Faustina Ekinadose Oviasu V. Dr. Victor Ogumumwen Oviasu & Anor (1973)

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S. SOWEMIMO, J.S.C. 

This appeal is against the judgment of the Benin High Court in Suit No. B/23/70, dismissing a petition for dissolution of marriage by the petitioner now the appellant before us against the 1st respondent, who is the respondent to this appeal. The judgment was delivered on the 31st of March, 1971.

According to the learned trial Judge, the petitioner prayed for the dissolution of the marriage between herself and the 1st respondent on three grounds, namely:-

(a) Adultery by the 1st respondent with the 2nd respondent and other women;

(b) Cruelty; and

(c) Desertion.

The learned trial Judge in his judgment dissolved the marriage, however, on a prayer by the 1st respondent on the ground of desertion by the petitioner. This prayer was supposed to be contained in the answer filed by the 1st respondent.

The appeal before us is against both decisions. There were six grounds of appeal filed and are as follows:-

“1. The learned trial Judge misdirected himself in law in failing to observe that Nigerian law in regard to the quantum of proof required to establish adultery, is not the same as in English law. Under Nigerian law, proof is established by the balance of probabilities on the evidence whilst in English law, there must be proof beyond reasonable doubt.

2. The learned trial Judge erred in law and on the facts in holding that the 1st respondent has established a case of desertion against the petitioner, and that Exhibits C and D support such finding.
3. The learned trial Judge erred in law in failing to observe that on the facts of the case and having regard to the relevant provisions of the Matrimonial Causes Decree 1970, it was erroneous to have issued a decree on dissolution of marriage based on the petition of the 1st respondent.
4. The learned trial Judge exercised his discretionary jurisdiction wrongly in awarding custody of the children to the 1st respondent.
5. The award of custody of the children of the marriage to the 1st respondent is unreasonable having regard to the facts and circumstances of this case, and in particular, the age of the children aforesaid.
6. Judgment is against the weight of evidence.”

The petition is set out in 21 paragraphs. A supplemental petition containing 15 paragraphs was also filed. The answer to the petition contained 48 paragraphs. A supplemental answer of 10 paragraphs was later filed. The evidence of the petitioner covered 42 pages of the record of proceedings. The petitioner called 5 witnesses in support of her case. The 1st respondent’s defence is contained in 24 pages of the record of proceedings. The 1st respondent called a witness in support of his defence.

In his judgment, the learned trial Judge pointed out that because the counsel for both parties did not know of the promulgation of the Matrimonial Causes Decree 1970, when the original petition and answer were filed, he had to grant them leave to file a supplemental petition and a supplemental answer. Both parties then took advantage of this, and inserted an additional ground for the dissolution of the marriage on the ground that it had irretrievately broken down. The learned trial Judge after dealing with the grounds on which either party had prayed for the dissolution of their marriage, proceeded thus in his judgment:-

“The bulk of the testimony charging the 1st respondent with adultery revolves around the person of the 2nd respondent, and it is clear that notwithstanding the volume of the testimony aforesaid no admissible evidence in proof of the adultery can be found anywhere in the record of this case. I do not therefore propose to engage myself in the time consuming exercise of setting out in detail what the testimony is on the question of the alleged adultery committed by the 1st respondent with the 2nd respondent.

The following dicta in the case of BASTABLE v. BASTABLE (1968) 3 AELR page 701 set out in clear terms what is the burden of proof in a charge of adultery:- “Whatever the popular view may be, it remains true to say that in the eyes of the law the commission of adultery is a serious matrimonial offence. It follows that a high standard of proof is required in order to satisfy the court that the offence has been committed. The standard of proof is higher than that on the ordinary balance of probabilities between plaintiff and defendant.” (underlining is ours).

The above is the learned trial Judge’s decision on the issue of adultery. No mention was made as to petitioner’s evidence that he confronted the 1st respondent with the allegation and his subsequent reactions, especially the visits to the relatives of 2nd respondent. Dr. Ediele’s evidence, which supports the charge of adultery, also was not properly considered and evaluated.