THE MARRIED COUPLE AND THE LAW OF SETTLEMENT OF PROPERTY IN NIGERIA: A CRITIQUE
DR. BRIGHT E. ONIHA*
1.0 Introduction
Recently, the Chief Judge of Oyo State, Hon. Justice Munta Abimbola delivered a landmark decision that rekindled the debate over the traditionally volatile issue of settlement of prenuptial and post nuptial property in an ailing or “deceased” marriage in Nigeria. After divorce, the parties to a failed marriage tend to go separate ways. However, several issues that are ancillary to the dissolution or “interment” of the marriage are also thrown up for consideration and determination. They include custody and maintenance of the children and wife of the marriage, as well as the sharing of the property that were acquired during the subsistence of the marriage. In the case of the latter, women are often disadvantaged. The inequality in the sharing of such property is attributable to several factors ranging from economic, social, cultural, religious, political factors. In everyday marriage life in contemporary Nigeria, times have changed; such that it has become very common to find women as the bread winners, real property owners or major contributors to property acquisition in many marriages in Nigeria. In the modern Nigerian family life, upon marriage, couples often pull resources together in the acquisition of property. A very familiar sight is to now see both husband and wife gainfully employed and earning money. In many cases, although the property may be purchased, for instance, in the name of the man, the wife has made substantial contribution either directly or indirectly by deploying her earnings to cover other departments of household expenses so as to free up resources for her husband to buy the property. In such circumstances, the question may be asked, in the event of divorce, to who does the resultant property acquired, belong to? Is such property owned solely by the husband or wife or solely by the person in whose name it is bought, especially where significant contributions have been made by both parties? What about where a woman does not make any financial contribution at all ; but does her part by staying at home to keep it clean, bring up the children, takes care of her husband and carry out other household obligations other than financial contribution. Is she to be excluded from having a share in the property acquired by the man in his name? This paper seeks to interrogate these issues and with the aid of existing statutory and decided judicial authorities attempt to provide answers to some of these questions. It further exposes the limitations of the state of the law of settlement of property in Nigeria upon dissolution of marriage. Finally, it concludes that the law in this area remains unfair, especially to women and patently inconsistent with the spirit of matrimony and oneness of couples. The paper recommends a departure from the present legal regime by way of reform of extant laws regulating marriages in Nigeria. The proposed reform shall inter alia; include specific statutory creation or recognition of matrimonial property in all forms of marriages in Nigeria. It further recommends increased judicial flexibility and activism in this area of the law.
2.0 Property
According to Black’s Law Dictionary, property is the right to possess, use, and enjoy a determinate thing (either a tract of land or a chattel); the right of ownership.
2.1 Types of Property
Property may be classified into various types. For the purpose of this paper, they include the following:
(i) Marital Property
This is property that is acquired during marriage and that is subject to distribution or division at the time of marital dissolution. Generally, it is property acquired after the date of the marriage and before a spouse files for separation or divorce.
(ii) Joint Property
This represents real or personal property held by two or more persons with a right of survivorship.
(iii) Real Property
Real property (also termed real estate) refers, “to land and anything growing on, attached to, or erected on it, excluding anything that may be severed without injury to the land. Real property may be corporeal(soil and buildings) or incorporeal (easements).”
(iv) Dotal and Extra-dotal Property
Dotal property constitutes separate property that the wife brings to the marriage to assist the husband with the marriage expenses. Whilst, extra dotal property is that portion of a wife’s property over which she has complete control
3.0Meaning and Nature of Settlement of Property
Although, the Matrimonial Causes Act (MCA) does not define the term “settlement of property”, sharing of property after divorce in Nigeria also regarded as settlement of property is the transfer or sharing of property of a party that may be jointly owned to or with the other spouse. In the course of marriage, it is common for couples to jointly acquire real or other property for instance as their matrimonial home. They may do so in their individual names or by using both of their names. It may also be that the property may have been acquired by one of the parties, sometimes in his/ her name but with substantial or some form of contribution by the other. Where the marriage fails, some of the disputes that arise with regards to properties usually revolve around who is entitled to keep or dispose of the properties acquired during marriage. This mostly comes as an ancillary relief granted during divorce proceedings.
4.0 Right of a Married Woman to Own Property.
The question of whether there exists a right of married women to hold property in marriage is now one which many now simply answer with, a majestic and emphatic “Of course,” wave of the hand. But historically, this has not always been the case. Let us briefly examine how we got here.
4.1 Under the Common Law
Nigeria is of common law heritage. The common law position in respect of the status of a married woman in relation to property acquired during the pendency of marriage was succinctly stated by Lord Denning MR in his book, The Due Process of Law. According to him, we now know that in the marriage service, it the man that assures the woman that, ‘with all my worldly goods l thee endow,” But the law did the exact opposite. Upon marriage all the woman’s goods and chattels and all her money automatically belonged to the man save for her personal clothing and paraphernalia. If her parents or friends gave her wedding presents… they belonged to the husband. If during the marriage she went out to work, all that she earned belonged automatically to her husband. She had to go on bended knee, whenever she wanted to buy anything even with her own money or her own earning. If she left him, even for good cause, she had no right to any maintenance even out of her own funds. The only remedy which the common law gave to her was that she could pledge his credit for necessaries, but even then she had to find some tradesmen who would supply her- none might be willing to do so. Most tradesmen, however keen they were to do business, also wished to be sure of being paid. They did not wish to be involved in a lawsuit as to whether the wife was entitled to pledge her husband’s credit or not. If they were unwilling to accept the husband’s credit, it was useless for the wife to pledge her own. She had no power to contract on her own behalf, because she was one with her husband and could agree to nothing apart from him. Moreover, she had no property or money with which to honour any contract which she might make. She was in a parlous plight.She was also not entitled to anything in terms of settlement in case of dissolution of her marriage.
4.2 Customary law
In very many African Societies, the legal rights of women generally and married women in particular are smothered by rules of custom, tradition and religious beliefs. However, these customs and traditions are not uniform. They vary from society to society, community to community; often dependent on disparate prevailing customs or usages being reflective mirrors of accepted usage of a particular community. In other words, each community generally has its own system of indigenous customary law. As Chinua Achebe’s wisdom, like a goat skin bag, every one carries his own.Inside the disparity, there is however, unity. Part of the obvious unity can be found in the recognition of limitations in the property rights of women in Nigeria by many communities. Some of these customs have been struck down as obnoxious and barbaric by our courts. Such customs pronounce for instance that the roles of women should largely be confined to the, “other room,” child bearing, tending to these children and the Kitchen. The personality of the African woman collapses into that of her husband upon marriage. She is regarded as a chattel in his house and therefore hardly capable of holding any tangible property of her own. Equality of the sexes is generally alien to most African societies. This perception of inequality naturally transcends into the realm of property rights. What she has, she gives to her husband as her own contribution and is regarded as a gift. In Suberu v Sumonu, the court made this observation that women are treated as chattel to be inherited amongst the legal heirs of her deceased husband. However, under Sharia law, women are permitted to own property.
4.3 Statutes
There has been a significant statutory intervention that confers the right to own property on married women in Nigeria. This right is now embedded in many statutes. As far back as1882; the right to own and dispose property has been statutorily recognized even before the creation of the country, Nigeria.This is by virtue of the received English Married Women Act of 1882, a statute of general application in Nigeria, still made applicable by section 32 (1) of the interpretation Act. In this regard,unlike in the common law past,The Married Women Property Act provides:
A married woman shall, in accordance with the provisions of this Act, be capable of acquiring, holding, and disposing by will or otherwise, of any real or personal property as her separate property, in the same manner as if she were a feme sole, without the intervention of any trustee.
Feme sole, (“single woman”) above refers to a woman who had never been married or who was divorced or widowed or to a woman whose legal subordination to her husband had been invalidated by a trust, a prenuptial agreement, or a judicial decision.
