where a customary marriage is dissolved must be formally and unequivocally be before the joint families. In that case, the marriage will be regarded as dissolved from the time of renunciation and there will be no need for the bride price to be actually refunded.

The court held in this case that it is the refund of the bride price or dowry that puts to end all incidents of customary law marriage and not an order of any court dissolving g the marriage.

The court held that the refundable bride price diminishes according to the duration of the marriage. There is little doubt that this law is very difficult to enforce in practical terms and is now largely obsolete.

The court held that a woman, the dissolution of whose marriage is in question, cannot of her own right return the bride price directly to her husband. The return of bride price is usually effected at a meeting of both families and accompanied by some ceremony.

In this case, the court held that presents, gifts or other items given to the wife and/or her parents or any money spent at the funeral or ceremony of any parent of the woman are not refundable with the bride price.

The court stated that it is sufficient for a husband to arrange a meeting where he duly informs his parent-in-law of his intentions to bring the marriage to an end.

The court held that death terminates a customary law marriage and it is mere fiction to suppose that the marriage still subsists after death. Consequently, any custom which restricts the widow from remarrying or having an affair until some fetish ceremonies was performed is repugnant to natural justice, equity and good conscience.

In this case, the question was whether a child born after the death of her father is a member of her father's family. The court held in the affirmative and also stated that after the death of the husband, the wife continued to belong to her husband's family until dowry is refunded.

The court held that a child that was born after the death of the husband was the child of the family and not the child of the biological father. In the case, a widow who continued to live in the family of her deceased husband became pregnant, but before she delivered, she left to stay with her people and got married to the applicant. The court held further that the custom was not repugnant to natural justice and equity.

The court held in this case that the marriage was void because both parties were related by blood.

In the case, the marriage of the plaintiff with his half-sister was declared void. Any marriage between descendants or ascendants, no matter the relationship is forbidden between male and female Muslims.

The court held that the state laws that prohibited same sex marriage were invalid to the extent they excluded same sex couples from marriage on the same terms as opposite sex couples and that there was no lawful basis for a state to refuse to recognize a lawful same sex recognize a lawful same sex marriage celebrated in another state only on the ground of it being same sex.

The court held that though trans-genders might have acquired the external genitalia of the acquired sex, they were still biologically their birth gender since they could not worry fully function in the acquired gender.

The court held that consenting adults have the right to engage in private sexual conduct in the privacy of their home without being subjected to imprisonment.

RE-LADRACH 32 OHIO MISC. 2D 6

Trans genders as still being their birth gender.

The court held that though trans-genders might have acquired the external genitalia of the acquired sex, they were still biologically their birth gender since they could not worry fully function in the acquired gender.

The court held that adultery is the voluntary sexual intercourse between two persons of the opposite sex, of whom one or both are married but not married to each other.

Adultery is consensual sexual intercourse between two persons of opposite sexes, at least one of whom is married to a person other than the one with whom the intercourse is had, and since the celebration of the marriage and to establish adultery, there must be:

a. Sexual intercourse;

b. The sexual intercourse must be voluntary;

c. At least one of the parties must be married. See also Alabi V. Alabi (2008) All FWLR (Pt. 418) 245 C.A

The court considered the proof of adultery in this case. The court held that adultery is a very private act done by two consenting adults. Thus, it is almost impossible to have direct proof of adultery. The court have to rely on direct or circumstantial evidence which includes:

a. Evidence of disposition and opportunity;

b. General cohabitation;

c. Confession and admission of adultery;

d. Entry in a register of birth;

e. Blood test;

f. Birth of child after the gestation period;

g. Frequent visits to brothels;

h. Infection by venereal diseases; and,

i. Conviction for rape.

The court held that in order to attain the standard of proof where adultery is alleged, the evidence must be such as satisfies the court as to the truth of the alleged adultery.

The court held that once a spouse can establish an act of intercourse between the other spouse and a third party, the burden of proof shifts to the respondent to show that the sexual intercourse lacked his or her real consent

The court held that adultery as a matrimonial wrong must be specifically pleaded and clearly proved and a charge of venereal disease must be specifically pleaded and the normal method of proof of such allegation is by medical record. See also Ikpi V. Ikpi (1957) WRNLR 59.

The court held that it is immaterial that a marriage has not been consummated in instances involving adultery.

The court held in this case that in order to establish adultery, the intercourse need not be complete as would constitute consummation of marriage but there must be some penetration of the female organ by the male.

The court held that the onus is on the party who alleged the commission of adultery against other parties in a matrimonial case to prove to the reasonable satisfaction of the court that the alleged persons actually committed adultery. In doing so, the standard of proof is no longer as was approximated to that required in criminal cases, rather the standard of proof is no more than as required in civil cases. See also Sowande V. Sowande (1960) LLR 58; Oloko V. Oloko (1961) LLR 100.

The Canadian court considered whether artificial insemination constitutes adultery. The court held that the artificial insemination of the wife of the sperm of the co-respondent amounted to adultery.

The court held in this case that where reliance is placed on circumstantial evidence in proof of adultery, then, it must be so cogent and compelling, as to satisfy the court that the facts cannot be accounted for on any other rational basis than adultery.

The court held that the law has set down certain conditions from which adultery can be inferred and they are;

a. Evidence of disposition and opportunity for sexual intercourse with a person other than a spouse.

b. General cohabitation.

c. Confession and admission of adultery.

d. Entry in the register of birth.

e. Frequent visits to hotels.

The court held in this case that once there is evidence of undue familiarity, suspicious circumstances, and improper behavior, the court is entitled, upon a consideration of each particular case, to find as a fair inference that such behavior leads as a necessary conclusion to adultery. There is indeed a strong prima facie evidence of adultery if there is clear evidence of familiarity coupled with evidence of opportunity. See also Anoka V. Anoka (1973) ECSLR VOL. 3 (PT. 1) 51

The court held in this case that where adultery is alleged to have been committed with the same person as in an ante-nuptial incontinence, evidence of illicit intercourse or familiarity prior to the marriage may be admissible.

The court held that evidence of adultery may be adduced from the period of gestation. The child in this case who was born 174 days after the earliest date on which intercourse could have taken place was held legitimate by the court.

In this case, the court held the birth of a child 360 days after intercourse between the parties as the evidence of the wife's adultery.

The court held that the confession or admission of a spouse to have committed adultery is evidence against that party alone.

The court held that the confession of a respondent that he committed adultery with the co-respondent is no evidence against the latter.

The court held that the neglect of a wife and preference for company of other women may well contribute to the wife's adultery.

In the case, the respondent and co-respondent, who are fond of each other, were seen kissing each other, embracing themselves, and spent over five hours together with each other for which o proper account was given. The Supreme Court held that this was a proper case of adultery, based on inferred acts of the matter.3

In this case, a husband visited his wife who was living apart from him at night. He noticed that the wife's bedroom was in darkness and as a result of banging the wife's door, it opened and he found the respondent and co-respondent together. The wife was sitting on a bed with only wrapper thrown carelessly around her body and the co-respondent's shirt was not properly tucked into his trousers. The court held that the circumstances in which the parties were found pointed conclusively to the commission of adultery.

