Dr. O. O. Hunponu Wusu V. Abimbola Hunponu Wusu (1969)

LawGlobal-Hub Lead Judgment Report

Per Ademola, C.J.N.

The husband petitioner who is the appellant in this matter is a medical practitioner.

He complained that his petition before the learned Chief Justice of the High Court of Lagos State seeking a declaration that the marriage between him and the respondent be declared null and void was wrongly dismissed.

The petition was based on the grounds that at the time of the marriage. the respondent, was

(i) of unsound mind or

(ii) suffering from mental disorder within the meaning of tile Mental Health Act 1959 in force in the United Kingdom) of such a kind or to such an extent as to he untilled for marriage and the procreation of children, or

(iii) subject to recurrent attacks of insanity: and that at the time of the marriage, he (the petitioner) was ignorant of the state of the respondent.

In the court below ground (ii) was abandoned and the arguments centred around grounds (i) and (iii). Before us, however, ground (i) was not canvassed and it can reasonably be assumed that counsel is not quarrelling with the conclusions arrived at by the learned Chief Justice on this ground. The only ground which counsel argued before us was that the declaration sought should have been granted was ground (iii): namely, recurrent attack of insanity.

Provisions for nullity of marriage on these grounds are to be found in sec.7(1)(b) of The Matrimonial Causes Act 1937 and amplified in the Matrimonial Causes Act l965 of which section 9 is relevant. Section 9(1)( b) of that Act is as follows:-

9( 1) In addition to any other grounds on which a marriage is by law void or voidable a marriage shall, subject to the next following sub-section, be voidable on the ground (b) that at the time of the marriage, either party to the marriage:-

(i) was of unsound mind, or

(ii) was suffering from mental disorder within the meaning of the Mental Health Act 1959 of such a kind or to such an extent as to be unfitted for marriage and the procreation of children, or

(iii) was subject to recurrent attacks of insanity or epilepsy;’ For the purpose of this appeal, however, we are concerned with sub-section (1)(b)(iii) above.

The first decision of nullity of marriage on the ground that one party to a marriage was subject to recurrent attacks of insanity appears to be the case of Smith v. Smith [1940] P. 179 or [1940] 2 All E.L.R. 595 to which we will refer later in this judgment. The facts which led to the filing of the petition in the instant case are briefly as follows: Parties were married on 9th October, 1965 and lived happily together for a few weeks. On 27th November, 1965 about 8 p.m. the wife respondent engaged in a conversation with her husband, which went on non-stop till the early hours of the morning. When the husband thought (here was something wrong and tried to stop her, she got wild and threw him across the room. About 1 a.m. she packed some clothes which she made into a bundle, carried the bundle on her head and ran out of the house with the husband in pursuit.