4.4 The Constitution
The Constitution of Nigeria, 1999 guarantees the right of every Nigerian (irrespective of sex) to acquire property. In this regard, section 43 thereof provides as follows, “Subject to the provisions of this Constitution, every citizen of Nigeria shall have the right to acquire and own immovable property anywhere in Nigeria.” The Constitution further prohibits the compulsory acquisition of moveable property or any interest in an immovable property except in the manner and for the purposes prescribed by law. It further provides against discrimination on grounds, inter alia, of sex in section 42(1).
4.5 International Instruments
Several international Instruments either expressly guarantees the right of women generally to acquire property or prohibit all forms of gender discrimination. Some of them include, the African Charter of Human and People’s Rights,Convention on the Elimination of All forms of Discrimination against Women (CEDAW) 1981, Universal Declaration of Human Rights (UDHR)1948. And the International Covenant on Civil and Political Rights (ICCPR)
5.0 Settlement of Property in Nigeria
Settlement of property usually depends on the form of marriage entered into by the parties. Due to the plurality in the Nigeria Legal System, there are different legal principles guiding settlement of properties under different forms of marriage in Nigeria where there are basically, two forms of marriages. They are the Statutory and Customary Marriages. Under the latter genre, there is also the Islamic Marriage which is basicallyembedded under customary marriages. Let us briefly look at them.
5.1. Statutory Marriage:
This form of marriage is contracted under the Marriage Act, a Federal enactment designed for the celebration of a voluntary union between a man and a woman to the exclusion of all others during the continuance of the marriage. Marriage under the Act as it is sometimes referred to, by its nature, is therefore monogamous. It is a union that terminates at the death of either spouse.
5.2. Customary Marriage:
Customary marriage has been defined by Justice A.P. Anyebe as, “... a union of one man and a woman or women to the exclusion of all others…” The Union extends even beyond the life of the man but terminates substantially at the death of the woman. It is essentially a marriage contracted under the various native laws and custom of the various communities in Nigeria. According to Dr. Bright Oniha,( this writer), from the foregoing, it is clear that ample allowance is provided under customary law for the enjoyment of polygamy, given that there is no limit to the number of wives a man can marry under customary law. Although, it must be said, that this fact is a key disincentive to women desirous of exclusive right and possession of their husbands to enter into customary marriages. It is nonetheless, the commonest form of marriage with statutory recognition in the Marriage Act. As has already been alluded to, Islamic marriage is marriage conducted according to the tenets of Islamic law. It is a variant of (non indigenous) customary law marriage, no certificate is issued; it is also not limited to one man and one woman. Indeed, a man can marry as many as four wives provided his is capable of meeting the strict requirements and conditions stipulated under Islamic Law.
5.3 Settlement of Property in Statutory Marriages.
According to M.O.A Ashiru, following the dissolution of marriage in Nigeria, although there are laws allowing either spouse to apply to court for a share of matrimonial assets, it is usually the women that often bring such application, as in most cases the man is in a stronger position in relation to the assets of the deceased marriage. Although, she may have made significant financial contributions and in some cases solely finance the purchase, the legal title may be in the name of her husband, therefore leaving her with the onerous task of establishing her contributions towards the purchase of the properties. This task is made more herculean given the fact that she might not have kept proof of her contribution, such as receipts since she did not anticipate separation or divorce at that time.
In the settlement of property in statutory marriages in Nigeria, two principal Laws are of particular significance. They are the Married Women’ Property Act 1882 which is a Statute of general application, and the Matrimonial Causes Act.
5.3.1 The Married Women Property Act 1882
Section 17 of the Married Women Property Act 1882 allows a husband or wife to bring an application by summons or otherwise in a summary wayto any Judge of the High Court in relation to title or possession of property. The point must be underscored that this provision is a procedural one, which can be used at any time, whether or not a marriage is dissolved, to resolve a question as to title or possession of property. It is not a means of giving title which did not previously exist. In Hine v Hine in interpreting this section, Lord Denning MR stated as follows:
…It seems to me that the jurisdiction of the court over family assets is entirely discretionary. Its discretion transcends all rights, legal or equitable, and enables the court to make such ordersas it thinks fit. This means, as l understand it, that the Court is entitled to make such orders as may be fair and just in all the circumstances of the case.
The above principle was however scuttled by the British House of Lords in Pettitt v Pettitt. Where the Lords declared that section 17 was procedural only. It did not affect the legal rights of either party. In every case, the court has to inquire what are; the legal rights of the parties and give effect to them – without exercising any discretion in the matter. To do otherwise, according to Lord Hodson, “… would be to substitute the uncertain and crooked cord of discretion for the golden and straight metwand of the law.”
However, Efe submits that the Married Women Property Act (WPA) established the doctrine of separate property between spouses. It vested married women with separate ownership rights to property as if they were feme sole [unmarried or a single woman]. This makes it possible for married women to establish claims for ownership whenever there is a dispute concerning property. With the operation of the MWPA, any personal (movable) or real (immovable) property acquired by a woman before or after her marriage is treated as her separate property. According to him, it is germane to emphasize that section 17 thereof does not regulate the redistribution or readjustment of property between spouses on the dissolution of a civil marriage. The primary aim of section 17 in respect of disputed property between spouses is for the court to determine questions regarding the ownership of property between spouses as it think fit. The striking phrase from section 17 of the MWPA is “as he thinks fit”. The opinion has been expressed that this phrase does not give the court the unfettered discretion to redistribute property in accordance with what it deemed just.At divorce in Nigeria, it is common for spouses to rely on the provisions of the MWPA to establish the ownership of property, as was done in Aderounmu v Aderounmu.Whenever there is a property related dispute between spouses, therefore, Nigerian courts interpret the provisions of the MWPA strictly to determine the extent of a spouse's interest in the property of the other spouse.For a spouse to succeed, he or she must prove a direct financial contribution to the purchase or development of the disputed property based on ordinary rules of property law. The courts have held that, where a spouse makes a claim for an interest in property, he or she must provide cogent evidence of a financial contribution to that property. For a spouse to succeed, he or she must prove, on the balance of probability, that he or she is a joint owner of the property in question or that his or her financial contribution was substantial with regard to the purchase or development of the property about which there is a disputed interest. Financial contribution to property is, thus, the only basis for the establishment of an interest in property at divorce. According to the Supreme Court in Amadi v Nwosu,a claimant needs to explain not only the quantity and quality of his or her contributions to the disputed property, but also give details and particulars of the contributions that would enable the court to decide in the claimant's favour.
Similarly, In the light of the above, Efe CJ has rightly argued that as it currently stands in Nigeria, there is no authority to the effect that a spouse's indirect contributions or a wife's domestic contributions to the family's welfare will alone give rise to a claim for a beneficial interest in property acquired in the sole name of the other spouse. He further submitted that, “… the exercise of the court's discretion in relation to the settlement of property has been limited and, to a great extent, has failed to echo the unheard voices of Nigerian women in respect of the financial tragedies that they encounter during marriage and at divorce.’’
Arising from the above, Efe rightly hold the view that, “This leads to the conclusion that, in Nigeria, property rights between married spouses are completely separate. It is argued that the complete separation of property system, which requires a spouse to present “evidence of direct financial contribution to the acquisition or development of the property or an agreement to that effect” in order to substantiate his or her interest in the property, runs contrary to the partnership element of marriage and places the less buoyant spouse (most often the woman) in a disadvantaged position at divorce. A law, fashioned in this light, regards spouses simply as commercial partners, with an obligation to give detailed accounts and keep close records of their transactions with each other.”
5.3.2 Settlement of Property under the Matrimonial Causes Act
Section 72 of the Matrimonial Causes Act provides as follows:
(1) The Court may, in proceedings under this Act, by order, require the parties to the marriage, or either of them, to make, for the benefit…of any of the parties… to the marriage such a settlement of property to which…either of them is entitled… as the court considers just and equitable in the circumstances of the case. (underlining supplied for emphasis)
(2) The Court may… make such order as the Court considers just and equitable with respect to the application for the benefit of all or any of the parties to … the marriage of the whole or part of property dealt with by ante- nuptial settlements on the parties to the marriage, or either of them.