The court held that cohabitation is satisfactory proof of the commission of adultery where the respondent and co-respondent are living together.

The court stated in this case that apart from direct evidence which is rare, adultery is usually proved by circumstantial evidence which could take various forms. The court held that the commission of adultery can be established by the confession or admission of the party alleged to have committed adultery.

The court held that an admission by a wife that her husband does not have paternal rights over her child, while she named another man as the father in a court document constitutes an admission of adultery.

The court held that the entry of birth in a birth register by a wife which omits the name of the child's father or gives a name other that of the husband amounts to admission of adultery.

The court held that the presumption that a spouse suffers from a venereal disease which was not contacted from the other spouse may be rebutted by proving that the disease was contracted otherwise than by adultery.

In the case, the court held that frequent visits to a hotel or night club by a spouse with strangers' raises a presumption of adultery. In this case, part of the evidence adduced was that there was proof of the respondent's adultery in that she frequently visited a hotel with strange men.

The court held in this case that the husband had established that the marriage had broken down irretrievably, even though he found life with the wife intolerable, not on account of her adultery, but because of her subsequent conduct. In the case, the husband took back the wife after she committed adultery, but she continued to correspond with the man in question, went out at night and finally left the husband to live with her mother.

In this case, the court stated that the correct legal position is that the adultery having been proved, other facts which make it intolerable for the petitioner to live with the respondent mu

It was held in this case that the court has to consider the petitioner's feelings and once it is found that the petitioner is sincere about his or hers feelings, it is sufficient regardless of whether a reasonable person would find it intolerable to live with the respondent.

The court held that in divorce proceedings, the joinder of the co-respondent is mandatory and failure to so could amount to a fundamental defect that could defeat the claim based on adultery. See section 32 (1), Matrimonial Causes Act.

The court held that a party claiming damages must prove that he or she suffered some loss as a result of the adultery. A mere allegation that the marriage has broken down on the basis of adultery will not suffice.

The court held that a claim for damages on the basis of an allegation of adultery cannot be sustained in a petition for the decree of judicial separation and not divorce.

The court held that where a marriage has broken down before the adulterous association with the co-respondent began, adultery will not be held to occasion any loss of consortium to the petitioner. The court further held that as a result of the breakdown of the marriage, a petitioner relinquishes the right to the consortium of the other spouse.

The court held that damages on the grounds of adultery are not compensatory for the loss which the petitioner has suffered, and the consideration may be given to such matters as damage done to the husband by the blow to his honour, the hurt to his family life and injury to his feelings.

The court held in this case that in awarding damages in respect of adultery committed within three years, it is immaterial, if such adultery forms part of a continuing adulterous relationship which commenced prior to such period.

In this the principle of constructive knowledge on the part of the adulterer was brought to light. The court held that it must be proved that the co-respondent /adulterer had knowledge of the form of marriage, which the respondent ad celebrated as at the time of adultery.

In the case, the party cited for adultery with the wife petitioner, argued that he was not liable for damages because the marriage had broken down and the parties had separated before he started associating with the wife. The court held that this could only mitigate the damages, since any man whose wife is seduced has been subjected to an intolerable insult and wrong and the fact that he was separated from the wife does not render the blow to his honour any less cue.

The court held that a husband is not justified in leaving his wife simply because he has been told by his mother that his wife has committed adultery.

The court held that by the provisions of Section 31 of Matrimonial Causes Act, power is given to a trial court to award damages against a third party, where a party to a marriage institutes a

The court held that adultery had been committed and made an order dissolving the marriage where it was established that the respondent committed adultery with the three women named in the cross-petition and that he was the father of the four children mentioned therein.

The court held that in determining whether or not the petitioner finds it intolerable to live with the respondent is deemed a question of fact, and the test is subjective rather than objective.

The court defined desertion to be the separation of one spouse from the other with an intention on the part of the deserting spouse of bringing co-habitation permanently to an end without reasonable cause and without the consent of the other spouse.

Desertion is the withdrawal of support and cessation from cohabitation without consent of the other spouse and with the avowed intention of abandoning allegiance, fidelity or responsibility and remaining separated in perpetuity. Put differently, desertion means abandonment or voluntary withdrawal from all marital obligations by a married person, without any just cause.

The court held in this case that there are two types of desertion recognized namely: simple desertion and constructive desertion. In the former, it is the absentee spouse who has abandoned the matrimonial ship and abdicated responsibility for requisite duties, while in the latter, it is the spouse who remains aboard the matrimonial ship who is in desertion, in that the said spouse has by his or her conduct expelled the other.

The court held in this case that de facto separation implies the coming to an end of cohabitation by severing all marital obligations.

The court stated in this case that the general principle is that any conduct which makes the continuance of matrimonial cohabitation virtually impossible will provide a good excuse for a spouse to desert.

The court held that a spouse may withdraw from cohabitation on account of ill health or imprisonment.

The court held that a party who consents to separation, cannot be heard to complain of it but the consent must be genuine and not obtained by duress, fraud or misrepresentation.

In this case, the wife told her husband to go to his mistress, but made him promise to return to her when he was fed up with the mistress. The court held that there was no real consent.

The court held that consent to separation may take the form of a separation agreement. Such agreement need not be in writing or embodied in a deed, but it must provide for the spouses living apart.

The court held that consent to separation may take the form of a separation agreement. Such agreement need not be in writing or embodied in a deed, but it must provide for the spouses living apart.

The court held that it is necessary to consider the whole conduct of both spouses objectively before determining whether a cause of just cause or excuse for desertion has been made out. First, it has to be determined by the court whether the conduct of the respondent falls within the description of affording just cause, or excuse for the petitioner to live separately or apart. Secondly, taking into consideration evidence of the circumstances leading up to the initial separation and subsequent conduct of the parties whether it can be said that the respondent's conduct caused the petitioner to live apart during the statutory period of one year.

The court held that refusal of the petitioner accommodation in the matrimonial home on her return from England was tantamount to constructive desertion.

In the case, the parties were married in 1908. The husband respondent deserted his wife on March, 1952 and declared that he did not intend to return to his matrimonial home. He never supported his family financially. Eight months later, the wife informed an adulterous association with her employer. The court held that the continued desertion was not occasioned or conduced to by the petitioner's conduct.

In the case, the wife petitioned for the dissolution of the marriage with the allegation of one-year desertion by the husband. The husband cross-petitioned on the allegation of the petitioner's adultery. The court found that the respondent had left the matrimonial home for further studies, in spite of the objections of the petitioner, without arrangements whatsoever for the petitioner and the children of the marriage. The wife's adultery resulted in the birth of a child which occurred few years later. The court dismissed the husband's cross-petition on the ground that his conduct had conduced the wife's adultery.

