Adeleke Adejumo v. Mrs. Toyin Adejumo (2010) – CA


Adeleke Adejumo v. Mrs. Toyin Adejumo (2010) – CA

by “PipAr” B.C. Chima

Court of Appeal – CA/A/168/08

10th day of June, 2010

Maintenance by husband

Maintenance means the provision made by a man for a woman who was formerly his wife. See Hayes v. Haves (2000) 3 NWLR Pt. 648 page 276 at 293-294. Maintenance is intended to provide for the needs of the wife and not to mark disapproval of the husband’s conduct. However the misconduct of the wife may be treated as relevant to her claim for maintenance in certain circumstances. — A. Aboki, JCA.

A husband has a duty under the common law to maintain his wife and his children. It is the right of the wife and the child to demand that they be so maintained. Where a husband neglects to discharge his responsibility of maintaining his wife and children he can be compelled by law. The duty to provide maintenance entails the provision of food (balanced diet), clean water, clothing and shelter by the husband. A man who discharges this duty efficiently acquires for himself the title or appellation of Bread Winner. The importance of providing necessaries to the family is captured by the Constitution of the Federal Republic of Nigeria 1999 under Section 17(3)(h) which enjoins the State to encourage the promotion of family life. It also stipulates under Section 17(3)(f), (g) that the State has a duty towards ensuring that children are protected against material neglect and to provide assistance in deserving cases. — A. Aboki, JCA.

A literal interpretation of Section 70(1) of the Matrimonial Causes Act will reveal that the sum to be awarded for maintenance of a wife and child of the marriage shall be determined inter alia by – “(a) The means of the parties, which has been interpreted to mean capital assets of the parties including contingent and respective assets. See Damulak v. Damulak (2004) 8 NWLR Pt. 874 page 157, at 171-172. (b) The earning capacity of the parties (c) Conduct of the parties to the marriage (d) Other relevant consideration may include – (i) the existence or non existence of children (ii) the age of the children (iii) the station in life of the parties and their life styles (iv) Inflationary aspect of cost of living. See Hayes v. Hayes (2000) 3 NWLR Pi. 648 page 276: Akinbuwa v. Akinbuwa (1998) 7 NWLR Pt. 559 at page 601: Nanna v. Nanna (supra). — A. Aboki, JCA.

Abdu Aboki, J.C.A.

Adekola Mustapha.
T.O. Badmus.


This Appeal is against the decision of the High Court of the Federal Capital Territory Abuja delivered by O.O. Goodluck J. dated 18th February 2008.

The fact of this case in brief is that the Petitioner/Respondent married the Appellant at the Immanuel Baptist Church, Akeetan, Oyo State on the 4th June, 1994. From that date, they lived together as man and wife in Flat 11, Block 2, Section 2, Badagry Street in Area 2, Abuja. In December, 2002, the Appellant brought in a woman to live with them in their matrimonial home in a relationship which according to the Petitioner bore the semblance, of a “marital relationship”. The trio could not live together amicably, life became unbearable for the Petitioner who found her matrimonial home unconducive. The Petitioner alleged that she was occasionally physically and verbally assaulted by the Appellant besides, financial assistance from the Appellant was grounded to a halt hence she had to cater for herself and the only issue of the marriage.

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On 31st January 2003 the Petitioner moved out of the matrimonial home for the sanity of her child and herself and has since been continuously living apart from her husband. The Petitioner by her Amended Petition dated 14th March 2006 prayed the lower Court for the following reliefs against the Appellant:- “(a) A decree of Dissolution of marriage on the grounds of cruelty, desertion for at least one year and having lived apart for a period of three years. (b) An Order awarding the Petitioner custody of the child of the marriage. (c) Maintenance Order for the Petitioner and the child of the marriage.”

The Appellant filed an answer dated 31st May, 2006 in which he denied all the averments of the Petitioner other than the fact that they were lawfully married. He denied ever marrying another woman nor did he bring any woman into their matrimonial home. He alleged that the Petitioner was persistently quarrelling with his two daughters of his previous marriage and that her departure from their matrimonial home according to the Appellant was Petitioner’s unilateral decision.

The lower Court in its judgment delivered on 18th February, 2008 granted all the three reliefs sought by the Petitioner and made orders for maintenance.

The Appellant dissatisfied with the award of maintenance cost against him appealed to this Court.


I. Whether in the circumstance of this case and the evidence adduced at the trial, the learned trial Judge was right to award maintenance cost for both the child and the Respondent against him?