This Act clearly gives the court a discretion in relation to settlement of property by a couple who are married under the Act. The overriding consideration that directs the exercise of the court's jurisdiction is the term “just and equitable”. A property settlement order made pursuant to section 72(1) must therefore satisfy the “just and equitable” requirement in the circumstance of each case.it is noteworthy that the Matrimonial Causes Act (MCA) does not contain any statutory guidelines for the exercise of the court's discretion under section 72, nor does it outline any considerations or criteria that Nigerian courts must follow in making appropriate orders under section 72. Prof. E.I Nwogugu in this regard, states that the main concern of the court in these proceedings should be considerations of justice and equity in respect of the property which may be settled. In the determination of the extent of the property to be settled, the court will consider all the circumstances of the case including the fortunes of the parties and family responsibilities. It is unlikely that a spouse may be ordered to make settlement for the benefit of the parties and their children unless his or her property greatly exceeds that of the other spouse. The court is entirely at liberty within the parameter of justice and equity to determine what interest to vest in either spouse or children of the marriage.
In Akinbuwa v Akinbuwa, the Court of Appeal held as fair, just and equitable the order of the lower court for the settlement of the property of the husband on his wife and children and execution of documents of title in respect of the real property settled in favour of the wife, repair and hand over of the keys to the property in questionto the Registrar of the High Court and to continue to be responsible for the mortgage debt in respect of the property on the dissolution of the marriage. Whilst, in Mueller v Mueller,the property in dispute was adjudged to be jointly owned by the parties, upon dissolution of their marriage. The Court of Appeal shared the property equitably between them.
According to Chinedu Justin Efe,The courts are not enjoined by statute when making a property settlement order to take into consideration a spouse's indirect financial or non-financial contributions to the acquisition of the property. For instance, a spouse cannot rely on his or her domestic contribution to the family, without any further direct financial contribution to the acquisition of property, for a beneficial interest in that property.
A contribution is said to be direct when a spouse makes a direct payment towards the acquisition, mortgage or lease of the property in dispute. An indirect contribution will include a spouse's contribution to the improvement or development of the property in dispute. A spouse's contribution will also be indirect in cases where the spouse undertakes to bear household expenses in order to enable the other spouse to acquire a specific property. In his dissenting judgment in Egunjobi v Egunjobi, Fakoyode JA expressed his opinion as follows:
[i]t seems to me that if a wife foregoes house-keeping allowances from her husband and runs the house at her own expense for a substantial period of time in order to enable her husband save money to buy or acquire some specific property e.g land, house or car, she should be entitled to some beneficial interest in the property even though her contributions to the property are indirect”.
In Dairo v Dairo, the Lagos High Court rejected the ancillary relief sought by the wife in proceedings for the dissolution of her marriage. In that case, the wife's uncontroverted evidence at trial was that both she and her husband had reached an agreement where she spent her income on the maintenance and welfare of the family while the husband spent his on building the matrimonial house. In the absence of proof of a direct financial contribution to the house, the court ignored the wife's claim for a share in the house.
In Okere v Akaluka, the Court of Appeal's judgment, held that the plaintiff (the wife) was entitled to 50 per cent of the proceeds from the sale of the house in dispute, on the basis of the fact that the wife had made substantial contributions to the acquisition of the disputed property.
In making the specific settlement orders, Ashiru, stated that under this provision, Judges in Nigeria seem to prefer making a lump or periodic payment orders. For instance,in Manakaye v Manakaye,where, although the husband had landed properties and investments worth millions in Nigeria, the court awarded the wife a lump sum payment. But this is not to say that the Courts do not grant proprietary rights to parties at all. For instance, in Kafi v Kafi, the High Court exercised its powers under section 72 of the Matrimonial Causes Act in making an order that the property be settled by deed. However, according to Efe, in this regard, a careful perusal of some of the provisions of section 73 of the MCA reveals, that, but for the provision of section 73(1)(j), Nigerian courts could interpret section 72 (settlement of property) as being capable of transferring ownership. For instance, in making a property settlement order under section 72, the court is empowered to order the execution of any necessary deed or instrument of title or the production of a document of title, among other things, in order to carry out a property settlement order effectively. Where a person who is mandated by the court to execute such a deed or an instrument of title in favour of a spouse fails or neglects to do so, an officer of the court may be appointed to do the same. It is also noteworthy that the execution of the deed or instrument by the person so appointed shall have the same force and validity as if it has been executed by the person directed by the order to execute it. The Matrimonial Causes Act further provides that where a deed or instrument is executed pursuant to the section, the court may make such order as it thinks just as to payment of the costs and expenses of and incidental to the preparation and execution of the deed or instrument. By section 72 thereof, the court is also empowered to make a permanent order in respect of section 72 of the MCA.
6.0 Settlement of Property under Customary Marriage
Generally, customary law is not uniform. Under the customary law many communities however; both the man and the woman can acquire property either before or during the marriage. The woman is not barred from holding or acquiring her own property and is entitled to same upon dissolution of marriage. Also when the man acquires a property, he has sole interest or right over the property. When a marriage under the customary law is being dissolved, the woman under some customs has no right to claim for settlement of property even if she contributes to the acquisition of such property. She cannot through a court order compel her husband share the property with her.In this regard, Justice O’ Connell Ogbonna, President of the Customary Court of Appeal, Ebonyi State stated that settlement of property is in theory an available relief under the customary divorce legal regime but in practice, it is non-existent. The reason being that within the Southern part of Nigeria especially, among the Igbos, wives are strictly considered among the properties/possessions or chattels of the husband. This being the case, whatever a woman may claim to have acquired in terms of property are in stricto sensu the husband’s property by extension. Hence, upon customary divorce, it is difficult to lawfully establish anything as belonging to the wife. However, most men in the exercise of equitable discretion allow their divorced wife to take out with them all such things like cloths and personal gifts with which they came with into the marriage. Others extend this to those properties given to the woman by her beloved family by way of settlement (iduuno) when she got married. Most assets, even where they were single or jointly acquired are not conceded to the woman except by the man’s ‘charity’. In this way, settlement of property under the customary law becomes a discretionary relief to be granted by the man as he pleases. This conclusion is of course without prejudice to any decision the customary court may find contingent and pragmatic due regards being had to the circumstance of each case.
Along similar lines, Justice John Bayo Olowosegun,stated that the Area or Customary Court by which a customary marriage is dissolved may also determine the ownership of any property claimed by either of the parties. For instance, In Benue State, paragraph 14 of the Declaration of ldoma Native Marriage law and Custom Order 1985 provides as follows: “The court shall determine the ownership of any property claimed by both parties in accordance with local custom”.
For those items of property acquired by the woman before the marriage and brought into the matrimonial home there may not be any problem. For those acquired while in her matrimonial home however, some controversy may arise as in most Africa traditional settings, the average man would not understand why a woman he also sees as part of his personal estate should be entitled to any property at all of her own.
It must be noted that any custom that encourages servitude or turns a wife into a chattel in contemporary Nigeria will almost invariably, fail to meet the standard of justice or the repugnancy test and right of all citizens to property as guaranteed under section 43 of the Constitution of the Federal Republic of Nigeria 1999 against which the efficacy of every law, including rules of customs must be tested. According to him, the court should at all times make orders as to ensure the security of a woman’s personal property acquired or money earned before marriage and the fair distribution of property acquired by joint efforts of herself and her husband during the subsistence of the marriage. This should also include absolute gifts made to her even by her husband before or during the life of the marriage, so that the under privileged spouse may not be rendered empty handed from a home she has contributed immeasurably to build.
