THE STATUTORY AMBIT OF THE EQUITY JURISDICTION

In divorce situations, section 72(1) of the Matrimonial Causes Act 1970Footnote ¹¹ (MCA) applies. It provides:

In non-divorce situations, the determination of property rights for married persons can come under section 17 of the Married Women's Property Act 1882.Footnote ¹³ The key elements of this provision are that:

It is observable that, in relation to property, the MCA provisions cover property both jointly and separately owned by the parties. Again, properties covered by both pre-nuptial and post-nuptial settlements are included, as the court should have the power to evaluate the arrangement and order a resettlement of already settled property. It appears that the “settlement” includes arrangements effected by third parties on the parties to the marriage, as well as those by one party on the other. Thus the sub-section is principally intended to bring all properties to which the parties may be entitled, either jointly or separately, within the court's equity jurisdiction. The tenor of the section indicates that even properties covered by a prenuptial agreement can be called into the court's jurisdiction.Footnote ¹⁴ It is significant that the court's discretion and equity (fairness) jurisdiction under the statutes is wide. In Acquah v Acquah Footnote ¹⁵ it was held that the court can exercise the powers under section 72 on its own motion. In Kafi v Kafi Footnote ¹⁶ it was held that “the main limitation in making [a section 72] order must be ‘as the court considers just and equitable’”.Footnote ¹⁷ As to the scope, intention or objective of section 72, Nwogugu, citing Cartwright v Cartwright,Footnote ¹⁸ explains that an order under the section will relate to the whole or part of the property involved and that the court is empowered to enable it to make proper provisions for the spouses and their children.Footnote ¹⁹ Thus, the court's order in Kafi in favour of the wife was “for her benefit and that of her children”.Footnote ²⁰ In other words, the result of any exercise should be benefit-oriented. The corollary is that it should be needs-based, as in cases of maintenance. All said, the court's powers under section 72 cannot be limited, save as provided under the section itself.

Given this, the ambit of the court's discretion is absolute and the range of the parties’ properties over which the court can exercise its jurisdiction seems unlimited. The consequence should be that the jurisdiction should focus on the readjustment of proprietary interests and nothing else. Therefore, between the parties alone, there is no basis for the court to adjudicate over titular rights, unless such an exercise is necessary to ascertain or determine the extent of, or title quality, of the parties’ assets. Title determination in general court business is necessary when litigants dispute the ownership of property. This is not the case under section 72. Indeed, the section applies regardless of where title lies. The important element is that the property does not belong to a third party. Thus, the court's obligation should be limited to readjustment unless there is no basis for doing so (such as where the court concludes that the distribution of interests or concessions made by the parties is already equitable). The implication of this position is that all property belonging to the parties is to be regarded as marital, a result that the court may then choose to readjust.Footnote ²¹ As noted above, the purpose of the readjustment is to be fair to all parties in the family. As noted above, where the court estimates that the demarcation or distribution of interests is fair, there will be no basis for it to exercise any discretion to readjust further.

Conversely, where the court's exercise of this jurisdiction focuses on making a finding as to who, between the parties, has title to a particular property so as to declare exclusive ownership on that party, the court's discretion will be fettered. Such an exercise would also run counter to the welfare (benefit) principle that supports the jurisdiction. First, that property would be excluded from the court's adjustive jurisdiction, thereby reducing the range of property that the court can readjust. This would be against the express provisions of the section. Secondly, the exercise may prevent the benefit that the other party, as well as the children of the marriage, should procure from a proper exercise of an adjustive jurisdiction. It is interesting that the court's jurisdiction can be exercised in favour of children of the marriage, both below and above the age of 21.Footnote ²² In the latter case, the court exercises its jurisdiction where it agrees that there are “special circumstances” justifying or warranting it. In Nigeria such special circumstances abound, including special-care children (health-challenged, physically and intellectually disabled) as well as dependent children in tertiary schools who are above the age of 21. This may be because there is no social welfare code in any part of the country for these categories. Indeed, many normal children are not functionally emancipated from parental support until after this age. Furthermore, the usual expectation of family members is that, in family relations, property obtained by any member of the family during a marriage is neither separately nor even jointly owned (in the legal sense). It is generally regarded as “communal” and all should benefit from it.Footnote ²³ Therefore, any other exercise of jurisdiction under the section that fails to focus on readjustment will be against the clear provisions of the section and may truncate the basic premises of marital and family relations in Nigeria.