“I have carefully perused the judgment of the trial Court, the trial Court in my opinion considered all the evidence presented before it as to the means of the parties, their earning capacity, the conduct of the parties to the marriage and other relevant considerations such as their lifestyle and other dependants of the parties before coming to his assessment of the maintenance cost to be paid by the Appellant to the Respondent.
On page 87 of the Record of Appeal the trial Court said:- ‘Relying on the case of Hayes v. Hayes (supra) regard must be given to the financial status of both parties and their lifestyle… Still on the considerations enunciated in the Hayes v. Hayes case, the respective means of livelihood has also been taken into account under this issue of maintenance… Finally on the 3 condition for maintenance, it is the case of the Petitioner that the Respondent brought a woman to live with her and the Respondent in their matrimonial home in December, 2001. She cited an instance when she was verbally and physically assaulted by the Respondent. On the 17th April, 2002, the Police and neighbours had to intervene. Besides, she has had to pay for herself and the child when the Respondent refused to provide feeding allowance. Her departure from their matrimonial home was on account of the unbearable and intolerable conduct of the Respondent. The Respondent denied all the Petitioner’s allegations rather it was a case of Counter accusation as he testified that it was Petitioner who made life so unbearable to his two elder daughters to the extent that he had to send them away from home.’
At page 88 of the Record of Appeal the trial Court made the following findings on the conduct of the parties thus:- ‘Upon a thorough evaluation of the facts presented to this Court together with the factors considered in the Hayes v. Hayes case my answer to issue 3 is in the affirmative.’
In arriving at its decision that it is proper to award maintenance to both the Petitioner and the child the Court said at page 88 of the record of Appeal thus:- ‘Both the petitioner and the only child of the marriage are entitled to maintenance payable by the Respondent However, the Court’s award will be informed by the financial capabilities of the Respondent.’
It is in evidence before the Court that the Appellant has two houses, he lives in one of the houses while the second house is given out on rent. However the Appellant failed to disclose the rent generated from the said house which could have been of assistance to the Court in assessing his correct means. The actual rent for the said second house is a fact within the personal knowledge of the Respondent which he ought to have disclosed to the Court but he did not. In its assessment of the means of the parties the trial Court observed this non disclosure of the rent generated by the Respondent from the second house and said:- ‘The shop the Respondent opened up for the Petitioner is solely run by Petitioner and proceeds are still collected by the Petitioner, there is no evidence of the rent generated by the Respondent from his second house before this Court. In light of the foregoing considerations, the Respondent is hereby ordered to pay the sum of N40,000,00 (Forty Thousand Naira) per quarter toward the upkeep of the only child of the marriage. Respondent is further ordered to pay the sum of N25,000 (Twenty-five Thousand Naira) per term for Oluwaseyi’s school fees. He shall be financially responsible for her education up to tertiary level.’
Considering the inflationary regime in this country vis-a-vis the depreciating value of the Naira, I am of the opinion that the maintenance assessment made by the trial Court was very fair.”

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B. “In the instant case this Appeal seeks to vary the order of maintenance made by the lower Court on 18th February, 2008, but the Appellant has not presented anything before this Court to indicate that since the Order was made the circumstances by the parties or either of them or of the child for whose benefit the Order was made have changed to such an extent as to justify this Court varying the Order of maintenance made by the trial Court. The Appellant had not also contended at the hearing of this Appeal that material facts were withheld from the trial Court that made the order or that material evidence previously given before the trial Court was false. If any of these circumstances had existed at the hearing of this Appeal, the Appellant upon an application for leave to adduce fresh evidence would have been granted an indulgence by this Court.”
“I see no merit in this Appeal and it is hereby dismissed. Pursuant to the provisions of Section 79(a) & (b) of the Matrimonial Causes Act Cap 220 LFN 1990, I hereby confirm the decision of the trial Court delivered on 18th February, 2008. I will however not make any order as to cost.”

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The Matrimonial Causes Act provides under Section 73 thus:- “The Court shall not make an order increasing or decreasing an amount ordered to be paid by an order unless it is satisfied – (a) that, since the order was made or last varied, the circumstances of the parties or either of them, or of any child for whose benefit the order was made, have changed to such an extent as to justify its so doing; or (b) that material facts were withheld from the Court that varied the order or material evidence previously given before such Court was false.”

In Nanna v. Nanna (2006 3 NWLR Pt. 966 page 1 at 41 Abba Aji J.C.A. said on the duty of Husband to maintain his wife and children thus:- “The law has clearly provided for the criteria to be followed. A man has a common law duty to maintain his wife and his children and such a wife and child or children have a right to be so maintained. The right of a wife and child to maintenance is not contractual in nature. The husband is obliged to maintain his wife and may by law be compelled to find them necessaries, as meat, drink, clothes et cetera, suitable to the husband’s degree, estate or circumstance. In assessing maintenance, Section 70(a) gives the Court the discretionary power to order and assess maintenance of a party, it is not likened to a claim for special damages where the claimant must strictly prove his entitlement to such award before same can be awarded by the court as submitted by the appellant’s Counsel.”





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