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.
She ran into her parents-in-laws house. apparently next door and woke up everybody. She threw herself naked into the parents room and started gesticulating to herself. After making use of some unfamiliar language to the surprise of the husband, she threw her wedding ring and the engagement ring at him saying she was not marrying him any more. Later. her father was sent for; he carne and insisted on taking her home, despite the resistance of the husband.
The husband visited her regularly at her fathers house where she was receiving treatment in the hands of a psychiatrist, Dr. Marinho. It would appear that she had an abortion on 1st January, 1966 and was taken to and treated at the Island Maternity Hospital where she stayed for a few days. She later returned to her fathers house and continued to receive treatment from Dr. Marinho.
When apparently she got worse, it would appear she was taken to a native doctor at which the husband protested and she was in February admitted to the Hospital for Nervous Diseases at Aro (Abeokuta) where she received treatment for 3 months. It is not quite clear whether there was a breakdown in the wife’s health twice after the marriage-one on the 27th November, 1965, and secondly immediately after suffering abortion on 1st January, 1966.
It is evident however that she suffered a severe break-down in her health and it is clear from the proceedings that all are agreed that she had an attack. The contention appeared to be that the respondent was not subject to recurrent attacks of insanity and that what happened after her marriage was an isolated case.
As the learned Chief Justice appeared to have taken the view that on the day of the marriage the respondent was capable of entering into a contract of marriage and that it is therefore not now possible to avoid the marriage, it will be necessary to give a resume of the respondents state of mind before the marriage.
But before doing so, we would, with respect, say that we are unable to agree with the learned Chief Justice on the view he has taken of the case. The case is not that on the clay of the marriage the respondent was capable or not capable to enter into a contract of marriage.
This is not material for the purpose of sec.9(1)(b)(iii) of the Act.This provision of the Act does not depend upon capability to contract. It is simply this – that at the time of the marriage the respondent was or was not subject to recurrent attacks or fits of insanity or epilepsy. The learned Chief Justice however appeared to have found that before her marriage the respondent suffered no breakdown or attack.
The evidence revealed that the wife respondent was an undergraduate at Cambridge University and during her student days she was on two occasions admitted into nervous diseases hospitals, In May, 1962 she was admitted into Addenbrookes Hospital in Cambridge and treated by a Doctor Young. She said in her evidence that she suffered then from insomnia for which she received treatment but one gathered from Dr. Youngs report (exh. B’) that ‘she was suffering from a very severe depressive illness,’ The report further states as follows:-
“The only thing that bothered me at the time was that she fears that a former friend in Nigeria had given her some slow poison and that this was why things were going badly with her in England. It appeared that this friend had seemed jealous when she was chosen to go to Student Conference in America in 1961, and she felt guilty, about her suspicions about this friend.’ Later in the report, Dr. Young said:-
‘The personality inventory testing showed her to be an extremely anxious introvert. Her Rorschach record was not typical of extreme depression, and did indicate that there might possibly be a schizophrenic disturbance. On the whole, while I was seeing her, she responded well to anti-depressant treatment, supportive psychotherapy, and, just before her examination, Fentazin in doses of 4 mg. three times a day,’ Again, in 1964, she was admitted to Barnstead Hospital in Surrey. The report by doctor Baker reads:- ‘Miss Okenla was admitted to this hospital on 7th July, 1964 ‘suffering from an acute schizophrenic illness.
As you know there is always a risk of relapse ‘with a schizophrenic illness and childbearing is known to be one of the precipitants of relapse,’ As we stated earlier there was no dispute about the break-down after her marriage and the admission to the Aro Hospital where she was treated by Dr. Asuni. This doctor, apparently available, was not called to give evidence, but a report made by him was put in evidence.
The picture painted by this report is somewhat reassuring; hut unlike the learned Chief Justice who heard this case, we are not particularly impressed with Dr. Asunis report and we do not think in the absence of the doctor to explain some points in his report it was worth attaching all that importance to it as did the learned Chief
Other Citation: (1969) LCN/1728(SC)