The court held that living apart involves physical separation accompanied by the termination of consortium. Mere physical separation of parties to a marriage does not by itself constitute living apart. For living apart to arise, there must be in addition to physical intention or mental element expressed by one or both parties to terminate and bring the marriage to an end. Hence, so long as both the husband and wife do not regard the marriage as having been torpedoed, then it cannot be said that marriage has broken down irretrievably, even though the parties were physically separated. in this connection, the mere compliance with an order of transfer or movement by a worker from the location of his matrimonial home to another location without his wife accompanying him for one reason or the other, does not render the worker liable to be classified or described either as a deserted or as living apart.

The court held in this case that there must be clear intention on the part of one or both spouses not to return to the other and the treatment of the marriage as having come to an end to constitute living apart under Section 15(2)(e)of the Matrimonial Causes Act, 1970.

The court held that where parties are compelled by the exigencies of external circumstances, such as absence on professional or business pursuits, ill-health, confinement in jail or outbreak of war, to live apart, it does not amount to living apart under the Act.

The court held in this case that mere physical separation of the parties to a marriage does not by itself constitute living apart. For living apart to arise, there must be in addition to physical separation, the intention or mental element expressed by one or both parties to terminate and bring the marriage to an abrupt end.

The court also held that desertion occurred where at the time of the refusal, the respondent living with a co-respondent in the matrimonial home.

The court held in this case that in the resumption of cohabitation, the physical cohabitation must be accompanied by the mutual intention to set up a home.

The court held desertion to continue where the wife in desertion returned to her husband because she had nowhere else to go, but refused to perform any marital duties.

The court held that cohabitation may be resumed even though the parties have no house to go to, if there is the necessary intention.

The court held in this case that sexual intercourse without the intention to resume cohabitation will not displace desertion.

The court held that to terminate desertion, the offer to return must be reasonable and genuine. The reasonableness of an offer is a matter of fact.

In this case, it was held that the offer to terminate desertion was unreasonable. The husband, who was in desertion, expressed his willingness at a reconciliation meeting to have his wife back, if she accepted a code of conduct. The code of conduct which required her to be prepared to take orders from her husband, agree to do any farm work, however menial, and to swear any form of oath the husband might deem fit.

The court stated in this case that for an offer to terminate desertion to be genuine, the party making it must have both the intention of resuming cohabitation and the means of implementing it if it is accepted.

The Supreme Court held in this case that the wife's conditions on the acceptance of an off to terminate desertion was reasonable and that by refusing to accept the conditions, the husband continued his desertion.

The parties were married in 1944 and went to London in 1950. In February 1951, the husband deserted the wife and went on to live with a Miss Cameron. An order for maintenance was made against the husband wherein he failed to comply. In 1954, his solicitors wrote to the wife inviting her to return to the matrimonial home. The wife accepted the offer on the condition that Miss Cameron left the husband, that payment of the debt incurred by the husband as a result of his failure to pay the maintenance ordered was made, and that her freedom of worship would not be disturbed.

Adultery provides a good cause for living apart. Where the petitioner commits adultery and it is known to the respondent, this will terminates the latter's desertion. The exception to this rule is where it can be shown that the respondent was not influenced by the misconduct in deciding to continue the desertion.

In the case, the husband with the mutual consent of his wife went to Britain to study. The wife visited him there to spend her leave with him. The court held in this case that there was no living apart of the spouses.

The parties were married in 1966. The parties occupied separate bedrooms between 1969 and 1970. There was no sexual intercourse but they both used the other rooms of the house and the meal cooked by the wife was taken together. The husband thereafter left the matrimonial home and in 1971 presented a petition for divorce on the fact that the parties had lived apart for two years preceding the petition. The court held that it cannot be proved that the spouses were living apart between 1969 and 1971 and the petition was dismissed.

The court held that the respondent who left the matrimonial home, the wife believing that he was going abroad on holidays, but went to Malaysia to practice his profession and had two children thee, had the intention to live apart from his wife and make a new life for himself in Malaysia. The court stated that the animus of living apart existed and that the other spouse need not be aware of the intention or that this element be communicated.

The court emphasized that the element that is required in addition to physical separation is one which is capable of being brought into existence unilaterally, in that it depends on the attitude of mind of one of the parties to the marriage, and must at least involve a recognition that the marriage in truth is at an end. It is not, however necessary that the existence of that additional element should be communicated to the other party before it becomes operative in law.

The court held that where a petitioner establishes a ground for the dissolution of marriage but discloses his own misconduct, which constitutes a discretionary bar, the court may refuse to grant a decree for divorce.

The court held in this case that the object of Section 15(2) (e) of the Marriage Act, is to put an end to a state of affairs where a marriage has been deprived of all of its substance, leavin

The court held that the most obvious case of desertion occurs when one spouse physically departs from the matrimonial home.

The court pointed out in this case that desertion is not the withdrawal from a place, but from a state of things.

The court held that there may be de facto separation but not desertion where the parties are living apart against their will, for instance, by imprisonment and incarceration.

The court stated in this case that there is no desertion if as a result of a spouse's employment he or she is transferred to another station from where the matrimonial home was located.

The court stated that temporary separation for example on holidays, for reasons of business or health, or involuntary absence, service in the armed forces, or imprisonment cannot constitute desertion.

The court stated that where a spouse abandons the matrimonial home, there is a presumption that he intended to desert, animus deserendi. The desertion, starts at the moment of his departure.

The court held that if separation is involuntary, for example owing to imprisonment, it may be turned into desertion by the subsequent animus deserendi of a spouse.

The court held in this case that it has to be proved in each case that the necessary animus exists, so as to make the insane party guilty of desertion.

In this case, the court was of the view that mere allegation by the respondent of the breakdown of the marriage and cross-praying for divorce cannot be regarded as the respondent not objecting to a decree dissolving the marriage being granted. Such inference can be made where the respondent is not contesting the petition and it is therefore undefended. Where the respondent is contesting the petition and asking that it be dismissed, the fact that he cross-petitioned for divorce cannot be regarded as evidence of non-objection.

In this case, the petitioner sought the dissolution of the marriage, inter alia on the fact of two years separation. The respondent neither filed an answer nor appeared in court. The court refused to regard the failure to contest the petition as evidence of non- objection.

The court in this case inferred from a letter written by the respondent informing the petitioner that the marriage between them had broken down and that he would like to file a petition for divorce, evidence that the respondent does not object to a decree of dissolution being granted.

It was held in this case that the respondent's cross petition for divorce was an unequivocal evidence of his desire to bring the marriage to an end.

It was decided in this case that non-participation in the proceedings by the respondent after service of court processes may be regarded as evidence of non-objection.

The court held that where a respondent is of unsound mind in a petition for a decree to dissolve a marriage, if evidence points to outright consent or non-objection, the test would be whether the respondent has the capacity to understand the nature of the consent and appreciate the effect of giving it.

The court held that under Section 15(2) (e) of the Marriage Act, it is necessary for the court to consider or pass judgment on the respondent's motive for not objecting to a decree. The court held that it is irrelevant whether it arises from spite, revenge or religious conviction.

In this case, the court held that the petitioner does not have to establish by evidence the respondent's non-objection to a divorce decree. Rather, it is for the respondent to make his or her objection or non-objection known to the court by any possible means.

