In Re: Olawale Onile – Ere Vs Oladapo Williams (1974)
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FATAYI-WILLIAMS, JSC.
In her amended Petition for the dissolution of her marriage to the respondent, the petitioner referred to one Olawale Onile-Ere in the title of her Petition as the “party cited”. Not one word was, however, said about the party cited in her Petition. Instead, she averred in paragraphs 18 to 21 thereof as follows:- “18. That on diverse occasions the respondent has committed adultery with one Jemila Danmole and other women.
19. That the respondent did not discharge his matrimonial duty and has callously neglected to maintain the petitioner and the children of the marriage. 20. On the 27th of June, 1965, when the mother of the respondent came into the matrimonial home at Griffith Street, Ebute Metta she started abusing the petitioner and calling her all sorts of dirty names and finally ordered the respondent to drive the petitioner out of the said matrimonial home
21. That the petitioner begged the respondent not to desert her but the respondent in obedience to his mother’s order forcibly ejected the petitioner out of the said matrimonial home. 21(a) That by his conduct as aforesaid the respondent drove the petitioner from the matrimonial home, and the petitioner was thereby on the 27th day of June, 1965, driven from the matrimonial home at 29, Griffith Street, Ebute Metta aforesaid and she has not thereafter returned to cohabit with the respondent. 21(b)That the marriage has irretrievably broken down in that – (a) the respondent had deserted the petitioner for a continuous period of at least one year immediately preceding the presentation of this Petition; (b) the parties to the marriage have lived apart for a continuous period of at least three years immediately preceding the presentation of this Petition.”
In his own amended Answer, the respondent denied the above averments and averred further in paragraphs 6 to 11, and 13 of his Answer as follows:- “6. That with further reference to paragraphs 20 and 21 the respondent says that on the date mentioned the petitioner called him and bluntly told him that she had no more love for him and wanted to leave him. The respondent who knew that she was being enticed by one Olawale Onile-Ere could not do anything about it when she eventually left.
7. That the respondent has not been guilty of adultery as alleged in paragraph 18 or at all. 8. That the marriage had broken down irretrievably on account of the petitioner’s adultery with Olawale Onile-Ere (hereinafter called the party cited) at Lagos on several occasions and respondent finds it intolerable to live with the petitioner.
9. That the party cited due to his wealth enticed the petitioner, who has a taste for expensive clothing and trinkets, by his riches. 10. That the petitioner who is of unchaste habits has several times come home with expensive items of presents given to her by the party cited. 11. That as a result of adultery between the party cited and the petitioner the petitioner was delivered of a baby girl called Oluwatosin. 13. That the respondent has not in any way been accessory to or condoned the said adultery.”
The respondent, thereupon, also prayed the court for the dissolution of the said marriage. In addition, he asked that the party cited should be – “condemned in £500 damages for adultery and costs of this suit.” Although served with a copy of the amended Answer and Cross-petition, the party cited did not file any defence to the allegation of adultery made against him therein by the respondent. Instead, learned counsel Mr. Jaiyesinmi who had earlier appeared for the petitioner, also appeared for the party cited (who was present in court), and informed the court as follows:- “I also wish to say that I am instructed also to appear for the party cited who is in court and who wishes to be heard as to costs and damages. I will only address as to damages and costs so far as the party cited is concerned.” In the testimony she gave in support of her Petition the petitioner admitted that she committed adultery with the party cited and that as a result a child by name Oluwatosin was born on 20th October, 1966. Although these facts were not pleaded by her, she gave further evidence of the adultery in the course of her evidence in-chief as follows:- “The adultery with Mr. Olawale Onile-Ere was committed on 26/12/65.
I met him on 24/12/65. Between 27/6/65 and 26/12/65 I never committed adultery. Since 26/12/65 I had been committing adultery with the co-respondent. Apart from Mr. Onile-Ere, I have committed adultery with no one else. “ (The underlining is ours). In effect, the petitioner, of her own volition, volunteered the evidence in support of the adultery alleged by the respondent in his Answer and Cross petition. The respondent, pursuant to the averment in his pleadings, also testified as to this adultery as follows:-
PAGE| 4 “I know Olawale Onile-Ere. He is the party cited. I know Mr. Onile-Ere personally. I know that he commits adultery with my wife. I know that as a result of the adultery she had a child for him by name Oluwatosin.” In a reserved judgment, the learned trial Judge made it clear that he preferred the evidence of the husband to that of the wife. He then found as follows:- “In my view the respondent has satisfactorily established that the marriage had broken down irretrievably in that the petitioner had committed adultery with the person cited, Olawale Onile-Ere. Quite apart from this, the petitioner had deserted the respondent for a period of at least one year before the filing of the petition and the parties had lived apart for a period of over three years immediately preceding the presentation of the Petition. I would make an order for a decree nisi in the marriage.”
As to the damages asked for, the learned trial Judge observed:- “The principles of law to be applied are to approach the issue from the stand point that damages should not be punitive but compensatory. It may be awarded to the husband for the loss of his wife, for the injury to his feelings, the blow to his honour, and hurt to his family life. In the instant case the marriage had in fact broken down and the parties had been separated before the party cited came on the scene at least so I am told by the petitioner herself and this is not contradicted by the respondent. The status or means of the party-cited should have no bearing on the quantum of damages unless, of course, they were of assistance to him in seducing the wife. That was not suggested to have been the case here.”
The learned trial Judge then found finally as follows:- “I have taken all these matters into consideration and I have decided, having regard to all the circumstances, that a sum of £200 is fair and reasonable to be awarded as damages against the party cited. I consider that damages awarded be settled on all the children of the marriage in pursuance of Section 31(4) of the Matrimonial Causes Decree, 1970.”