In non-divorce situations, disputes as to title can only arise regarding property acquired during the currency of a marriage. Properties acquired before marriage cannot be the subject of rancour because title is clearly defined.Footnote ²⁴ This will particularly be the case where the properties have been kept separate and not mixed with those acquired during the marriage. The provisions impliedly recognize that marital relations could distort the demarcation of proprietary interests in assets acquired during the marriage. This reality should impose a matrimonial property regime on the parties, leaving the court with only an adjustive jurisdiction upon marital breakdown or divorce.

The arrangement under the statutes should provide an institutional refuge for either spouse of a broken-down marriage as well as the children of the marriage. Unfortunately, the court generally conducts a title determining exercise to the disadvantage of the woman, who may already be tied down by African cultural precepts of marital relations and the acquisition of interests in property.

THE APPROACH OF THE COURTS: A MARRIAGE-DEFEATIST DEFINITION

Nigerian courts have generally failed to appreciate the extent of the statutory discretion accorded to them. Instead of an adjustive jurisdiction, the court usually proceeds to locate title using evidence-based tools, principally legal or formal title, but also the adversarial technicalities of pleadings and proof. With regard to title, whoever has legal title for which there is documentary evidence retains separate ownership. The courts treat property over which there is formal title as if it were excluded from the court's adjustive jurisdiction, even in divorce situations. Often, the parties may have acquired just one piece of vacant land or land with a building that may have served as the matrimonial home. For the woman generally, such title location is a socio-cultural and legal quagmire, as the exercise is carried out without considering the cultural principles underpinning marital relations in Nigeria. This approach is qualified where there is documentary evidence that the parties pooled resources to acquire the land or erect the house. Again the same factors generally make proving this a herculean task for the woman. At the very least, this is a defeatist definition in terms of the cultural forces underpinning marriage, and defeatist of the equity objective of the jurisdiction.

In the decisions below there was a total failure of equity, as the properties involved were excluded from readjustment since, in accordance with the court's definition, they were separately owned.

In Nwanya v Nwanya Footnote ²⁵ the respondent wife claimed that she had contributed ₦6,000 to the building of a house that was in her husband's name. Her claim was dismissed as she was unable to substantiate it. On the vital issue of evidence, Olatawura JCA said, “[i]f … the respondent has given a lump sum of ₦6,000 or any sum to her husband, she should have led evidence in support. If she bought building materials and gave them to her husband, she was duty bound to lead evidence in support. If her monetary contribution was by way of cheque, evidence ought to have been led also”.Footnote ²⁶

In Amadi v Nwosu Footnote ²⁷ the appellant's husband sold his house that served as the matrimonial home and moved to another part of the city. The appellant refused to vacate possession and the respondent purchaser sued her for declaration of title, damages for trespass and an injunction. The appellant could not provide evidence to support her contention that she had an interest in the house. She merely said that she paid for labour and sand and made no effort to substantiate her testimony; under cross-examination she testified that she did not know when the house was built. Her husband testified that she was not earning money when he built the house and his testimony that he built the house without any contribution from his wife was not challenged in cross-examination. The Supreme Court dismissed the appellant's claim. Kutigi JSC stated:

In Akinboni v Akinboni Footnote ²⁹ the document of title to the matrimonial home was in the name of the petitioner husband. The respondent alleged in her cross-petition, upon which she gave evidence, that both parties owned the property jointly. She stated that she allowed the petitioner to obtain the title deed in his sole name to enable him to obtain a housing loan from his employers, who would not accept jointly owned property. There was no specific or express prayer that the building be partitioned or sold and the proceeds shared. Despite this, the High Court ordered the partition of the property. The Court of Appeal indicated that it was willing to treat matrimonial causes liberally, but allowed the technical rules to prevail in this case. It reasoned that,

Applying section 132 of the Evidence ActFootnote ³¹ and without even alluding to section 72 of the MCA, it held that the trial court was in error when it accepted the respondent's oral testimony, which operated to vary what the court and the parties had accepted to be the contents of documents of title to the matrimonial home. Denying the respondent any proprietary interest in the property, the court gave her and the four children of the marriage (whose custody was given to the respondent) only a right to reside on the property during their good behaviour and restrained the appellant from selling or disposing of the property during such residence.