The question of what point of time in a divorce proceedings the respondent may exercise the right under Section 15(2) (e) of the Matrimonial Causes Act. In this case, the respondent in his answer indicated that he did not object to the decree being granted. He later changed his mind and objected to the decree in his evidence in court. The court held that the right to object was properly exercised as the respondent was the best judge as to when to exercise the right.

Section 15(2) (e) of the Matrimonial Causes Act provides that the court hearing a petition for a decree of dissolution of a marriage shall hold the marriage to have broken down irretrievably if, but only if, the petitioner satisfies the court that the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition and the respondent does not object to a decree being granted.

Where a respondent has been absent from the petitioner for such a time and in such circumstances as to presume that the respondent s dead, a marriage may be dissolved. This fact may be established by proof of the respondent's absence for seven years immediately preceding the petition. The petitioner has the burden to satisfy the court that nothing has happened within the seven years as to give him or her cause to believe, as a reasonable person, that the respondent is alive if the respondent has been absent from the petitioner for such a time and in such circumstances as to presume that the respondent is dead. If the respondent is found to be alive before the decree nisi is made absolute, the court will rescind the decree. The court held in this case that the position will be different where the decree has become absolute as that effectively dissolves the marriage. See also Section 16 (2) (a) of the Matrimonial Causes Act.

The court held in this case that the wife-respondent could not show that she found it intolerable to live with the petitioner because she acquiesced to the commission of adultery and hence, was not entitled to a decree of divorce.

In this case, the court dismissed the cross-petition of the wife-respondent on the fact that the wife condoned the petitioner's adultery.

The court held that the spouse who condones a marital misconduct by the other spouse should be substantially aware of the matrimonial misconduct committed. There cannot, be condonation without knowledge.

The court held in this case that the two main constitutive elements of condonation are forgiveness and reinstatement.

The court held in this case that willingness to forgive does not constitute condonation. Reconciliation is not a unilateral act and for it to take place, both husband and wife must intend to be reconciled. (1963) 3 FLR 56

Willingness to forgive does not constitute condonation of matrimonial misconduct.

The court held in this case that willingness to forgive does not constitute condonation. Reconciliation is not a unilateral act and for it to take place, both husband and wife must intend to be reconciled.

The court held that whether a spouse who, after being aware of the matrimonial misconduct of the other party, continues marital cohabitation can be said to have reinstate the other is a question of fact.

In the case, the court held that the continuance of marital relations did not amount to condonation on the part of the wife petitioner.

In the case, the parties were married under the Marriage Act. The petitioner was unable to bear children. He thereafter brought another woman into the matrimonial home and cohabited with her. Two children were born to the respondent husband by the woman as a result of the cohabitation. Inspite of the cohabitation with the other woman, marital relations continued to exist between the petitioner and the respondent up to the birth of the second child of the irregular union.

The court held that the deserted spouse is obliged to receive back the other spouse if the latter makes a genuine offer to return. Condonation may however apply to a completed period of desertion.

The court held that where an expulsive conduct, constructive desertion constitutes a matrimonial offence, it may be condoned and thereafter cannot be set up as a reasonable excuse for separation. See also Section 18 of the Matrimonial Causes Act.

The court held that if a wife guilty of adultery which the husband has subsequently condoned subsequently commits adultery, the husband may petition for divorce on either act of adultery.

In the case, the husband committed adultery which resulted in the bearing of a child by the co-respondent in May, 1953. The spouses continued to live together as husband and wife until June, 1953 when the husband left the matrimonial home. He thereafter presented a petition for divorce in 1964. The wife cross-petitioned for divorce. The court held that the husband's desertion which had not lasted for the statutory period revived the condoned adultery.

The court held that living together in the same house and under circumstances from which reinstatement could otherwise be inferred does not constitute condonation where it is clear that reconciliation has not taken place nor has mutual trust and confidence between the parties been restored. It is only through the force of circumstances that they live under the same roof, as there may be reinstatement without sexual intercourse.

Connivance operates on the legal maim of violenti non fit injuria. A spouse will not obtain relief for misconduct in which he acquiesced or encouraged. The court held that in such a case, it must be shown that it was an intentional act of which the spouse acted in such a manner that the misconduct might result, and that he intended that it should so result. See Section 26, Matrimonial Causes Act.

The court held that a husband may be guilty of connivance when he encourages his wife to drink, takes her to places where she gets drunk and may be an accessory to her habitual drunkenness.

In the case, the parties were married in 1942. From 1944, the relationship between the parties started to grow old because of the inability of the petitioner to bear children for the respondent. In 1954, the wife petitioner consented to the respondent cohabiting with Patricia in their matrimonial home, for the purpose of the said Patricia bearing children for the respondent. As a result of the respondent's adultery with Patricia, four children were born to the respondent. The wife petitioned for divorce on the ground her husband's adultery with Patricia. The learned judge refused to grant a decree of divorce on the ground that the petitioner connived at the respondent's adultery.

The court held that connivance may also be passive acquiescence, which is, standing by and permitting the act to take place, if it is shown to have been done with the intention that the misconduct will be committed.

The court held that connivance precedes and accompanies the commission of misconduct but where the misconduct stretches over a period, a spouse may connive at its continuance after he has discovered knowledge of its existence.

The court held that connivance by a petitioner's agent may be as effective as the petitioner's connivance.

The court held that agreement between the parties to a divorce suit is treated ass suspicious because it often deprives the court of the freedom of eliciting the whole truth.

Where a party by agreement commits or appears to commit a matrimonial offence, it will be deemed collusion.

It was stated by the court in this case that collusive bargain is one with a corrupt intention and has the following features:

It is an agreement under which a party to the suit for valuable consideration has agreed either to institute it or to conduct it in a certain way, for example, the reluctant petitioner induced by the offer of some benefit to take proceedings against an eager respondent;

A co-respondent induced by a promise of some benefit not to defend a charge of adultery, or

To provide evidence or bear witness at the trial against the respondent, or

The parties intend by their agreement to match institution of suit or any aspect of its conduct with the provisions of some benefit to the party instituting or in that aspect conducting the suit.

The court held that there cannot be collusion without agreement. Collusion will arise if the agreement is between the parties' agents just as it would if they acted personally.

The court held that by the provisions of Section 15(2) of the Matrimonial Causes Act, the sets of circumstances, any of which must be established by a petitioner before the court will hold that the marriage has broken down irretrievably are:

a. That the respondent has willfully and persistently refused to consummate the marriage;

b. That since the marriage, the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;

c. That since the marriage, the respondent has behaved in such a way that the petitioner cannot be reasonably expected to live with the respondent;

d. That the respondent has deserted the petitioner for a continuous period of at least one year immediately preceding the presentation of the petition;

e. That the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition and the respondent does not object to a decree being granted;

f. That the parties to the marriage have lived apart for a continuous period of at least three years immediately preceding the presentation of the petition;

g. That the other party to the marriage has for a period of not less than one year failed to comply with a decree of restitution of conjugal rights made under the Act;

h. That the other party to the marriage has been absent from the petitioner for such time and in such circumstances as to provide reasonable grounds for presuming that he or she is dead.