6.1. Settlement of property under Customary Law and the Case of Toyin Arajulu v James Monday
In the jurisprudence of settlement of property in a customary marriage, the recent landmark case of decided by the High Court of Oyo State of ToyinArajulu ( formerly known as Toyin James) v James Mondayis worthy of special consideration. This case in effect has charted a new course in settlement of property under customary marriages. Here, the couples were married under customary law in 1997. They had 4 children who were still minors at the time the action was instituted. The marriage was later dissolved by an order of a Grade “C” Customary Court at the instance of the defendant. The claimant subsequently instituted an action claiming that during their marriage, parties contributed to jointly build a two flat building in 2004. This building, which was under construction, was, however, sold by the defendant in 2006 without her knowledge. She further alleged that in 2012, she jointly purchased another property with the defendant, being a plot of land at No 7, Fadama, Biala Estate, Olodo for the purpose of erecting a residential building. This building was completed and inhabited by the family, while another building was being constructed in the premises. She stated that the purchase price of N400, 000.00 for the property was paid for in three installments and she made a contribution of N150, 000, 00 to the purchase amount. According to her, her request that a purchase agreement be drawn up showing the joint purchase of the property and receipts for other contributions made by her in respect of the construction of the buildings in the property, was disregarded by the defendant. She was however, able to lay her hands on a few receipts in her custody, though they do not reflect her contribution of about N2, 000, 000 towards the purchase and construction of the property. Claiming further, that the defendant, who had moved out of their matrimonial home in 2014, just before the dissolution of the marriage between the parties, now returns regularly in a bid to evict the claimant and children from the house, in order to sell the building and got the claimant arrested and detained by the police and served her with Seven days’ notice of Owner’s intention to recover possession during her arrest. Consequently, she sought, inter alia, an order of joint ownership of the property, and an order that the property be sold, and the proceeds of the sale divided equally between the parties. On his own part, the defendant’s case inter alia was that the claimant did not contribute to the purchase of the property in issue and was indeed a full time house wife who depended on what he gave to her. He counter claimed for recovery of premises stating that the claimant is a tenant at will thereon. The sole issue for determination in this case was whether from the facts and evidence, the parties were joint owners of the plot of landed property, the three bedroom flat and the uncompleted storey building erected thereon at No 7, Fadama, Biala Estate, Ibadan. The court noted that although, the claim relates to ownership of property between the parties, the question that calls for determination however, transcends mere claim of ownership. It is a question involving the right of a wife as to the matrimonial home, the proprietary interest, the right of occupation during the marriage and the right to the maintenance of children after the dissolution of the marriage. It also noted that it is common ground that, the property was purchased during the subsistence of the marriage under native law and custom,(underlining supplied for emphasis) between the parties and that the parties and their 4 children were living in one of the buildings on the property, while the other one was under construction before the dissolution of the marriage. The court held that where a husband or wife acquires a property by his/ her efforts before the marriage, then the other party cannot lay claim to any share of the property by reason of subsequent marital relationship. Although, the marriage was contracted under customary law, the court stated that where there is a wrong there is a remedy. On grounds of equity, It further held that if a wife claims joint ownership of a property with her husband on the ground(s) that she contributed one way or the other towards erecting a building, though most contributions are not documented; that she paid school fees of the children, and even performed wifely duties such as taking care of the children ( which are unquantifiable in monetary terms), such claim cannot be determined by strict rules of ownership or proof of title, but by equitable principles and the discretion of the court about what is fair, having regard to the interest of the children.In arriving at this conclusion, the court stated that:
…Although, the Married Women Property Act 1881 (which is a Statute of General Application) is not applicable, nonetheless, the principles of the Act can be persuasive guidelines; especially as native law and custom can be applied, if it is not repugnant to natural justice, equity and good conscience. The native law and custom is dynamic; the influence of English legal jurisprudence on rules of customary law, cannot therefore, be ignored. The Act and section 17 of the Married Woman Property Law of Oyo State, 2000 recognise the validity of customary marriages and the rights therein; hence, the court would be guided by the principle of natural justice as enunciated in the Act, when interpreting the provisions of family ownership of property, where fairness is enjoined as guiding the reasoning of the court.
On the basis of the above, the court found that, the claimant established intention to create joint ownership of the property when it was acquired and actual joint ownership of the property, so as to raise a presumption of beneficial interest on her and the children of the marriage. The court therefore, granted the claims of the claimant, declaring joint ownership of the property, and making an order of possession and occupation of the completed three bed-room by the claimant and her children as the matrimonial home, and that the 4 children are entitled as beneficial owners by way of presumption of a resulting trust created by the parties. The uncompleted storey building was ordered to be sold, and the proceeds divided in equal portion, with half of the share to the claimant for the maintenance of the children of the marriage and the other half to the defendant. The court rationalized the findings above on the principle that a husband who divorces a woman who had children for him, but built a house during the subsistence of the marriage, stands the risk of losing that house if she lays a claim to joint ownership unless such a woman leaves the matrimonial home on her own volition. Finally the court dismissed the counter claim of the defendant.
7.0 The Intervention of the concept of Trust
Further relief in the settlement of property can be found in the application of the principle of trust. The application of the former was evident in the English case of Gissing v Gissing, Where the House of Lords upheld the trust principle as creating a legal basis for a just and equitable settlement of property between couples. According to the Lords, the principles on which a matrimonial home, which stands in the name of a husband or wife alone, may nevertheless be held to belong to them jointly(in equal or unequal share) not by virtue of any agreement, express or implied is by virtue of a trust which is imposed by law. The law imputes to the husband or wife an intention to create a trust, the one for the other. According to Lord Denning, it does so by way of an inference from their conduct and the surrounding circumstances, even though the parties themselves made no agreement upon it. He stated further:
… this inference of a trust , the one for the other, is readily drawn when each has made a financial contribution to the purchase price or to the mortgage instalments. The financial contribution maybe direct, as where it is actually stated as a contribution towards the price of the instalments. It maybe indirect, as where both go out to work, and one pays the housekeeping and the other the mortgage instalments. It does not matter who pays what. So long as there is a substantial financial contribution towards the family expenses, it raises the inference of a trust. But where it is insubstantial, no such inference can be drawn…
8.0 Conclusion/ Recommendation
In this, we have seen that extant law on settlement of property is fraught with enormous controversy because of the great reliance on the identification and over dependence on the quantum of financial contribution by either couple to the acquisition of property during the marriage to determine or resolve the question of whether or not a party is subsequently entitled to a share in the event of the dissolution of the marriage. As a result, a wise wife married under any of the existing forms of marriage in Nigeria is advised to keep a comprehensive account of all her contributions, direct or indirect, towards the purchase of property while the marriage subsists in anticipation of the, “rainy day.” It is submitted, that this present legal regime above does not accord with matrimonial unity or oneness which is the essence of marriage. It is therefore, recommended that the present state of the law of settlement in Nigeria be jettisoned by the statutory creation of the concept of Matrimonial property. The term “matrimonial property”, implies property (immovable or movable) acquired by either or both spouses during the subsistence of the marriage other than that acquired by gift, inheritance or bequest, except as otherwise agreed by the spouses. This includes, among other things, spouses’ income, whether derived from earnings or property, and assets that are acquired by means of either spouse's income or gains. However, it excludes personal property (that is, property that is personal in nature, gifts, inheritances and bequests acquired before or during the subsistence of the marriage).It constitutes property that is not only jointly used but also jointly owned by spouses, not necessarily as a result of the financial contributions of each of the spouses to its acquisition, but also as a result of the fact that the property was acquired in matrimony by either or both spouses and was to be used for their benefit as husband and wife. Establishing that property is “matrimonial” in nature is not, therefore, exclusively dependent upon finding a direct financial contribution to the acquisition of the property in question. A spouse's indirect contributions, whether financial or otherwise, to the acquisition of property could possibly give rise to the construction of a beneficial interest in the property, the legal ownership of which is in the name of the other spouse. The statutory creation or recognition of matrimonial property makes it unnecessary for couples to bother about what and what each contributed to the acquisition of the property in question. Once it is established that it was acquired during the marriage, parties become entitled to a share in the property upon divorce. Finally, it is submitted that this approach will better serve the ends of justice, especially on the part of married women under all forms of marriage in Nigeria.