The property in dispute in Essien v Essien Footnote ³² was in the sole name of the respondent husband. The appellant wife's petition for dissolution ran concurrently with his suit. The divorce petition was concluded earlier than the husband's suit and declared that the parties were joint owners of the disputed property. The wife sought to introduce that judgment in her husband's suit as estoppel regarding the issue of ownership of the disputed property. She argued that her husband collected her salary as part of her contribution to the building and that her father provided lodging for the parties whenever they were in town where the building was situated. The trial court discounted the divorce judgment and held that the respondent was the sole owner of the property. The Court of Appeal held that the issue of estoppel could not arise since it had not been specifically pleaded. It further held that the trial court was right not to have inferred joint ownership of the property in issue in favour of the plaintiff / appellant, since the requirement that a direct financial contribution to the purchase price of the matrimonial home or to the repayment of the mortgage instalments in respect of it was necessary before a joint interest could be inferred.Footnote ³³

The formalistic attitude in these cases was to the disadvantage of the woman, who is often the party that applies to the court for readjustment.Footnote ³⁴ This is a reality generally faced by African women due to cultural forces, a reality that the courts obviously ignore.

MARRIAGE AND PROPERTY ACQUISITION IN NIGERIA: WHAT THE JUDGMENTS IGNORE

These judgments ignore the reality that the matrix of cultural marital norms and values foster a strong female deference to men. That, in addition to a patriarchal system of property ownership and succession in Nigeria,Footnote ³⁵ as in many parts of Africa, means that most lands will invariably be acquired in the man's name as the legal title holder or inherited through the man. Actual or symbolic virilocal or patrilocal marriage patterns mean that a woman does not generally receive land from her natal family. This is despite the separate property model facilitated by statutes and functionally practised by some localities, including the Binis in mid-western Nigeria. The cultural principle is that her proprietary interests and welfare will be catered for through her husband and among his people. As Manji points out, a natal family grant will raise the prospect of interference in family land by a different family.Footnote ³⁶ Even where a woman receives some grant from her natal family, her right is usually a usufruct.Footnote ³⁷ Where it is titular, “distance usually prevents her from claiming it or from exercising control over it as her responsibilities to her husband's land” (and family) prevail.Footnote ³⁸ This is true even if the marriage is indeed neolocal, as is common due to urban migration. One thesis offered by Mukund is that women's property rights are “determined primarily by values and norms which are socially acceptable, as well as the mechanisms of intra-household decision making and distribution”.Footnote ³⁹ She is of the view that economic theory cannot explain these forces and dynamics. It can be said that this view is also very important when the dynamics are cultural.

Women in Nigeria have always been economically active.Footnote ⁴⁰ Their work and dexterity provide income and food for the family. Today more and more women are educatedFootnote ⁴¹ and many are in waged employment.Footnote ⁴² Added to this are those in governance and decision-making positions.Footnote ⁴³ Many others exercise independent entrepreneurial prowess to the economic benefit of their male-folk and children.Footnote ⁴⁴ Yet, in Nigeria it is normal for a woman to have little control over the income she generates. The patriarchal cultural psyche influences her attitude to money and property.Footnote ⁴⁵ Generally, the husband controls the distribution and expenditure of family income. It is socio-culturally awkward for a married woman to acquire separate landed property (such as by purchase in the open market). This is not because she is not free to do so.Footnote ⁴⁶ Indeed, Okeke indicates that, in the pre-colonial period, Nigerian women seem to have enjoyed some social autonomy in the form of control in both domestic and public domains.Footnote ⁴⁷ Therefore, coverture was never an absolute rule.Footnote ⁴⁸ Robertson, however, notes that women's “relationship with men appears to have largely mediated their social status as a collective”.Footnote ⁴⁹ This tie and its ramifications seem not to have changed much; “social boundaries and expectations women must adhere to” significantly mediate such freedom.Footnote ⁵⁰ Thus, as in some parts of India, even if the woman is the formal legal owner, the tendency is for the management of land to be taken over by, or handed to, the man.Footnote ⁵¹ Even where she provides the entire income, with few exceptions she is content to have land (including cars and other costly household items) purchased by the husband in his name. She is proud to project her husband as a capable breadwinner and as one who achieves, even when she supports those achievements financially. Some exceptions, also dictated by cultural norms, that she purchases in her own name include items of clothing and jewellery. This attitude is general, unaffected by educational or other social status, and is seen in both rural and urban zones of the country. A woman who behaves otherwise may be inviting reprisals from her kinship and she cherishes the approval of kinsmen and women. Ironically, wives in elitist families (such as titled families) are worse-hit as they must provide a “good” example for other women. This pattern intersects with and is supported by a sometimes distorted perception of religious tenets that ordinarily encourage wifely relative subjection to the man; and religious fervour is strong. For the same cultural reasons, the wife will not usually have the panoply of documentary evidence to show the internal family arrangements and negotiations regarding how property was purchased or income was generated or spent. Consequently, her use of land is generally non-titular, informal and secondary as a feme covert [married woman].Footnote ⁵²