The court dismissed the petition of a husband whose sole charge against the wife was that she was unable to give the husband, demonstrative affection for which he craved whereas, as the judge found, she had given him all the necessary and needed affection and nothing in her behavior could be regarded as a breach of any of the obligations of a marriage.

In this case, the court considered on whom the onus of proof lies in a petition for dissolution of marriage, what must be established to discharge it, the standard of proof and what constitutes reasonable satisfaction. the court held that by the provisions of Section 15(1) (2) of the Matrimonial Causes Act, in divorce proceedings, the onus of proof lies on the petitioner, success or otherwise of the petition depends largely on how diligently and adequately the burden is discharged failure to discharge the burden of proof entails a dismissal of the petition, more so, where one of the parties opposes the dissolution of the marriage. A petitioner in a matrimonial proceeding must satisfy the court of the facts relied upon or alleged.

Put differently, the matter of fact as alleged is sufficiently proved once the court is reasonably satisfied of the existence of the ground, fact or matter as alleged.

The court held in this case that a cross-petition is an independent action such a counter-claim and that each party is entitled to adduce evidence in support of his case as pleaded and the trial court, at liberty in evaluating the evidence so adduced, to come to a proper conclusion as to which case is preferred or proved, either the petitioner or cross-petitioner.

The court held that failure to file a discretionary statement does not necessarily prevent a court from exercising its discretion to dissolve a marriage.

In the case, the evidence showed that when the wife-petitioner first had knowledge of her husband's adultery with his ex-wife, she confronted him. Although the husband-respondent informed her that she should leave if she did not accept it, she continued to live with him in their matrimonial home. She later discovered his second adulterous act with another woman. The wife moved out of the house and committed adultery. She petitioned for divorce on the fact of her husband's adultery and her intolerability of it. The husband cross-petitioned on the adultery of the petitioner and his in tolerability of it. The court allowed both the petition and cross- petition to succeed, and the decree of divorce was granted.

The court held that it is not the entire conduct of the petitioner that may condone or contribute to the ground for divorce but it must involve some element of misconduct such as desertion or adultery. The court further stated that there must be some form of wrongful act or omission that supports the demand for divorce.

The court held that the exercise of the court's discretion to grant a decree dissolving a marriage cannot arise when a petitioner has failed to establish, in the first place, a matrimonial offence by the respondent.

It was held in this case that the exercise of the court's discretion falls in three categories. The first consists of factors relating to the interests of persons directly or indirectly affected by the suit such as, whether there is a reasonable prospect of reconciliation between the spouses if the marriage is not dissolved; the position and interests of any children of the marriage; the interest of the party with whom the petitioner has been guilty of adultery, with special regard to their re-marriage; the interest of the petitioner, and in particular the point that the petitioner should be able to remarry and live respectably; and the interest of any children born of the adulterous association.

The court held that a dissolution effected accordingly with the law of a foreign country will be recognized in Nigeria if its validity would have been recognized under the law of the foreign country in which, both parties were domiciled in the case of dissolution or one party was domiciled in relation to annulment. The court went further to state that a foreign decree of divorce will be recognized if there is real and substantial connection between the spouse obtaining the decree and the country in which it was obtained. See Section 82, Matrimonial Causes Act.

In this case, the court of appeal held that English courts and equally Nigerian courts should recognize a jurisdiction which they themselves claim.

A petition was made by the husband based on the fact of the wife's drinking habit, the court refused to make a decree dissolving the marriage where evidence showed that that the husband by his drinking habit contributed to the wife's conduct.

The court considered what custody of children connotes in matrimonial causes. The court stated in this case that custody of a child connotes not only the control of the child, but carries with it the concomitant implication of the preservation and adequate care of the child's personality, physically, mentally and morally. In other words, this responsibility includes his or her needs in terms of food, shelter, clothing and the like.

The Supreme Court held that whilst it recognizes the superior rights of the father, this right will not be enforced where it will be detrimental to the welfare of the children.

The Court of Appeal held in this case that the welfare of the children of the marriage, with regards to their peace of mind, happiness, education and co-existence is of paramount importance in permitting custody. See Section 71(1), Matrimonial Causes Act.

The court held that the welfare of a child is not the material provisions in the house-good clothes, food, air-conditioners, television, all gadgets normally associated with middle class, it is more of the happiness of the child and his psychological development. While it is good for a child to be brought up by the complimentary care of the two parties living together. It is psychologically detrimental to his welfare and ultimate happiness and psychological development if the maternal care id denied him.

The court defined interests of the children to include their welfare, education, security and overall wellbeing and development.(2012) 3 NWLR 478

What interests of children is.

The court defined interests of the children to include their welfare, education, security and overall wellbeing and development.

The court stated in this case that the custody of children is an ongoing exercise akin to recurrent decimal. It is a day to day or revolving affair. Whenever any of the spouses discovers conditions have changed or altered for the worst in respect of the interest, benefit and welfare of the children or child in the custody of another person or spouse, he or she can apply to the court to review the custody order. The court upon hearing the parties would reach a decision in the best interest of the child or children as the case may be. See also Ayegba V. Ayegba (1979) 3 LRN 3.

The court emphasized the factors which are considered in the grant of custody. The held those factors to be; the respective means of the parties; their stations in life and their life styles; and the conduct of the parties.

The court held that a parent cannot recover custody of a child from the other parent by a writ of habeas corpus. The basis of this rule is that as each parent has a right to the custody of the child, it cannot be said that the possession of the child by either parent is unlawful.

In the case, the parties who were not married to each other were the parents of a male infant. The applicant sought by a writ of habeas corpus directed to the respondent to obtain custody of the child. The court found for the applicant on the basis that there was no form of marriage between the parties.

In this case, the parties were married under customary law. There was a child of the marriage. The appellant sought by writ of habeas corpus directed against the respondent to claim the custody of the child. The court held that the High Court had no jurisdiction to entertain the application.

The court emphasized the interest of the well-being of the children and the need to receive paramount consideration as principal in a case for custody of children.

The court laid down relevant criteria that must be considered in the determination of the welfare of children in matrimonial causes. The court held that certain relevant criteria must be considered in the determination of the welfare of the child in the case where the marriage has broken down irretrievably. They include:

a. The degree of familiarity of the child with each of the parents.

b. The amount of affection by the child for each of the parents and vice versa.

c. The respective incomes of the parties.

d. Education of the child.

e. The fact that either of the parties now lives with a third party a either man or woman; and

f. The fact that in the case of children of tender age, custody will normally be awarded to the mother unless other considerations make it undesirable.