DR. BRIGHT E. ONIHA*
1.0 Introduction
Recently, the Chief Judge of Oyo State, Hon. Justice Munta Abimbola delivered a landmark decision that rekindled the debate over the traditionally volatile issue of settlement of prenuptial and post nuptial property in an ailing or “deceased” marriage in Nigeria. After divorce, the parties to a failed marriage tend to go separate ways. However, several issues that are ancillary to the dissolution or “interment” of the marriage are also thrown up for consideration and determination. They include custody and maintenance of the children and wife of the marriage, as well as the sharing of the property that were acquired during the subsistence of the marriage. In the case of the latter, women are often disadvantaged. The inequality in the sharing of such property is attributable to several factors ranging from economic, social, cultural, religious, political factors. In everyday marriage life in contemporary Nigeria, times have changed; such that it has become very common to find women as the bread winners, real property owners or major contributors to property acquisition in many marriages in Nigeria. In the modern Nigerian family life, upon marriage, couples often pull resources together in the acquisition of property. A very familiar sight is to now see both husband and wife gainfully employed and earning money. In many cases, although the property may be purchased, for instance, in the name of the man, the wife has made substantial contribution either directly or indirectly by deploying her earnings to cover other departments of household expenses so as to free up resources for her husband to buy the property. In such circumstances, the question may be asked, in the event of divorce, to who does the resultant property acquired, belong to? Is such property owned solely by the husband or wife or solely by the person in whose name it is bought, especially where significant contributions have been made by both parties? What about where a woman does not make any financial contribution at all ; but does her part by staying at home to keep it clean, bring up the children, takes care of her husband and carry out other household obligations other than financial contribution. Is she to be excluded from having a share in the property acquired by the man in his name? This paper seeks to interrogate these issues and with the aid of existing statutory and decided judicial authorities attempt to provide answers to some of these questions. It further exposes the limitations of the state of the law of settlement of property in Nigeria upon dissolution of marriage. Finally, it concludes that the law in this area remains unfair, especially to women and patently inconsistent with the spirit of matrimony and oneness of couples. The paper recommends a departure from the present legal regime by way of reform of extant laws regulating marriages in Nigeria. The proposed reform shall inter alia; include specific statutory creation or recognition of matrimonial property in all forms of marriages in Nigeria. It further recommends increased judicial flexibility and activism in this area of the law.
2.0 Property
According to Black’s Law Dictionary, property is the right to possess, use, and enjoy a determinate thing (either a tract of land or a chattel); the right of ownership.
2.1 Types of Property
Property may be classified into various types. For the purpose of this paper, they include the following:
(i) Marital Property
This is property that is acquired during marriage and that is subject to distribution or division at the time of marital dissolution. Generally, it is property acquired after the date of the marriage and before a spouse files for separation or divorce.
(ii) Joint Property
This represents real or personal property held by two or more persons with a right of survivorship.
(iii) Real Property
Real property (also termed real estate) refers, “to land and anything growing on, attached to, or erected on it, excluding anything that may be severed without injury to the land. Real property may be corporeal(soil and buildings) or incorporeal (easements).”
(iv) Dotal and Extra-dotal Property
Dotal property constitutes separate property that the wife brings to the marriage to assist the husband with the marriage expenses. Whilst, extra dotal property is that portion of a wife’s property over which she has complete control
3.0Meaning and Nature of Settlement of Property
Although, the Matrimonial Causes Act (MCA) does not define the term “settlement of property”, sharing of property after divorce in Nigeria also regarded as settlement of property is the transfer or sharing of property of a party that may be jointly owned to or with the other spouse. In the course of marriage, it is common for couples to jointly acquire real or other property for instance as their matrimonial home. They may do so in their individual names or by using both of their names. It may also be that the property may have been acquired by one of the parties, sometimes in his/ her name but with substantial or some form of contribution by the other. Where the marriage fails, some of the disputes that arise with regards to properties usually revolve around who is entitled to keep or dispose of the properties acquired during marriage. This mostly comes as an ancillary relief granted during divorce proceedings.
4.0 Right of a Married Woman to Own Property.
The question of whether there exists a right of married women to hold property in marriage is now one which many now simply answer with, a majestic and emphatic “Of course,” wave of the hand. But historically, this has not always been the case. Let us briefly examine how we got here.
4.1 Under the Common Law
Nigeria is of common law heritage. The common law position in respect of the status of a married woman in relation to property acquired during the pendency of marriage was succinctly stated by Lord Denning MR in his book, The Due Process of Law. According to him, we now know that in the marriage service, it the man that assures the woman that, ‘with all my worldly goods l thee endow,” But the law did the exact opposite. Upon marriage all the woman’s goods and chattels and all her money automatically belonged to the man save for her personal clothing and paraphernalia. If her parents or friends gave her wedding presents… they belonged to the husband. If during the marriage she went out to work, all that she earned belonged automatically to her husband. She had to go on bended knee, whenever she wanted to buy anything even with her own money or her own earning. If she left him, even for good cause, she had no right to any maintenance even out of her own funds. The only remedy which the common law gave to her was that she could pledge his credit for necessaries, but even then she had to find some tradesmen who would supply her- none might be willing to do so. Most tradesmen, however keen they were to do business, also wished to be sure of being paid. They did not wish to be involved in a lawsuit as to whether the wife was entitled to pledge her husband’s credit or not. If they were unwilling to accept the husband’s credit, it was useless for the wife to pledge her own. She had no power to contract on her own behalf, because she was one with her husband and could agree to nothing apart from him. Moreover, she had no property or money with which to honour any contract which she might make. She was in a parlous plight.She was also not entitled to anything in terms of settlement in case of dissolution of her marriage.
4.2 Customary law
In very many African Societies, the legal rights of women generally and married women in particular are smothered by rules of custom, tradition and religious beliefs. However, these customs and traditions are not uniform. They vary from society to society, community to community; often dependent on disparate prevailing customs or usages being reflective mirrors of accepted usage of a particular community. In other words, each community generally has its own system of indigenous customary law. As Chinua Achebe’s wisdom, like a goat skin bag, every one carries his own.Inside the disparity, there is however, unity. Part of the obvious unity can be found in the recognition of limitations in the property rights of women in Nigeria by many communities. Some of these customs have been struck down as obnoxious and barbaric by our courts. Such customs pronounce for instance that the roles of women should largely be confined to the, “other room,” child bearing, tending to these children and the Kitchen. The personality of the African woman collapses into that of her husband upon marriage. She is regarded as a chattel in his house and therefore hardly capable of holding any tangible property of her own. Equality of the sexes is generally alien to most African societies. This perception of inequality naturally transcends into the realm of property rights. What she has, she gives to her husband as her own contribution and is regarded as a gift. In Suberu v Sumonu, the court made this observation that women are treated as chattel to be inherited amongst the legal heirs of her deceased husband. However, under Sharia law, women are permitted to own property.
4.3 Statutes
There has been a significant statutory intervention that confers the right to own property on married women in Nigeria. This right is now embedded in many statutes. As far back as1882; the right to own and dispose property has been statutorily recognized even before the creation of the country, Nigeria.This is by virtue of the received English Married Women Act of 1882, a statute of general application in Nigeria, still made applicable by section 32 (1) of the interpretation Act. In this regard,unlike in the common law past,The Married Women Property Act provides:
A married woman shall, in accordance with the provisions of this Act, be capable of acquiring, holding, and disposing by will or otherwise, of any real or personal property as her separate property, in the same manner as if she were a feme sole, without the intervention of any trustee.
Feme sole, (“single woman”) above refers to a woman who had never been married or who was divorced or widowed or to a woman whose legal subordination to her husband had been invalidated by a trust, a prenuptial agreement, or a judicial decision.
