By Yejide Gbenga-Ogundare


A woman that has children for her husband and had married him before a house is built has the right to live in the house with her children even after divorce under the provisions of the Married Woman Property Act 1882, a court held on Friday in Ibadan, Oyo State.

The belief that patriarchy is so entrenched in the Nigerian system and women have no rights even under the law has been proved to be an erroneous one, majorly propounded by those ignorant of the rights provided under the law, the court said in a landmark judgement.

The provisions of the Married Woman Property Act 1882 formed the basis of the pronouncement of the Chief Judge of Oyo State, Justice Munta Abimbola, on Friday in a property suit between a divorced couple, Toyin Arajulu, formerly known as Mrs Toyin James and her former husband, Mr James Monday.

The court held that “a husband who marries a wife and builds a house during the pendency of the marriage stands the risk of losing that house if he later divorces the woman who had children for him unless such woman, of her own volition, leaves the matrimonial home.”

Justice Abimbola, while ruling on the matter, emphasised what is known in law as the “palm tree justice,” which indicates that it does not matter in whose name the property stands or who pays what (on the property) and in what proportion as determination of such matters transcends all rights, legal or even equitable, but simply what order is fair and just in the circumstances of the case, citing the case of Home Vs Home (1962) 1 WLR 1124 at 1128.S 17 Married Woman Property Act 1882, which is a statute of general application.

Toyin Arajulu had filed the suit against her ex-husband, Monday James, who she married under Native Law and Customs in 1997 and for whom she had four children.

She claimed that while she was married to him, they had put resources together and built two flats of three bedrooms at Ayedun in Akure, Ondo State and procured a plot of land at No 7, Fadana Biala Estate, Olodo, Ibadan, where they built a three-bedroom flat and a storey building which is still under construction before their divorce in July 2014.

She averred that before the divorce, her husband had moved out of their matrimonial home in Olodo but only came constantly to try to forcibly eject her and the children, usually accompanied by thugs who attacked her and her children.

She added that on August 15, 2014, one of her children, Bidemi James, was wounded in one of the episodes of attempted violent eviction and the sum of N530,000 from her business taken by her ex-husband and his accomplices.

She claimed that he had concluded plans to sell off the joint property without her consent and had continued to victimise her and the children, asking the court for a declaration that the property is jointly owned by the two of them and an order that the landed property with the three-bedroom flat and uncompleted storey building be sold and proceeds divided equally between them and an order of perpetual injunction restraining James from harassing her and the children.

In his counter claim and defence, the ex-husband stated that when he bought and constructed the Akure property, his wife was a full housewife and had no contribution to the project, adding that the situation was the same for the Ibadan property as his wife only signed as a witness as she had no job and only depended on what he gave her to take care of the children when he travelled out of the country.

According to him, she was only trying to fraudulently take over his property, adding that her claims were vexatious, gold digging and an abuse of court process.

He also asked the court to declare that the receipts of purchase his ex-wife presented were forged and that she should vacate possession of the property which she had refused to give up despite service of statutory seven days owner’s intention to recover possession and perpetual injunction restraining her from occupying the building.

Justice Abimbola, while ruling on the case, held that the landed property at No 7, Fadana Biala Estate, Olodo, Ibadan, together with the three-bedroom flat and uncompleted storey building is jointly owned by the two.

On the second relief that both buildings be sold as requested by Toyin, Justice Abimbola held that, “I will not give such orders in respect of the two buildings. Particularly, Section 17 Married Women Law of Oyo state Cap 83, Laws of Oyo state 2000 gives a court the discretion as it thinks fit on the issues of title of possession to property.

“Section 18 also enjoins the court to treat such property as a joint property if the issue has to do with the maintenance of a matrimonial home. My order to this effect is that the completed three-bedroom flat on the land be retained as the matrimonial property and the four children are entitled as beneficial owners by way of a resulting trust created for them by their parents. The mother, as long as she remains unmarried, is directed to be in possession undisturbed in order to take care of her children.

“The uncompleted storey building is ordered to be sold by both parties and the proceeds divided in equal share. The half share shall go to the wife for the maintenance of the children. A divorced wife has no business being maintained,” Justice Abimbola held.

The court also restrained James from harassing Toyin any further or disturbing the quiet possession of the property by her and the children, holding that, “the rationale is that a husband who marries a wife and builds a house during the pendency of the marriage stands the risk of losing that house if he later divorces the woman who had children for him unless such woman, of her own volition, leaves the matrimonial home. Also, a divorced woman is not entitled to any maintenance allowance but maintenance of the children by way of settlement.”

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