Akinola Adaramaja V. Catherine Adaramaja (1962)
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The appellant filed a petition in the Divorce Registry of the High Court of Ibadan seeking the exercise of the Court’s discretion in his favour by decreeing that the marriage solemnized between himself and the respondent on the 24th day of March, 1956 be dissolved, and that he be awarded the custody of the two issues of the marriage.
The grounds on which the exercise of the Court’s discretion is sought are two fold, to wit:-
That the respondent has been guilty of cruelty towards the petitioner, and
That the acts of the respondent had conduced to the adultery of the petitioner with the “woman-named” in the Discretion Statement.
At the hearing of the petition, the petitioner gave evidence and called two witnesses in support of the petition. The respondent, on the other hand, did not appear in person at the hearing, being in the United Kingdom, and no evidence was offered on her behalf. The learned trial Judge dismissed the petition for reasons which will shortly become apparent. Against this dismissal, the petitioner has appealed and filed six grounds of appeal in support thereof. Mr. Ayoola’s arguments on behalf of the petitioner are as follows:-
1. That the learned trial Judge did not disbelieve the evidence called in support of the petition.
2. That in exonerating the respondent from the alleged acts of cruelty on account of her being in a state of pregnancy, the trial Judge was in effect setting up an answer or defence which was not set up by the respondent at the hearing, and In respect of which evidence was not adduced.
3. That the trial Judge did not exercise his discretion judicially by rejecting the prayer of the petitioner.
Mr. Omotosho, on the other hand, contended that the evidence of the petitioner was rejected by the trial Judge and that this Court ought not, in its appellate jurisdiction, to Interfere with the findings of fact and decision of the trial Judge. He referred to the following passages in the judgment of the trial Judge in support of his argument that the case for the petitioner was rejected; where the trial Judge said that:
In trying to prove his case, he has indulged, maybe unintentionally, in a number of obvious embellishments.
Stopping there for a moment to comment, it should be mentioned that nowhere in the judgment of the trial Judge has he set out what parts of the evidence he accepts as devoid of embellishments and what he deems to have been the fictitious additions, and I regret to say that in the absence of that it is impossible for an appellate Court to see any “obvious” embellishments in the record. The other passage to which our attention was drawn appears a little lower down, where the trial Judge says this:
Even if the evidence of the petitioner can be accepted I am still not convinced that the altercations referred to amount to such persistent acts of cruelty as would justify the dissolution of the marriage.
The way I read this is that the trial Judge was of the view that whether the facts relied on by the petitioner be false or true, they were not sufficient to justify an order for a dissolution of the marriage. In short then, he did not in the passage reject or accept the evidence. But a little lower down he says this:-
I am convinced that the acts complained of by the petitioner in this case, committed by the respondent during pregnancy, and so soon after her marriage, are the sort of acts which Lord Penzance had in mind when his Lordship made this profound observation.
It seems to me that by this passage, the trial Judge has accepted the evidence of the petitioner of the acts alleged to have been committed by the respondent shortly after their marriage when she was in a state of pregnancy. It is in this light that I propose to view the evidence of the petitioner and his witnesses.
The position, shortly put, is that the parties were married in England in March 1956: the petitioner returned to Nigeria in October 1956 and the respondent joined him in November 1956. Shortly after the arrival of the respondent she made it known to the petitioner that he should give up private practice and join the Civil Service, which the latter refused to do. In May 1957 and August 1957, she physically demonstrated her disapproval of the petitioner going on tour for cases and on the former occasion successfully prevented him from so doing. Then there was evidence of moments of embarrassment caused the petitioner by the respondent’s tearing his shirt and beating and dragging him in the presence of other people. Evidence was also led of her threats to commit suicide and also to kill the petitioner. Both of these were evidenced by overt acts. Finally, she got the petitioner to raise a loan for the payment of her passage from Nigeria in October 1958. She took the two children away and has not returned to Nigeria. The petitioner deposed that he was mentally distressed and worried as a result of all these acts.