4.4 The Constitution
The Constitution of Nigeria, 1999 guarantees the right of every Nigerian (irrespective of sex) to acquire property. In this regard, section 43 thereof provides as follows, “Subject to the provisions of this Constitution, every citizen of Nigeria shall have the right to acquire and own immovable property anywhere in Nigeria.” The Constitution further prohibits the compulsory acquisition of moveable property or any interest in an immovable property except in the manner and for the purposes prescribed by law. It further provides against discrimination on grounds, inter alia, of sex in section 42(1).
4.5 International Instruments
Several international Instruments either expressly guarantees the right of women generally to acquire property or prohibit all forms of gender discrimination. Some of them include, the African Charter of Human and People’s Rights,Convention on the Elimination of All forms of Discrimination against Women (CEDAW) 1981, Universal Declaration of Human Rights (UDHR)1948. And the International Covenant on Civil and Political Rights (ICCPR)
5.0 Settlement of Property in Nigeria
Settlement of property usually depends on the form of marriage entered into by the parties. Due to the plurality in the Nigeria Legal System, there are different legal principles guiding settlement of properties under different forms of marriage in Nigeria where there are basically, two forms of marriages. They are the Statutory and Customary Marriages. Under the latter genre, there is also the Islamic Marriage which is basicallyembedded under customary marriages. Let us briefly look at them.
5.1. Statutory Marriage:
This form of marriage is contracted under the Marriage Act, a Federal enactment designed for the celebration of a voluntary union between a man and a woman to the exclusion of all others during the continuance of the marriage. Marriage under the Act as it is sometimes referred to, by its nature, is therefore monogamous. It is a union that terminates at the death of either spouse.
5.2. Customary Marriage:
Customary marriage has been defined by Justice A.P. Anyebe as, “... a union of one man and a woman or women to the exclusion of all others…” The Union extends even beyond the life of the man but terminates substantially at the death of the woman. It is essentially a marriage contracted under the various native laws and custom of the various communities in Nigeria. According to Dr. Bright Oniha,( this writer), from the foregoing, it is clear that ample allowance is provided under customary law for the enjoyment of polygamy, given that there is no limit to the number of wives a man can marry under customary law. Although, it must be said, that this fact is a key disincentive to women desirous of exclusive right and possession of their husbands to enter into customary marriages. It is nonetheless, the commonest form of marriage with statutory recognition in the Marriage Act. As has already been alluded to, Islamic marriage is marriage conducted according to the tenets of Islamic law. It is a variant of (non indigenous) customary law marriage, no certificate is issued; it is also not limited to one man and one woman. Indeed, a man can marry as many as four wives provided his is capable of meeting the strict requirements and conditions stipulated under Islamic Law.
5.3 Settlement of Property in Statutory Marriages.
According to M.O.A Ashiru, following the dissolution of marriage in Nigeria, although there are laws allowing either spouse to apply to court for a share of matrimonial assets, it is usually the women that often bring such application, as in most cases the man is in a stronger position in relation to the assets of the deceased marriage. Although, she may have made significant financial contributions and in some cases solely finance the purchase, the legal title may be in the name of her husband, therefore leaving her with the onerous task of establishing her contributions towards the purchase of the properties. This task is made more herculean given the fact that she might not have kept proof of her contribution, such as receipts since she did not anticipate separation or divorce at that time.
In the settlement of property in statutory marriages in Nigeria, two principal Laws are of particular significance. They are the Married Women’ Property Act 1882 which is a Statute of general application, and the Matrimonial Causes Act.
5.3.1 The Married Women Property Act 1882
Section 17 of the Married Women Property Act 1882 allows a husband or wife to bring an application by summons or otherwise in a summary wayto any Judge of the High Court in relation to title or possession of property. The point must be underscored that this provision is a procedural one, which can be used at any time, whether or not a marriage is dissolved, to resolve a question as to title or possession of property. It is not a means of giving title which did not previously exist. In Hine v Hine in interpreting this section, Lord Denning MR stated as follows:
…It seems to me that the jurisdiction of the court over family assets is entirely discretionary. Its discretion transcends all rights, legal or equitable, and enables the court to make such ordersas it thinks fit. This means, as l understand it, that the Court is entitled to make such orders as may be fair and just in all the circumstances of the case.
The above principle was however scuttled by the British House of Lords in Pettitt v Pettitt. Where the Lords declared that section 17 was procedural only. It did not affect the legal rights of either party. In every case, the court has to inquire what are; the legal rights of the parties and give effect to them – without exercising any discretion in the matter. To do otherwise, according to Lord Hodson, “… would be to substitute the uncertain and crooked cord of discretion for the golden and straight metwand of the law.”
However, Efe submits that the Married Women Property Act (WPA) established the doctrine of separate property between spouses. It vested married women with separate ownership rights to property as if they were feme sole [unmarried or a single woman]. This makes it possible for married women to establish claims for ownership whenever there is a dispute concerning property. With the operation of the MWPA, any personal (movable) or real (immovable) property acquired by a woman before or after her marriage is treated as her separate property. According to him, it is germane to emphasize that section 17 thereof does not regulate the redistribution or readjustment of property between spouses on the dissolution of a civil marriage. The primary aim of section 17 in respect of disputed property between spouses is for the court to determine questions regarding the ownership of property between spouses as it think fit. The striking phrase from section 17 of the MWPA is “as he thinks fit”. The opinion has been expressed that this phrase does not give the court the unfettered discretion to redistribute property in accordance with what it deemed just.At divorce in Nigeria, it is common for spouses to rely on the provisions of the MWPA to establish the ownership of property, as was done in Aderounmu v Aderounmu.Whenever there is a property related dispute between spouses, therefore, Nigerian courts interpret the provisions of the MWPA strictly to determine the extent of a spouse's interest in the property of the other spouse.For a spouse to succeed, he or she must prove a direct financial contribution to the purchase or development of the disputed property based on ordinary rules of property law. The courts have held that, where a spouse makes a claim for an interest in property, he or she must provide cogent evidence of a financial contribution to that property. For a spouse to succeed, he or she must prove, on the balance of probability, that he or she is a joint owner of the property in question or that his or her financial contribution was substantial with regard to the purchase or development of the property about which there is a disputed interest. Financial contribution to property is, thus, the only basis for the establishment of an interest in property at divorce. According to the Supreme Court in Amadi v Nwosu,a claimant needs to explain not only the quantity and quality of his or her contributions to the disputed property, but also give details and particulars of the contributions that would enable the court to decide in the claimant's favour.
Similarly, In the light of the above, Efe CJ has rightly argued that as it currently stands in Nigeria, there is no authority to the effect that a spouse's indirect contributions or a wife's domestic contributions to the family's welfare will alone give rise to a claim for a beneficial interest in property acquired in the sole name of the other spouse. He further submitted that, “… the exercise of the court's discretion in relation to the settlement of property has been limited and, to a great extent, has failed to echo the unheard voices of Nigerian women in respect of the financial tragedies that they encounter during marriage and at divorce.’’
Arising from the above, Efe rightly hold the view that, “This leads to the conclusion that, in Nigeria, property rights between married spouses are completely separate. It is argued that the complete separation of property system, which requires a spouse to present “evidence of direct financial contribution to the acquisition or development of the property or an agreement to that effect” in order to substantiate his or her interest in the property, runs contrary to the partnership element of marriage and places the less buoyant spouse (most often the woman) in a disadvantaged position at divorce. A law, fashioned in this light, regards spouses simply as commercial partners, with an obligation to give detailed accounts and keep close records of their transactions with each other.”
5.3.2 Settlement of Property under the Matrimonial Causes Act
Section 72 of the Matrimonial Causes Act provides as follows:
(1) The Court may, in proceedings under this Act, by order, require the parties to the marriage, or either of them, to make, for the benefit…of any of the parties… to the marriage such a settlement of property to which…either of them is entitled… as the court considers just and equitable in the circumstances of the case. (underlining supplied for emphasis)
(2) The Court may… make such order as the Court considers just and equitable with respect to the application for the benefit of all or any of the parties to … the marriage of the whole or part of property dealt with by ante- nuptial settlements on the parties to the marriage, or either of them.
This Act clearly gives the court a discretion in relation to settlement of property by a couple who are married under the Act. The overriding consideration that directs the exercise of the court's jurisdiction is the term “just and equitable”. A property settlement order made pursuant to section 72(1) must therefore satisfy the “just and equitable” requirement in the circumstance of each case.it is noteworthy that the Matrimonial Causes Act (MCA) does not contain any statutory guidelines for the exercise of the court's discretion under section 72, nor does it outline any considerations or criteria that Nigerian courts must follow in making appropriate orders under section 72. Prof. E.I Nwogugu in this regard, states that the main concern of the court in these proceedings should be considerations of justice and equity in respect of the property which may be settled. In the determination of the extent of the property to be settled, the court will consider all the circumstances of the case including the fortunes of the parties and family responsibilities. It is unlikely that a spouse may be ordered to make settlement for the benefit of the parties and their children unless his or her property greatly exceeds that of the other spouse. The court is entirely at liberty within the parameter of justice and equity to determine what interest to vest in either spouse or children of the marriage.
In Akinbuwa v Akinbuwa, the Court of Appeal held as fair, just and equitable the order of the lower court for the settlement of the property of the husband on his wife and children and execution of documents of title in respect of the real property settled in favour of the wife, repair and hand over of the keys to the property in questionto the Registrar of the High Court and to continue to be responsible for the mortgage debt in respect of the property on the dissolution of the marriage. Whilst, in Mueller v Mueller,the property in dispute was adjudged to be jointly owned by the parties, upon dissolution of their marriage. The Court of Appeal shared the property equitably between them.
According to Chinedu Justin Efe,The courts are not enjoined by statute when making a property settlement order to take into consideration a spouse's indirect financial or non-financial contributions to the acquisition of the property. For instance, a spouse cannot rely on his or her domestic contribution to the family, without any further direct financial contribution to the acquisition of property, for a beneficial interest in that property.
A contribution is said to be direct when a spouse makes a direct payment towards the acquisition, mortgage or lease of the property in dispute. An indirect contribution will include a spouse's contribution to the improvement or development of the property in dispute. A spouse's contribution will also be indirect in cases where the spouse undertakes to bear household expenses in order to enable the other spouse to acquire a specific property. In his dissenting judgment in Egunjobi v Egunjobi, Fakoyode JA expressed his opinion as follows:
[i]t seems to me that if a wife foregoes house-keeping allowances from her husband and runs the house at her own expense for a substantial period of time in order to enable her husband save money to buy or acquire some specific property e.g land, house or car, she should be entitled to some beneficial interest in the property even though her contributions to the property are indirect”.
In Dairo v Dairo, the Lagos High Court rejected the ancillary relief sought by the wife in proceedings for the dissolution of her marriage. In that case, the wife's uncontroverted evidence at trial was that both she and her husband had reached an agreement where she spent her income on the maintenance and welfare of the family while the husband spent his on building the matrimonial house. In the absence of proof of a direct financial contribution to the house, the court ignored the wife's claim for a share in the house.
In Okere v Akaluka, the Court of Appeal's judgment, held that the plaintiff (the wife) was entitled to 50 per cent of the proceeds from the sale of the house in dispute, on the basis of the fact that the wife had made substantial contributions to the acquisition of the disputed property.
In making the specific settlement orders, Ashiru, stated that under this provision, Judges in Nigeria seem to prefer making a lump or periodic payment orders. For instance,in Manakaye v Manakaye,where, although the husband had landed properties and investments worth millions in Nigeria, the court awarded the wife a lump sum payment. But this is not to say that the Courts do not grant proprietary rights to parties at all. For instance, in Kafi v Kafi, the High Court exercised its powers under section 72 of the Matrimonial Causes Act in making an order that the property be settled by deed. However, according to Efe, in this regard, a careful perusal of some of the provisions of section 73 of the MCA reveals, that, but for the provision of section 73(1)(j), Nigerian courts could interpret section 72 (settlement of property) as being capable of transferring ownership. For instance, in making a property settlement order under section 72, the court is empowered to order the execution of any necessary deed or instrument of title or the production of a document of title, among other things, in order to carry out a property settlement order effectively. Where a person who is mandated by the court to execute such a deed or an instrument of title in favour of a spouse fails or neglects to do so, an officer of the court may be appointed to do the same. It is also noteworthy that the execution of the deed or instrument by the person so appointed shall have the same force and validity as if it has been executed by the person directed by the order to execute it. The Matrimonial Causes Act further provides that where a deed or instrument is executed pursuant to the section, the court may make such order as it thinks just as to payment of the costs and expenses of and incidental to the preparation and execution of the deed or instrument. By section 72 thereof, the court is also empowered to make a permanent order in respect of section 72 of the MCA.
6.0 Settlement of Property under Customary Marriage
Generally, customary law is not uniform. Under the customary law many communities however; both the man and the woman can acquire property either before or during the marriage. The woman is not barred from holding or acquiring her own property and is entitled to same upon dissolution of marriage. Also when the man acquires a property, he has sole interest or right over the property. When a marriage under the customary law is being dissolved, the woman under some customs has no right to claim for settlement of property even if she contributes to the acquisition of such property. She cannot through a court order compel her husband share the property with her.In this regard, Justice O’ Connell Ogbonna, President of the Customary Court of Appeal, Ebonyi State stated that settlement of property is in theory an available relief under the customary divorce legal regime but in practice, it is non-existent. The reason being that within the Southern part of Nigeria especially, among the Igbos, wives are strictly considered among the properties/possessions or chattels of the husband. This being the case, whatever a woman may claim to have acquired in terms of property are in stricto sensu the husband’s property by extension. Hence, upon customary divorce, it is difficult to lawfully establish anything as belonging to the wife. However, most men in the exercise of equitable discretion allow their divorced wife to take out with them all such things like cloths and personal gifts with which they came with into the marriage. Others extend this to those properties given to the woman by her beloved family by way of settlement (iduuno) when she got married. Most assets, even where they were single or jointly acquired are not conceded to the woman except by the man’s ‘charity’. In this way, settlement of property under the customary law becomes a discretionary relief to be granted by the man as he pleases. This conclusion is of course without prejudice to any decision the customary court may find contingent and pragmatic due regards being had to the circumstance of each case.
Along similar lines, Justice John Bayo Olowosegun,stated that the Area or Customary Court by which a customary marriage is dissolved may also determine the ownership of any property claimed by either of the parties. For instance, In Benue State, paragraph 14 of the Declaration of ldoma Native Marriage law and Custom Order 1985 provides as follows: “The court shall determine the ownership of any property claimed by both parties in accordance with local custom”.
For those items of property acquired by the woman before the marriage and brought into the matrimonial home there may not be any problem. For those acquired while in her matrimonial home however, some controversy may arise as in most Africa traditional settings, the average man would not understand why a woman he also sees as part of his personal estate should be entitled to any property at all of her own.
It must be noted that any custom that encourages servitude or turns a wife into a chattel in contemporary Nigeria will almost invariably, fail to meet the standard of justice or the repugnancy test and right of all citizens to property as guaranteed under section 43 of the Constitution of the Federal Republic of Nigeria 1999 against which the efficacy of every law, including rules of customs must be tested. According to him, the court should at all times make orders as to ensure the security of a woman’s personal property acquired or money earned before marriage and the fair distribution of property acquired by joint efforts of herself and her husband during the subsistence of the marriage. This should also include absolute gifts made to her even by her husband before or during the life of the marriage, so that the under privileged spouse may not be rendered empty handed from a home she has contributed immeasurably to build.