Arinze-Umobi criticises the courts’ approach of importing common law principles of property law into matrimonial relationships, on the basis of section 72 of the MCA.Footnote ⁵³ She regards as absurd, negative, discriminatory and anti-matrimonialFootnote ⁵⁴ the rule that participation in the acquisition of matrimonial property has become “the only platform and qualification for distribution of marital property upon divorce”.Footnote ⁵⁵ She argues that fairness requires that “invisible and indirect” factors must be considered alongside the parties’ living standards before the marriage breakdown, the parties’ age and market potential, and any physical or mental disability of either of the parties.Footnote ⁵⁶ In questioning the fairness of the courts’ decisions, Emeke shares the same views regarding invisible contributions.Footnote ⁵⁷ Furthermore, she recognizes the significance of marriage as a special type of partnership based on equality of the parties, not a business or commercial enterprise where financial contributions would form the basis of sharing at the dissolution of the marital partnership.Footnote ⁵⁸ While these interpretations and suggestions are important, they focus on enlarging and liberalizing the meaning of “contribution” in the acquisition of property. They hinge on factors to be considered in the actual exercise of discretion, rather than the characterization of matrimonial property. As some other decisions show,Footnote ⁵⁹ the true rule is that “invisible and indirect contributions” are sometimes considered, as much as direct and financial ones, but only as factors in quantifying contributions. In such cases, where the court considers the contribution (whether financial or otherwise) as insignificant, baseless or unproved, it will not regard it as a contribution and will not infer joint property.

Uzodike recognizes the failure of equity under section 72, a provision that should guard against financial uncertainty and secure a permanent home for any children of a marriage, but hinges the failure on the inability of Nigerian family law to develop a distinct concept of marital property.Footnote ⁶⁰ Even though this goes to characterization, a “distinct concept” thrives on the assumption that property remains the same in value at all times: once matrimonial property, always matrimonial property. Such a system would require an objective list of what is to be regarded as matrimonial property or an objective basis for determining whether, by its nature and characteristics, a particular item should be regarded as “property” and not necessarily as “matrimonial property”. This was the problem that faced state legislators in the United States of America. With the divorce revolution of the 1970s and 80s, states adopted equal distribution statutes that recognized the theory of marriage as an “economic partnership” and promoted the “community property ideal”. Yet these failed to “alleviate economic inequality between spouses post-divorce”.Footnote ⁶¹ A major factor in this failure was the assumption by the court of the need to circumscribe and demarcate “property”. The courts distinguished between marital property on the one hand and non-liquid assets (such as professional degrees) and “career assets”Footnote ⁶² on the other. These last two were not regarded as marital property and the statutes became desultory. The recognition of these items as “property” in more recent times has been gradual and piecemeal.Footnote ⁶³ In addition, the question of the characterization of individual items is fluid. What is regarded as viable property today may not continue to be in the future. Promising farmland may become worthless to the parties as matrimonial property if it is eroded by floods and becomes a gully, as happens in some parts of the country. A building in a choice area may reduce drastically in value if a noisy factory or poultry farm is sited close to it. A beautiful car may turn out to have little value at the time of marital breakdown if its spare parts can no longer be found in the market. Therefore, the author takes the view that the question of identifying what qualifies as property should be left to the internal determination of the parties. Even though Nweze has endeavoured to defend some of these decisions, particularly Onwuchekwa and Amadi v Nwosu, as being correct, this has only been done along the lines of legal technicalities of the adversarial system. According to him, they accord with strict fidelity to binding authorities, the discharge of the burden of proof and rules of pleading.Footnote ⁶⁴

CURING THE DEFECT: EMPHASIZING THE NEED FOR A MANDATORY MARRIAGE-CENTRED DEFINITION

In the author's opinion, the statutes are problematic because they do not expressly and specifically define and emphasise “matrimonial” property as such. Furthermore, the courts generally fail to recognize the implicit matrimonial property undertones of the provisions, not the fact that they favour men.Footnote ⁶⁵ These flaws have created an intermediate definitional jurisdiction in favour of the courts. Three lessons can be drawn from the cases. First, where there is a document of title in favour of one party to the marriage, that property is excluded from being matrimonial property. Secondly, where a party insists that the property is jointly owned, that party is responsible for producing evidence that both parties contributed adequately to its acquisition, whether financially or otherwise. Thirdly, oral evidence, even about the parties’ private arrangements, cannot be allowed to contradict the contents of documents of title. As the cases show, these complications have blurred the perceived ideal of matrimonial property. Following the path taken by the courts, the parties seem to be focused on showing the existence of joint ownership instead of matrimonial property. The solutions proffered by scholars to this conundrum include: recognition of the special relationship that marriage engenders with the implication that “intangible or invisible contributions” should be recognized;Footnote ⁶⁶ consideration of the parties’ living standards, age and market (remarriage) potential in making readjustment orders; and the development of a distinct concept of matrimonial property. These suggestions are germane, but they do not get to the root of the problem. A mandatory marriage-based definition of matrimonial property will subsume them.