The court in this case laid down the principles which guide the award of custody. The court stated thus:

a. Where in any proceedings before any court, the custody or upbringing of a minor is in question, the court in deciding the question shall regard the welfare of the minor as the first and paramount consideration and shall not take into consideration whether from any point of view the claim of the father in respect of the custody is superior to that of the claim of the mother.

b. In relation to the custody or upbringing of a minor, a mother shall have the same rights and authority as the law allows to a father, the rights and authority of both father and mother shall be equal and exercisable by either with the other.

c. There is no rule which states that the mother has a paramount claim as against other relations especially where the father is alive and supports the application of those relations.

d. The first and paramount consideration is the welfare of the child but it is not the sole consideration as the conduct of the parties will be taken into account.

e. The adultery of a party is not necessarily reason for depriving that party of custody unless the circumstances of the adultery make it desirable.

f. All the circumstances must be considered.

g. When there is more than one child of the family, the court takes into consideration brotherhood and sisterhood.

h. There is settled rule that a child of tender years should remain in the custody of the mother. The care and supervision that a mother who is not out at work can give to little children is an important factor.

i. In custody cases, though the child is given the paramount consideration, it is not to punish a spouse for misconduct.

j. The wishes of an unimpeachable parent stands first.

In this case, the court refused to grant custody of a child of the marriage to a mother who had not seen the child physically for almost six years other than through photographs.

The court in this case refused to grant custody to a mother who had once tried to kill the child.

The court in this case refused custody and access to the mother of a child. The court held that it was not in the best interest of the child to have access to his mother in his formative years when he could be easily influenced.

The Supreme Court held in this case that the commission of adultery by a spouse does not necessarily deprive that party of custody unless circumstances of the adultery make it desirable. An adulterous mother may still be a good mother in taking care of the child as the welfare in such circumstances remains the major consideration.

The courts have made it clear that the sex of the child is a matter which is taken into consideration in the award of custody. In the case, the court awarded custody of the female child of the marriage to the wife adding that a girl has the right to develop her personality under the mother.

The court held to wit, that in coming to a decision as to what is in the best interest of the children, judges as members of the society and men of the world will have to take cognizance of what the trend is in society in which they live. The Matrimonial Causes Act is a Nigerian legislation; it is not foreign law neither is it law for the elite. The law must therefore be construes bearing in mind the prevailing situation in the society.

The court in this case awarded custody to the husband where the husband and wife applied separately for the custody of their two sons aged nine and ten who had been living with their mother. The court awarded custody to the husband on the basis that as males, their rightful place was in their father's house and that it was immaterial how long they stayed away from it as they would one day long for it. The court also stated that in granting custody, the courts must not ignore the trend in the society in which they live. The trend in the society being that a Nigerian male is part and parcel of his father's family and that the eldest male child occupies a very important position in his father's family.

The court in this case stated that the financial position of the parties is considered, other things being equal, the fact that one spouse is in a much better financial position to bring up the child may be decisive and the party who is in a better position to offer the child good accommodation may be preferred.

The court in this case refused to grant custody to a mother who had no home of her own or private means to bring up the child because it was not in the best interest of the child to do so.

The court held that where one parent was anxious for care and control of the child, and the other, proposed care and control to some third party; then in principle, care and control should be given to the former. The reasons being that it is of great importance that a child should have the opportunity of winning the affection of his parent.

The court held that the fact that the mother of a child is not Nigerian does not justify the award of custody to a father who the court found unfit.

The court held that by the provision of section 71(3) of the Matrimonial Causes Act, a court can grant custody of a child to even a person who is not a party to the marriage because the interest of the child is the paramount concern of the court in a dispute over custody of a child.

The court held that in determining whether to modify an order of custody of a child or not, the main consideration is whether modification of the order is in the interest of the child. This is because the interest of the child comes first in issue of custody. See also Odusote V. Odusote (2012) 3 NWLR (PT. 1288) 478.

The court held that in the absence of any specific order that a child must be in the physical custody of the mother in whose favor the court ordered custody, the child if kept, as in this case, by the mother in the physical custody of the mother's parents is constructively in the custody of the mother. Such a situation does not amount to custody by proxy and violation of the order of the court.

The court held that orders of maintenance and custody of children are interlocutory orders in matrimonial proceedings for the purpose of an appeal. This is because though such orders appear final, they are subject to subsequent revision, suspension, or modification by the court which pronounced them.

The court held that whenever any of the spouses discovers conditions have changed or altered for the worse in respect of the interest, benefit and welfare of the children or child in the custody of another person or spouse, he or she can apply to the court to review the custody.

The court granted an interim order in this case for the three children to remain with their grandmother pending the determination of the petition.

the court as wide discretionary powers, and is empowered to grant custody of a child to a third party either permanently or as an interim measure, if it considers same to be in the best interest of the child. See Section 71(3), Matrimonial Causes Act.

The Court of Appeal held that a decree nisi cannot become absolute where there are children of the marriage under the age of sixteen, until the court declares itself satisfied that proper arrangements have been made for their welfare.

In the case, an Australian court took the position that the restriction in a provision similar to Section 70(4) of the Matrimonial Causes Act applies only to children who had attained the age of twenty-one at the date the order of maintenance was made.

Section 70(4) of the Matrimonial Causes Act provides that the power of the court to make and order with respect to the maintenance of children of the marriage shall not be exercised for the benefit of a child who has attained the age of twenty-one years unless the court is of the opinion that there are special circumstances that justify the making of such an order for the benefit of the child.

The court considered Section 70(4) of the matrimonial causes act in this case. the court stated that by virtue of Section 70(4) of the Matrimonial Causes Act, the power of the court to make an order on the maintenance of the child or children of the marriage shall not be exercised for the benefit of a child who has attained the age of twenty one years (21) years unless the court is of the opinion that there are special circumstances justifying the making of the order in that direction.

The court held that under Islamic law, custody of the child, whether male or female, is generally granted to a mother unless there is a compelling reason not to do so. Even where the mother for one reason or the other cannot cater for her child, custody is given to her relation not the relation of the father.

The court held that the money lent to a wife who is living apart from her husband is not regarded as "necessary" and cannot, therefore, be recovered from the husband.

The court held that if a wife commits adultery, her agency of necessity is terminated, because a husband is not obliged by the law to maintain an adulterous wife.

The court held that where a wife is guilty of desertion, her agency of necessity is terminated.

The court held that if the husband fails to perform faithfully his contractual obligations, the wife will be free to pledge his husband's credit. However, where the husband performs faithfully his contractual obligations, the wife cannot pledge his credit.

The Court of Appeal held that the order for settlement of property was just and equitable because it set aside one of the husband's several properties to provide a decent roof over his divorced wife and a home for her and their children. The condition was that the property was not to be sold or disposed of in the life time of the wife, so as to ensure that it remained the home of the wife and the children.

The property in dispute on the dissolution of the marriage was found to be jointly owned by the parties. The Court of Appeal shared the property equitably between them.

The Court of Appeal held as fair, just and equitable the order of the trial court to settle the movable and immovable properties of the husband or his wife and children upon the dissolution of the marriage.

The court set aside the lump sum award of N10, 000 in favor of the wife/petitioner was set aside because it was not within the contemplation of the law.

Any award made for extraneous reason, no matter how inviting, will be set aside. See also Section 73(1) (a), Matrimonial Causes Act.

The court awarded the wife a lump sum for her contribution to the marriage through assisting in the construction of the matrimonial home after the dissolution of the marriage. See also Section 73(1) (a), Matrimonial Causes Act.