The classic definition of legal cruelty is “conduct of such a character as to have caused danger to life, limb or health (bodily or mental) or as give rise to a reasonable apprehension of such danger.” Lord Normand said in King v. King, (1952) 2 A.E.R. 584 at 586, that:
The general rule in all questions of cruelty is that the whole matrimonial relation must be considered, and that rule is of special value when the cruelty consists, not of violent acts, but of injurious reproaches, complaints, accusations, or taunts.
A little later on in the judgment the learned Law Lord went on to say that:
In Usmar v. Usmar (1949 p.1; (1948) L.J.R. 1418) William, J., in a case where each spouse charged the other with cruelty, said that the wife’s persistence in nagging her husband went far beyond what was forgivable in the circumstances. He said elsewhere in the same judgment that he must, before coming to a conclusion, consider the impact of the personality and conduct of one spouse on the mind of the other, and he weighed all the incidents and quarrels between them from that point of view. In my opinion, that is the proper approach to the issue and the method which ought to be followed. But it was not followed by the trial Judge in the present case. It, therefore, becomes necessary to inquire whether, on the whole facts and in all the circumstances, the husband has proved that his wife was guilty of injurious, wilful and inexcusable conduct towards him.
In my view, on the facts as presented and uncontroverted it has been proven that this disapproval of the petitioner going on tour in the pursuit of his calling as a legal practitioner began shortly after the respondent’s arrival in Nigeria in November, 1956, before she was in a state of pregnancy, for the first child was delivered in December 1957. This state of affairs continued until she left Nigeria in 1958 and it showed up in the various forms already enumerated above. It culminated in the threats to commit suicide and the threatened attack on the petitioner, both evidenced as I have said above by overt acts. These acts were wilful, inexcusable and injurious and taken as a whole I am of the view that they constitute cruelty.
I must now turn to the question of the Court’s exercise of its discretion. On this point Mr. Omotosho contended that since the High Court has refused to exercise its discretion in favour of the petitioner, the latter cannot come to this Court to ask for the exercise of such discretion. In Moor v. Moor 1954 2 A.E.R. 458 to which our attention has been drawn, Sir Raymond Evershed, M.R. said at page 459 that:
It is not in doubt that this Court cannot substitute its discretion for that exercised by the jud ge unless it is made plain that in some way he has exercised his discretion wrongly, that is to say, not judicially, as by misdirecting himself in some material particular.
The learned trial Judge in the present case, on the point as to the exercise of his discretion, says this:
I find that the respondent has not been cruel to the petitioner.
With regard to the “discretion statement” filed by the petitioner, I have given the matter the most careful consideration, bearing in mind the decision in Wilson v. Wilson 1920 Probate p.20, where it was held that the discretion given to the Court to grant relief to a petitioner who has been guilty of misconduct Is not to be exercised readily but with stringency.
I say with great reluctance that I am not convinced of the petitioner’s bona fides, the association with the woman in question having started within five months of the respondent’s departure for the West Indies. In the circumstances, I am unable to exercise my discretion in favour of the petitioner.
With respect to the learned trial Judge it does not appear that the effect of s.4 subsection (2) of the Matrimonial Causes Act, 1950, was fully understood, for once the trial Judge found that cruelty, the only ground on which the petition was based, was not proved, the question of the exercise of his discretion did not arise. In the case of Burford v. Burford (1955), 3 A.E.R. 664, at p.665, Hodgson, LJ., delivering the judgment of the Court of Appeal, says this:-
It seems to me that, the adultery having been admitted, it was not open to the commissioner to take the course he took, viz to refuse to exercise his discretion without coming to a conclusion whether or not desertion had been proved. Section 4 of the Matrimonial Causes Act, 1950, provides for the duty which the court has to perform on the hearing of a petition for divorce, and subsection (2) provides that, if the court Is satisfied on the evidence that the case for the petition has been proved, the court shall pronounce a decree of divorce, but ff the court is not satisfied in shall dismiss the petition.%
Case Number: FSC. 412/1961