6.1. Settlement of property under Customary Law and the Case of Toyin Arajulu v James Monday
In the jurisprudence of settlement of property in a customary marriage, the recent landmark case of decided by the High Court of Oyo State of ToyinArajulu ( formerly known as Toyin James) v James Mondayis worthy of special consideration. This case in effect has charted a new course in settlement of property under customary marriages. Here, the couples were married under customary law in 1997. They had 4 children who were still minors at the time the action was instituted. The marriage was later dissolved by an order of a Grade “C” Customary Court at the instance of the defendant. The claimant subsequently instituted an action claiming that during their marriage, parties contributed to jointly build a two flat building in 2004. This building, which was under construction, was, however, sold by the defendant in 2006 without her knowledge. She further alleged that in 2012, she jointly purchased another property with the defendant, being a plot of land at No 7, Fadama, Biala Estate, Olodo for the purpose of erecting a residential building. This building was completed and inhabited by the family, while another building was being constructed in the premises. She stated that the purchase price of N400, 000.00 for the property was paid for in three installments and she made a contribution of N150, 000, 00 to the purchase amount. According to her, her request that a purchase agreement be drawn up showing the joint purchase of the property and receipts for other contributions made by her in respect of the construction of the buildings in the property, was disregarded by the defendant. She was however, able to lay her hands on a few receipts in her custody, though they do not reflect her contribution of about N2, 000, 000 towards the purchase and construction of the property. Claiming further, that the defendant, who had moved out of their matrimonial home in 2014, just before the dissolution of the marriage between the parties, now returns regularly in a bid to evict the claimant and children from the house, in order to sell the building and got the claimant arrested and detained by the police and served her with Seven days’ notice of Owner’s intention to recover possession during her arrest. Consequently, she sought, inter alia, an order of joint ownership of the property, and an order that the property be sold, and the proceeds of the sale divided equally between the parties. On his own part, the defendant’s case inter alia was that the claimant did not contribute to the purchase of the property in issue and was indeed a full time house wife who depended on what he gave to her. He counter claimed for recovery of premises stating that the claimant is a tenant at will thereon. The sole issue for determination in this case was whether from the facts and evidence, the parties were joint owners of the plot of landed property, the three bedroom flat and the uncompleted storey building erected thereon at No 7, Fadama, Biala Estate, Ibadan. The court noted that although, the claim relates to ownership of property between the parties, the question that calls for determination however, transcends mere claim of ownership. It is a question involving the right of a wife as to the matrimonial home, the proprietary interest, the right of occupation during the marriage and the right to the maintenance of children after the dissolution of the marriage. It also noted that it is common ground that, the property was purchased during the subsistence of the marriage under native law and custom,(underlining supplied for emphasis) between the parties and that the parties and their 4 children were living in one of the buildings on the property, while the other one was under construction before the dissolution of the marriage. The court held that where a husband or wife acquires a property by his/ her efforts before the marriage, then the other party cannot lay claim to any share of the property by reason of subsequent marital relationship. Although, the marriage was contracted under customary law, the court stated that where there is a wrong there is a remedy. On grounds of equity, It further held that if a wife claims joint ownership of a property with her husband on the ground(s) that she contributed one way or the other towards erecting a building, though most contributions are not documented; that she paid school fees of the children, and even performed wifely duties such as taking care of the children ( which are unquantifiable in monetary terms), such claim cannot be determined by strict rules of ownership or proof of title, but by equitable principles and the discretion of the court about what is fair, having regard to the interest of the children.In arriving at this conclusion, the court stated that:
…Although, the Married Women Property Act 1881 (which is a Statute of General Application) is not applicable, nonetheless, the principles of the Act can be persuasive guidelines; especially as native law and custom can be applied, if it is not repugnant to natural justice, equity and good conscience. The native law and custom is dynamic; the influence of English legal jurisprudence on rules of customary law, cannot therefore, be ignored. The Act and section 17 of the Married Woman Property Law of Oyo State, 2000 recognise the validity of customary marriages and the rights therein; hence, the court would be guided by the principle of natural justice as enunciated in the Act, when interpreting the provisions of family ownership of property, where fairness is enjoined as guiding the reasoning of the court.
On the basis of the above, the court found that, the claimant established intention to create joint ownership of the property when it was acquired and actual joint ownership of the property, so as to raise a presumption of beneficial interest on her and the children of the marriage. The court therefore, granted the claims of the claimant, declaring joint ownership of the property, and making an order of possession and occupation of the completed three bed-room by the claimant and her children as the matrimonial home, and that the 4 children are entitled as beneficial owners by way of presumption of a resulting trust created by the parties. The uncompleted storey building was ordered to be sold, and the proceeds divided in equal portion, with half of the share to the claimant for the maintenance of the children of the marriage and the other half to the defendant. The court rationalized the findings above on the principle that a husband who divorces a woman who had children for him, but built a house during the subsistence of the marriage, stands the risk of losing that house if she lays a claim to joint ownership unless such a woman leaves the matrimonial home on her own volition. Finally the court dismissed the counter claim of the defendant.
7.0 The Intervention of the concept of Trust
Further relief in the settlement of property can be found in the application of the principle of trust. The application of the former was evident in the English case of Gissing v Gissing, Where the House of Lords upheld the trust principle as creating a legal basis for a just and equitable settlement of property between couples. According to the Lords, the principles on which a matrimonial home, which stands in the name of a husband or wife alone, may nevertheless be held to belong to them jointly(in equal or unequal share) not by virtue of any agreement, express or implied is by virtue of a trust which is imposed by law. The law imputes to the husband or wife an intention to create a trust, the one for the other. According to Lord Denning, it does so by way of an inference from their conduct and the surrounding circumstances, even though the parties themselves made no agreement upon it. He stated further:
… this inference of a trust , the one for the other, is readily drawn when each has made a financial contribution to the purchase price or to the mortgage instalments. The financial contribution maybe direct, as where it is actually stated as a contribution towards the price of the instalments. It maybe indirect, as where both go out to work, and one pays the housekeeping and the other the mortgage instalments. It does not matter who pays what. So long as there is a substantial financial contribution towards the family expenses, it raises the inference of a trust. But where it is insubstantial, no such inference can be drawn…
8.0 Conclusion/ Recommendation
In this, we have seen that extant law on settlement of property is fraught with enormous controversy because of the great reliance on the identification and over dependence on the quantum of financial contribution by either couple to the acquisition of property during the marriage to determine or resolve the question of whether or not a party is subsequently entitled to a share in the event of the dissolution of the marriage. As a result, a wise wife married under any of the existing forms of marriage in Nigeria is advised to keep a comprehensive account of all her contributions, direct or indirect, towards the purchase of property while the marriage subsists in anticipation of the, “rainy day.” It is submitted, that this present legal regime above does not accord with matrimonial unity or oneness which is the essence of marriage. It is therefore, recommended that the present state of the law of settlement in Nigeria be jettisoned by the statutory creation of the concept of Matrimonial property. The term “matrimonial property”, implies property (immovable or movable) acquired by either or both spouses during the subsistence of the marriage other than that acquired by gift, inheritance or bequest, except as otherwise agreed by the spouses. This includes, among other things, spouses’ income, whether derived from earnings or property, and assets that are acquired by means of either spouse's income or gains. However, it excludes personal property (that is, property that is personal in nature, gifts, inheritances and bequests acquired before or during the subsistence of the marriage).It constitutes property that is not only jointly used but also jointly owned by spouses, not necessarily as a result of the financial contributions of each of the spouses to its acquisition, but also as a result of the fact that the property was acquired in matrimony by either or both spouses and was to be used for their benefit as husband and wife. Establishing that property is “matrimonial” in nature is not, therefore, exclusively dependent upon finding a direct financial contribution to the acquisition of the property in question. A spouse's indirect contributions, whether financial or otherwise, to the acquisition of property could possibly give rise to the construction of a beneficial interest in the property, the legal ownership of which is in the name of the other spouse. The statutory creation or recognition of matrimonial property makes it unnecessary for couples to bother about what and what each contributed to the acquisition of the property in question. Once it is established that it was acquired during the marriage, parties become entitled to a share in the property upon divorce. Finally, it is submitted that this approach will better serve the ends of justice, especially on the part of married women under all forms of marriage in Nigeria.
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