In the case, the court held that whilst the ability to pay a lump sum is based on the financial standing of the husband, the actual amount to be paid is not to be based on the wealth of the husband or the anticipated financial needs of the wife having regard to her standard of living before the divorce.

The court has the power to discharge an order of award if the party in whose favor it was made, marries again or if there is any just cause to do so.

It was correctly pointed out in this case by the court that Section 70 of the Matrimonial Causes Act does not lay down any particular part of the combined resources of the parties as the entitlement of the party asking for maintenance.

The court stated in this case that at common law, a wife has a right to claim maintenance from her husband upon the dissolution of the marriage but that by statutory provision, the question of maintenance is a matter within the discretion of the court to grant or withhold. See also Section 70, Matrimonial Causes Act.

The court held that by the provision of Section 70(3), Matrimonial Causes Act, an order for the maintenance of a party can be made by a court notwithstanding that a decree is, or has been made against that party. A wife may claim maintenance from the husband even if there is no suit for divorce or separation.

In other words, the wife to a marriage under the Act is entitled to claim maintenance if her husband wilfully neglects to maintain her without instituting a matrimonial case. See also Ekisola V. Ekisola (1961) LLR 8; Okpagu V. Okpagu (1947) 12 WACA 137.

The court held that while spouses are free to enter into agreements which oblige the husband to maintain his wife, it would be contrary to public policy if they attempt thereby to oust the jurisdiction of the court.

The court held that the grant of an order for maintenance by a spouse is subject to the discretionary power of the court to grant. See also Nanna V. Nanna (2006) 3 NWLR (PT. 966) 1.

The court held that in making an order for maintenance, regard must always be had to the means, earning capacity and the conduct of the parties to the marriage and other relevant circumstances such as the standard of living to which the parties are accustomed, the requirements of the wife and even public interest or demand.

The court held that the factors which must be taken into consideration before an order for maintenance is made by the court include:

a. The parties' income;

b. Earning capacity and by implication, properties owned by each party;

c. Financial resources;

d. Financial needs and responsibilities;

e. Standard of life of the parties before the dissolution of the marriage, their respective ages and the length of time they were husband and wife.

The Supreme Court declared in this case that common law rules are no longer applicable to maintenance in matrimonial causes in Nigeria.

It was stated in this case that the modern trend is that obligation to maintain the wife ceases at a decree of dissolution of marriage.

The Court of Appeal in considering an order for maintenance took into account the appellant's assets, his manufacturing companies, each of which has a turn-over of over 20 million naira per day, luxury cars and houses.

The Court of Appeal stated that the conduct of the parties is to be taken into account only in a broad way in making an award, that is, where there is something in the conduct of one party, which will make it quite inequitable to leave that out of account having regard to the conduct of the other party as well as in the course of the marriage.

The court after awarding the wife/petitioner maintenance held that the payments were to cease if the petitioner remarried, lived with any other man or had a child by any other man.

The court held that an applicant in a proceedings for maintenance will provide the court the following information;

a. The property, income and financial commitments of the claimant.

b. The capacity of the claimant to earn income.

c. The property, income and financial commitments of the spouse of the claimant that are known to the claimant.

d. The capacity of the spouse of the claimant to earn income so far as the capacity is known to the claimant.

e. Any financial arrangement in operation between the claimant and the spouse of the claimant.

f. Any order of a court under which one of the parties to the marriage is liable to make payments to the other.

g. The ownership of the home in which the claimant is residing and the terms and conditions upon which the claimant is occupying or otherwise residing in that home.

In the case, the testator appointed two persons by his will to act as the guardians of his infant daughter. He also authorized the survivor of the guardians to appoint another person to appoint a guardian; the court held that the appointment made by the survivor was valid.

A guardian has the duty to account to the ward for any property of the infant which has come into his hands upon termination of the guardianship. If money is paid to the guardian for the maintenance of the ward, it is presumed that the money is properly expended unless an abuse is clearly proved.

In this case, the court held that the list of payments and receipts produced by the defendant who was a guardian should be scrutinized. The defendant was therefore held liable to repay the balance.

The court held that the burden is on a guardian to show that there was no undue influence, that is, that the ward acted on independent advice where gifts are made by a ward to the guardian during the guardianship or soon afterwards.

The court held that guardianship is not terminated by the marriage of a male ward.

The court held that a child is legitimate, if he or she was born in lawful wedlock in accordance with the marriage act, customary and Islamic law.

In this case, it was laid down by the court that where there is evidence of a valid marriage in existence, there is the presumption that the child is legitimate. Any person born during the continuance of a valid marriage shall be presumed to be a child of that man. Under 165 of the Evidence Act, any person born during the continuance of a valid marriage between his mother and any man, or within 280 days after dissolution of the marriage, the mother remaining unmarried, shall be presumed to be a child of the man. See also Idahosa V. Idahosa (2020) 6 N.W.L.R (PT. 1720) 254 S.C.

The court held that any person born during the continuance of a valid marriage is presumed legitimate and the burden of proving otherwise rests with the party alleging the contrary. See also Ukeje V. Ukeje (2014) 11 NWLR (PT. 1418) 384.

In the case, the man who was in a statutory marriage, went ahead to marry another woman under customary law which produced three children. The court in this case held that the children were illegitimate as there ought to have been a subsequent statutory marriage to legitimize them.

To legitimate a child, by subsequent marriage, the marriage must be a statutory marriage, that is, marriage under the Act. Section 3 of the Legitimacy Act provides that when the parents of an illegitimate person marry or have marries one another, whether before or after the commencement of the Legitimacy Act, the marriage shall, if the father of the illegitimate person was or is at the date of the marriage domiciled in Nigeria, render that person if living, legitimate from the commencement of the act, or from the date of the marriage, whichever last happens. Certain prerequisites must be fulfilled as stated in the above section. First, the parents of the illegitimate person must have subsequently married each other. The marriage must be on statutory in accordance with the marriage act and not a marriage under customary law. Second, the father must be domiciled in a state in Nigeria at the time of the marriage. Lastly, it is essential that the person to be legitimated must be alive at the date of the marriage.

It was held by the court in this case that a baptism certificate bearing the name of the natural father cannot be regarded as an admission of paternity to him but where there is a ceremony of the child's naming ceremony, it will be regarded as such.

The court held in this case that the maintenance of the child by the natural father by the payment of school fees is regarded as evidence of acknowledgement.

The court held in this case that there was no evidence of a rule of legitimization by acknowledgment under Tiv customary law.

It was held by the court in this case that no evidence was led to establish that the principle of acknowledgement was part of the applicable Ibo customary law.

The court held that a child conceived during, but born after the termination of a statutory marriage may be legitimated by acknowledgement.

The Supreme Court held that where the paternity of an illegitimate child is acknowledged by the putative father, the child will be regarded as legitimate.

The Supreme Court noted that a will has two distinct meanings, the first being a metaphysical meaning denoting the sum of what a testator wishes or desires to happen after his death. The second meaning is physical and this connotes the documents in which the intention is expressed.