When a party is endeavouring to show joint ownership, it is simply asking that property be shared using a formula. A core objective of that sharing jurisdiction is to benefit parties and their children. In Nigeria this is the socio-cultural expectation of family members. Nigerians do not generally think in terms of separate or joint ownership in marriage. They see properties acquired during marriage from a communal perspective. This was recognized more than four decades ago in Egunjobi v Egunjobi.Footnote ⁶⁷ In this case, the husband acquired a parcel of land and bought some building materials before he married his wife. The wife's proved contribution was the supervision of the building and ₦1,170 in cash. There was no evidence of what the building cost. The majority of the Western State Court of Appeal held that the wife was entitled to one-third of the building. Of note, Akinkugbe JCA who read the majority judgment said: “there is no doubt that when the respondent was making her contributions to the building of the property it was never in contemplation of either side that one day they would have to fight out their respective rights in law courts. There is no doubt that the appellant and respondent believed that each of them had beneficial interest in the house”.Footnote ⁶⁸

This policy of benefitting and making financial and other welfare provisions for at least the immediate family members is evident in the similar jurisdiction of testate and intestate succession under the general law. It is exemplified not only in the standardized sharing formula of an intestate's estate, but particularly in the remedial scheme under succession laws of various states, where insufficient provision has been made for a “dependent” survivor of a testate or intestate individual.Footnote ⁶⁹ One rationale that should make the policy behind that type of remedial dispensation a general legal property readjustment policy is the well-founded belief that the value of properties owned by married couples (even if acquired before marriage) is usually affected by the interplay of the forces of matrimony. The important point was admitted in Kafi v Kafi Footnote ⁷⁰ that the development (and increase of value) of properties and the business successes of parties to a marriage would usually be achieved by their joint efforts, which may not necessarily be quantifiable in monetary terms. The respondent / cross petitioner in this case prayed for settlement of a choice property on her, and financial support for herself and the children of the marriage whose custody she also requested on the basis of her contributions towards the properties. She claimed to have managed part of the family business while the petitioner was establishing another branch in Lagos, performed her domestic duties as a wife, caring for and feeding all the company's customers who came from within and without Nigeria, purchasing building materials, supervising workmen on site, especially when the petitioner was away on business, preparing food for workers and fetching water for them. The Court of Appeal upheld the trial courts’ order settling the property on her on the basis that the only limitation to making such an order under section 72 of the MCA would be the statutory discretion under the act.Footnote ⁷¹

On this basis, a true prescription of matrimonial property can only be made by reference to marriage. The theoretical foundation of such a definition can only be the legal, social and cultural significance of marriage in the African context. The result will be that all property acquired by the parties or any of them during the subsistence of the marriage should be regarded as matrimonial property. The Court of Appeal has hinted at the possibility of such a definition. In Mueller v Mueller Footnote ⁷² there were three houses and one undeveloped plot on the parties’ land. The trial court awarded two of the houses as well as the undeveloped plot to the respondent. It also ordered a partition of the matrimonial home as jointly owned property. The appellant maintained that the property in dispute, which was purchased in her name, was her personal property that she had acquired during the marriage. Her evidence was the purchase receipts and title documents that were in her name. The respondent claimed the property was a joint family property for which he provided most of the finance while the appellant supervised the construction jobs, and he sought an equal partition of the property. The respondent's evidence included a statement of the vendor of the property that he dealt with the appellant who paid the purchase price as a married woman. He also relied on some receipts and letters in which the appellant acknowledged the receipts of sums from the respondent. The Court of Appeal commendably reasoned that, because the property was acquired during the marriage, it was matrimonial property:

It would have been helpful if the judgment had come from the Supreme Court as, being later in time, it would have overridden earlier judgments to the contrary. It is a positive indicator that in Nigeria the socio-cultural expectation is that marriage and marital assets are never divorced. Such an approach is also found in the Rules on Divorce Law under the Swiss Civil Code for the regime of pensions. According to Schwenzer: