HELEN THERESA ANEKE (BY HER NEXT FRIEND VICTORIA ANEKE) (APPLICANT)

v.

VALENTINE H. AREWE ANEKE (RESPONDENT)

(1971) All N.L.R. 381

Division: High Court of Lagos

Date of Judgment: 8th February, 1971

Case Number: SUIT NO. M/186/1970

Before: Taylor C.J.

Preliminary Objection:

Application for maintenance and custody.

HELD:

(1)     The marriage between the applicant's mother and the respondent, being under customary law, was not within the provision of the Matrimonial Causes Decree. Therefore the applicant's mother had no access to the courts through the Matrimonial Causes Decree 1970.

(2)     It could certainly be said that the applicant was a child of the 1970 marriage under s. 69(c) of the Matrimonial Causes Decree 1970, provided applications under this part of the Decree could be brought independently of a Matrimonial Cause between the husband and wife.

(3)     The Matrimonial Causes Decree 1970 was not intended to create an alarming departure from the past by giving liberty to a child of the marriage, whether by adoption or by birth, to have access to the courts against both of her parents where there is no dispute between the parties, with a view to asking the court to award maintenance and decide the issue as to who was to have her custody.

(4)     In this case, the applicant's mother being married under customary law had no access to the courts through the Matrimonial Causes Decree but was endeavouring as it were by the back door to gain entrance as the next friend of her child, a member of another household under S. 69(c) of the Matrimonial Causes Decree.

(5)     Whichever way one looked at it, whether in the light of the cause being instituted by the infant or by her natural mother there was no provision in the Matrimonial Causes Decree or the Matrimonial Causes Rules conferring such a right on either of them to make this application.

Preliminary Objection sustained: Application dismissed.

Cases referred to:

Esua v. Esua M/63/1970 of 4th December, 1970.

In Re Dulles v. Vidler (1951) 1 Ch. 265.

Decree referred to:

Matrimonial Causes Decree 1970 s. 69(a)(b)(c): 70:71.

Act referred to:

Guardianship of Infants Act s. 5 (England)

PRELIMINARY OBJECTION

APPLICATION FOR MAINTENANCE AND CUSTODY

SUIT NO. M/186/1970

Applicant Not Represented.

Ogunsola for the Respondent.

Taylor, C.J.:-This is an application brought by a child of a marriage under Native Law and Custom applying through her mother as her next friend, against her father "to show cause why an order for maintenance and custody should not be made against him in respect of the child-Helen Theresa Aneke."

After several adjournments had been granted with a view to the settlement of this matter, when the proceedings came up for mention on the 18th January, 1971 learned Counsel for the respondent raised a preliminary objection. The gist of the argument of Chief Williams, learned Counsel for the respondent was that there is no provision for an application of this nature to be brought by the child or infant but that under S. 5 of the Guardianship of Infants Act the mother of the child may apply to Court and so may the intending custodian if she is not the mother.

In reply Mr Akinrele states that there is no express prohibition against an application of this nature being brought by the child and that proceedings in respect of custody or guardianship of a child can be brought despite there being no matrimonial dispute. Mr Akinrele, learned Counsel for the applicant brings this application under and by virtue of Section 70 and 71 of the Matrimonial Causes Decree 1970 and I think that might be a convenient stage to begin considering the legal issues involved in this matter. Section 70(1) reads as follows:-

"Subject to this section, the court may, in proceedings with respect to the maintenance of a party to marriage, or of children of the marriage, other than proceedings for an order for maintenance pending the disposal of proceedings, make such order as it thinks proper, having regard to the means, earning capacity and conduct of the parties to the marriage..."

The first point that arises for determination is whether the applicant is a child of the marriage in the sense in which marriage is defined in S. 69 of the Decree. That section states that:-

"'Marriage' includes a purported marriage that is void, but does not include one entered into according to Muslim rites or other customary law..."

Prima facie then the marriage between the applicant's mother and the respondent, being under customary law, is not within the provision of this section or Decree. Learned Counsel however goes on to say that the applicant is a child of the marriage between the respondent and Mrs Rosaline Aneke (nee Bassey) which took place on the 25th

August, 1970, under the Marriage Act by virtue of S.69(a) and (c) of the Decree which continues in these words:-"... and 'children of the marriage' includes

(a)     any child adopted since the marriage by the husband and wife or by either of them with the consent of the other;

(b)     any child of the husband and wife born before the marriage, whether legitimated by the marriage or not; and

(c)     any child of either husband or wife...if at the relevant time, the child was ordinarily a member of the household of the husband and wife."

I think the relevant one for consideration is (c) in as much as the affidavit does not state that the applicant has been adopted by either spouse of the 1970 marriage with the consent of the other. Quite apart from that I should imagine that (a) is not meant to cover a child of either spouse but a complete stranger that has been adopted by the parties. Subsection (c) seems to be the relevant one but here one must consider whether the facts sufficiently show that the applicant was "ordinarily a member of the household of the husband and wife" at the relevant time. A definition of what time is the relevant time is contained in the same section 69 and I propose to cite both passage as they also throw a light on another aspect of this application. It reads thus:-

"'relevant time' means in relation to proceedings under this Part of this Decree either:-

(a)     the time immediately preceding the time when the husband and wife ceased to live together or, if they have ceased on more than one occasion to live together, the time immediately preceding the time when they last ceased to live together before the institution of the proceedings; or"

Now it is clear from this part that "husband and wife" means "husband and wife" by a marriage recognised or rather contemplated by this Decree. This being the case there is certainly no evidence here that the respondent and Mrs Rosaline Aneke (nee Bassey) have since their marriage ever ceased to live together. Now (b) provides that:-

"If the husband and wife were living together at the time when the proceedings were instituted, the time immediately preceding the institution of the proceedings."

On the affidavit sworn to in this matter the applicant ceased to live with the respondent and Mrs Rosaline Aneke on the 27th October, 1970 and the application was presented on the 14th November, 1970. It could certainly be said that the applicant was a child of the 1970 marriage under this subsection provided applications under this part of the Decree can be brought independently of a matrimonial cause between the husband and wife.

In short can a child of a man by a customary marriage, who by virtue of a subsequent marriage by the man to another woman under the Marriage Act, has become a member of the latter household by virtue of this Decree, bring an application for her maintenance and custody when there is no matrimonial dispute or proceedings between the parties to the marriage?

My attention was drawn by Chief Williams to the decision of Kazeem J. in ESUA v. ESUA SUIT NO. M/63/70 of the 4th day of December 1970, in which the learned Judge held in the interpretation of Sections 70 and 71 of the Decree that:-

"The powers conferred on the court by section 70 of the Decree, are only to be exercised 'in proceedings with respect to the maintenance of a party to a marriage, or of children of the marriage, other than proceedings for an order for an order for maintenance pending disposal of proceedings,' Similar powers are conferred in section 71 of the Decree 'in proceedings with respect to custody, guardianship, welfare, advancement or education of children of a marriage.'... The aforementioned wordings of our sections 70 and 71 of the Decree are not ambiguous and I am clearly of the opinion that separate applications for maintenance and custody of the children could be brought under the two sections without their being tagged on to other relief's in a matrimonial cause."

I do not propose to express my views one way or the other on this particular point preferring to do so when I am faced with that issue and that issue alone. The facts of the present application are far different from those in issue in the matter before my brother Judge. The main contention here relates to whether as I have said before a child of the marriage can under the circumstances already stated bring this application. One important point seems to have been overlooked by learned Counsel for the applicant and that is the apparent conflict in relation to the status or position of the applicant and the party representing her. In one breath it is contended that Helen Theresa Aneke is a member of the household of the respondent and Mrs Rosaline Aneke under and by virtue of S.69(c) of this Decree and in the next breath she brings an application not through any member of the household or guardian ad litem but through her next friend who in actual fact is her natural mother "under a customary marriage."

I find it hard to accept the proposition that the Matrimonial Causes Decree of 1970 was intended to create what I would describe as an alarming departure from the past by giving liberty to a child of the marriage, whether by adoption or by birth makes no difference, to have access to the courts against both of her parents where there is no dispute between the parents, with a view to asking the court to award maintenance and decide the issue as to who is to have her custody. In the particular case before me the applicant's mother being married under customary law has no access to these Courts through the Matrimonial Causes Decree but is endeavouring as it were by the back door to gain entrance as the next friend of her child a member of another household under S. 69(c) of this Decree.

By way of interest, and on the issue of custody, rule 54 of the 1957 Matrimonial Causes Rules sheds a little light on this matter. It states inter alia that:-

"Any of the following persons, that is to say