MzAgams

Domestic violence is a crime known as spousal battery under the federal Violence Against Persons Prohibition Law 2015. Eighteen states of Nigeria have passed state VAPP laws.  They are Federal Capital Territory, Abia, Akwa Ibom, Anambra, Bauchi, Benue, Delta, Ebonyi, Edo, Enugu, Jigawa, Kaduna, Kwara, Nasarawa, Ogun, Osun, Ondo and Oyo. Lagos has the Protection Against Domestic Violence Law 2007 and Ekiti has Gender-Based Violence Prohibition Laws 2019 with provisions similar to the VAPP Act 2015.  A 2018 survey by the Thomson Reuters Foundation, ranked Nigeria as the ninth most dangerous country for women.

Domestic violence is a violation of fundamental human rights, which are specifically protected in the Nigerian Constitution. Unfortunately there are laws that make domestic violence against women legal. Section 55 (1) (d) of the Penal Code applicable in the Northern part of Nigeria specifically provides that beating of a wife for the purpose of correction is legal by use of (of the Penal Code)

The Matrimonial Causes Act has long recognised violent crimes against a spouse as grounds for divorce in Nigeria under section 16 (1)(e). 

Section 16.   (1)     states as follows

Without prejudice to the generality of section 15(2)(c) of this Act, the court hearing a petition for a decree to of dissolution of marriage shall hold that the petitioner has satisfied the court of the fact mentioned in the said section 15(2)(c) of this Act if the petitioner satisfies the court that-

  (e)            since the marriage and within a period of one year immediately preceding the date of the petition, the respondent has been convicted of-

(i)             having attempted to murder or unlawfully to kill the petitioner, or

(ii)            having committed an offence involving the intentional infliction of grievous harm or grievous hurt on the petitioner or the intent to inflict grievous harm or grievous hurt on the petitioner;

The problem has always been that it only recognised violence against a spouse as grounds for divorce if that offending spouse has been convicted of the offence, and ostensibly only when it amounted to attempted murder or grievous bodily harm. Indeed there was a terrible miscarriage of justice many decades ago when a woman that whose husband had attempted to murder her and who only survived through sheer luck was unable to divorce her husband till such a time as he had been convicted. He was at the time evading conviction. Unfortunately her lawyers did not know that they should have used s.15(2)(c) as their grounds for divorce. The VAPP Act does not make a divorce any easier although the prosecution of domestic violence is supposed to be simplified. Regardless, the victim would technically have to await a conviction before using ‘spousal battery’ under the VAPP Act as grounds for divorce and the same difficulties would apply. 

When the grounds for divorce are domestic violence  the divorce processes can be grounded on section 15(2)(c)  of the Matrimonial Causes Act which states as follows:

“15(2) the Court hearing a petition for a decree of dissolution of a marriage shall hold the marriage to have broken down irretrievably if, but only if, the petitioner satisfies the Court of one or more of the following facts-

(c) that since the marriage the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent. “

The expression ‘that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent’  has been her to be in the same category with constructive desertion and applies to ‘grave and weighty conduct-serious conduct- which reasonably results in the party leaving the other’ and ‘it may broadly be said to be cruelty without injury to health.’

Cruelty is the intentional and malicious infliction of physical and mental harm and suffering or a reasonable fear of further harm. It also includes the continuous infliction of minor acts of ill treatment that are likely to cause the victim to break down emotionally or mentally. However, temper, nagging and denial of sex are not enough to establish cruelty. Read my previous post on the subject matter here. 

Lord Pearce said in Gollina v. Gollina that “It is impossible to give comprehensive definition of cruelly, but when reprehensible conduct or departure from the normal standard of conjugal kindness causes injury to health or an apprehension of it, it is, I think, cruelty if a reasonable person, after taking due account of the temperament and all other particular circumstances would consider that the conduct complained of is such that this spouse should not be called on to endure it.” 

Most victims of domestic violence in Nigeria, both male and female, rarely make a report to the police and the Nigerian police are inclined to refer most domestic violence cases back to. The parties and their families for settlement except where there is a clear attempt to murder or inflict grievous bodily harm.  Where there is domestic violence and the victim wants to file for a divorce the best route to take is to file under section 15(2)(c) and show that the respondent has behaved in a manner that the petitioner can no longer be expected to live with the respondent. Note that this applies whether the petitioner is a man or a woman. Men can also be victims of domestic violence and can petition the court for a divorce on that grounds. 

Cruelty is the intentional an malicious infliction of physical and mental harm and suffering or a reasonable fear of further harm. It also includes the continuous infliction of minor acts of ill treatment that are likely to cause the victim to break down emotionally or mentally. However, temper and nagging are not enough to establish cruelty.

Strong evidence of cruelty includes police reports, medical records and eye witness testimony are desirable but not indispensable. The court is required to consider the entire evidence and decide whether it gives rise to a finding of cruelty. Generally conduct that endangers life, limb or health will amount to cruelty.

This will include persistent, pervasive and excessive violence or threat of violence, deliberately infecting a spouse with a sexually transmitted disease, constant displays of rage, use and abuse of juju/voodoo or religious doctrine neglect of a spouses physical needs for food, shelter and clothing and verbal and emotional abuse.

It should be noted that under the act the requirement is to prove that the petitioner/victim can no longer be reasonably expected to live with the respondent and the burden of proof is significantly lighter than it was to prove cruelty under common law.

The Nigerian case law on section 15(2) is remarkably well developed. Make sure your lawyer is knowledgeable about them and can cite the appropriate cases.