The court held it essential that a testator should understand the nature of the act of making a will and its effects; shall understand the extent of the property of which he is disposing; shall be able to Comprehend and appreciate the claims to which he ought to give effect; and , with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties, that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.

The court held that pressure of whatever character, whether acting on the fears or the hopes, if so, exerted as to overpower the volition without convincing the judgment, is a species of restraint under which no valid will can be made.

The court held that a will was conditional on a testator surviving his wife where by the testator stated in his will, "if I survive my wife and inherit under her will..." unless and until the specified condition occurs, a conditional will cannot take effect.

The court held that witnesses to a will must sign their signatures after that of the testator. It is not permissible for them to sign before the testator and thereafter merely acknowledge their signatures.

The court held that under the Wills Act, a testator may dispose of all his personal and real estate to which he is entitled at the time of his death.

The court held that the estate of an intestate which will be distributed in accordance with the Administration of Estates Law covers all types of property whether personal or real. However, such property must be such that the intestate could have disposed of by will.

In this case, both parties were first married under common law and under the marriage act a few years later. In between both marriages, the husband made a will under the Wills Act, 1837. Upon the death of the husband, the issue arose whether the statutory marriage ad revoked the will made prior to the statutory marriage but after the customary law marriage to the same person. The Supreme Court held that the will was not revoked by the subsequent marriage under the act to the same wife married already married under customary law, the marriage being a marriage recognized in law in Nigeria.

The court further held that the marriage which can revoke or invalidate an existing will as contemplated under the wills act is the one within the English concept, which connotes a marriage between a man and woman, who were of single status at the time of the marriage and therefore possessed the legal capacity to contract a marriage under the Marriage Act.

In this case, the Supreme Court held that the deceased testator did not have the right to dispose by will family land which was un-partitioned belonging to his wife's family as this as contrary to customary land tenure.

The Supreme Court considered the Bini customary law of inheritance and held, to wit; that only the first surviving son of a Bini man who performs the final burial rites of his deceased father is entitled to the welling house known as the Igiogbe, of his father; thus the Igiogbe could not be disposed by will to any other person but the first son in compliance with Section 3(1) of the Wills Act.

In this case, the court extended the application of Section 3(1) of the Wills Law to other properties outside the Igiogbe, with the effect of "robbing" a Bini man who is a hereditary office holder of testamentary power to dispose of his property.

The court held that under Ibo customary law, the eldest son inherits, as of right, the late father's dwelling house known as the "obi" and the immediate surrounding compound.

The court held in this case that it is a cardinal principle that in interpreting a will, the court will be guided by the intentions of the testator in so far as they can be ascertained from the document itself.

In the case, the court considered the duty of personal representatives to protect assets of an estate. In the case, the executors of the will of the deceased sought an injunction to restrain the widow of the deceased from intermeddling with the deceased's estate. The widow of the deceased claimed that the executors had no right to sue because they had not been granted probate. The court held that in the circumstances, the executors need not be granted probate before taking requisite steps to collect and preserve the deceased's estate.

In this case, the court considered the intestate succession among the Yorubas. The court held that all the children of a deceased intestate in Yoruba jointly succeed to and have rights in the estate of the deceased, the property being family property managed by the eldest living son of the deceased.

The court held that the children of a deceased intestate in Yoruba jointly succeed to the estate of the deceased. The children contemplated being both legitimate and legitimated children of the deceased, they all share equally irrespective of age or sex.

The court held that the surviving spouse of a deceased intestate does not succeed to the estate of the deceased spouse.

The court held that in the distribution of the estate of a deceased Muslim, the sons must get equal shares while the females have half a share each.

In this case, the court defined an administrator as a person to whom a grant is given by the court to administer the state of a deceased person.

The Supreme Court held that where a person institutes an action in respect of the property of a deceased person and has not obtained a grant of administration, such action is null. In the case, the 1st respondent commenced an action to set aside the revocation of the right of occupancy which was earlier granted to him, and revoked and given to General Sani Abacha by the Rivers State Government. The action was brought in the name "The administrators and executors of the estate of General Sani Abacha (Deceased). The court stated that the lower court ought to have struck out the case for not being properly commenced.

However, under the principle of relation back which allows a plaintiff to amend a complaint to add a cause of action, he can subsequently obtain a grant of administration and amend his writ to show his new status as the administrator of the estate.

The court in defining who a child stated to wit, when I myself use the word child, in contradistinction to when I am quoting someone else's words, I mean those below the age of puberty. At common law, these ages were deemed to be twelve for a girl and fourteen for a boy. As, however, fourteen is the age of consent in Canada and has been, for girls, for over one hundred years, a child is anyone under the age of fourteen.

In this case, the term child was described more thoroughly by the court. The court stated that both in common parlance and as a legal concept, the term child has two primary meanings. One refers to chronological age and is the converse of the term adult; the other refers to lineage and is the reciprocal of the term parent. A child in the first sense was defined at common law as a person under the age of fourteen. This definition may be modified by statutory provision. No statutory modification, however, fixes an age higher than the age of majority which is 18 years. a child in the second sense was defined at common law as the legitimate offspring of a parent, but in most jurisdictions this definition has been amended by statute to constitute all offspring, whether legitimate or not, as the children of their natural or adoptive parents.

The court considered the right of an illegitimate child to inherit his father's property in this case and held thus, that an illegitimate child acknowledged by his father according to customary law regardless of sex is entitled to inherit from the father's estate.

The court held that under customary law, a female member has the right to inherit family land and bequeath it to her children. It was further held that under Yoruba customary law, both male and female children of a deceased have equal rights to inherit.

The court held that while it is not necessary to show that the applicant for an adoption has a home in a particular state concerned, he must of necessity have settled headquarters there.

The court considered the circumstance where parental consent is withheld to an adoption. The court formulated a test to determine whether parental consent has been unreasonably withheld and stated that the test is whether a reasonable parent would regard a refusal to permit the adoption of a child as involving a serious risk of affecting the whole future happiness of the child.

The court held the father's inability to provide an immediate home for his child was not sufficient to make his refusal to an adoption order in respect of the child unreasonable. It would have been otherwise if his action was motivated by bad faith or was arbitrary.

The court described the formal procedure of customary law adoption in this case. The court stated that the adoption of a son under native law and custom is a ceremony to be performed to which the family are bidden. The adopter nominates his or her adoptee to the family and the ceremony is over.

In the case, X took the child of his deceased sister into his household and the child lived with him over a long period of time. During this period, X was responsible for the child's maintenance and upbringing. The court held that the child was adopted by X under customary law.

The court held that if a member of a family sells family property as his privately owned land, the sale is void ab initio.

The court held that where a member of a family sells the family land which he is resident on or has been allocated, he forfeits his tenancy.

The court held that the general rule is that the courts will not order the sale of family property so long as it is capable of achieving the objective for which it was created.

The court held that if a branch of a family feels that partition of family property will be oppressive, it may apply to the court to cancel the partition.

The court held that the general effect of partition of family land is therefore, that the family property loses its character as such and parts of it are owned absolutely by its members.