The party cited has now appealed against this award. His main complaint before us is that having found that the marriage had in fact broken down and the parties had been separated before the party cited came on the scene, the learned trial Judge was in error when he awarded Damages of £200 (or N400.00) against the party cited. It was also submitted that, in view of the provisions of Section 31(3) of the Matrimonial Causes Decree, 1970, the learned trial judge, before he can make an award, must first make a finding that the adultery on which the claim for damages was based was committed within three years of the date of the petition; as he made no such finding, there was no basis for the award because if the adultery was committed more that three years before the date of the petition, no damages can be awarded under the Decree.
PAGE| 5 In the course of his reply, learned counsel for the party cited conceded that there was no clear averment in the respondent’s amended Answer and Cross-petition that the adultery complained of was committed less than three years before the date of the petition. He also conceded that there is no clear evidence to that effect and that the learned trial Judge made no finding on the point. He, nevertheless, contended that there is evidence that the adultery was a continuing one. We think there is merit in the complaint of the party cited. This is because of the provisions of Section 31 of the Matrimonial Causes Decree, 1970, which, incidentally, are similar to those of Section 44 of the Matrimonial Causes Act of Australia.
The Section reads – “31(1) A party to a marriage, whether husband or wife, may, in a petition for a decree of dissolution of the marriage alleging that the other party to the marriage has committed adultery with a person or including that allegation, claim damages from that person on the ground that that person has committed adultery with the other party to the marriage and, subject to this section, the court may award damages accordingly.
(2) The court shall not award damages against a person where the adultery of the respondent with that person has been condoned, whether subsequently revived or not, or if a decree of dissolution of the marriage based on the fact of the adultery of the respondent with that person, or on facts including that fact, is not made. (3) Damages shall not be awarded under this Decree in respect of an act of adultery committed more than three years before the date of the petition.
(4) The court may direct in what manner the damages awarded shall be paid or applied and may, if it thinks fit, direct that they shall be settled for the benefit of the respondent or the children of the marriage.” (The underlining is ours). It will be noted that while the provisions of subsections (1) and (4) above are permissive, those of subsections (2) and (3) are mandatory and the court must give effect to their implications. Furthermore, the right to claim damages for adultery under subsection (1) is subject to the limitation specified in subsection (3). Before considering the relevant evidence as well as the finding of the learned trial Judge in the case in hand, we must point out, since the point has been canvassed seriously in the argument before us, that the fact that the husband and wife are living apart at the time the adulterous association began is a matter for mitigation of damages only. It will not exculpate the party cited. (See Izard v. Izard and Leslie (1889) 14 PD 45 and Gardner v. PAGE| 6 Gardner and Bamfield (1901) 17 TLR 331).
The husband or wife, as the case may be, is still entitled to compensation for the wrong done to him or her apart from the breaking up of the matrimonial home. Thus, in Evans v. Evans and Platts (1899) p.195, where a husband petitioned for the dissolution of his marriage and also claimed damages for adultery against the co-respondent, it appeared that the husband and wife separated after a cohabitation of only a few months after the marriage on account of the wife’s overbearing and insulting conduct and language towards her husband, culminating in actual violence to him on more than one occasion.
It was also proved, and not denied, that, rather more than a year after the separation, one Platts (the co-respondent), who had been acting as her solicitor, committed adultery with the respondent, and that this adulterous relationship continued for about twelve months. It was, nevertheless, held that, notwithstanding the separation and the fact that it had been caused by the conduct of the wife towards the petitioner, the petitioner was entitled to damages.
As the learned President pointed out in his direction to the jury at pp. 198-199 of that case – “The breaking up of the matrimonial home is not by any means the only element, nor has it been considered by some authorities as even the chief element, to be considered in such cases as this. A man is wronged, by the seduction of his wife, far beyond the loss which he sustains by the breaking up of his home, however important an element of marriage this may be.
It is a matter for consideration, whether a man, whose wife has been seduced by another man, has not been subjected to intolerable insult and wrong; and the fact that he has already parted from his wife at the time when the adultery was committed does not render the blow to his honour less acute – does not render the position of his child or children less serious.
The separation might have come to an end at any time. It is possible that, if she has seen the error of her ways, and if she had become a wiser woman, which also was possible, a reconciliation might have taken place. But Platts has rendered that reconciliation absolutely out of the question;… You will, therefore, consider whether Platts, by intervening as he did, has not inflicted upon the husband substantially the same wrong as if he had been actually the cause of breaking up that home.” We would only like to add that, in awarding damages in respect of adultery committed within the three years period, it is immaterial if such adultery forms part of a continuing adulterous association which commenced prior to such period. (See the Australian case of Oliver v. Oliver (1966) 8 Federal LR 419).
In the case in hand, the husband (the respondent) averred in his Answer and Cross-petition that his wife (the petitioner) committed adultery with the party cited “at Lagos on several occasions”. He gave no particulars of these occasions. In his evidence in support of this averment, he still gave no particulars.
PAGE| 7 All he said was that he knew that the party cited committed adultery with his wife and that as a result of this adultery, the petitioner had a child for the party cited. He gave no date of the birth of the child. Although the petitioner also confirmed the birth in her own testimony when she gave the date of birth of the child as 20th October, 1966, and then went on to say that she had been committing adultery with the party cited since 26/12/65, she should not have been allowed to give this testimony in her evidence-in-chief as it was not pleaded in her petition.
That evidence, as we have pointed out on several occasions, should have been ignored by the learned trial Judge as it goes to no issue. (See Emegokwe v. Okadigbo (1973) 4 S.C. 113). More important, however, is the fact that the learned trial judge, presumably because it was not pleaded by any of the parties, made no finding that the adultery on which he based his claim for damages for adultery, as distinct from the one on which he grounded his order for decree nisi, was committed within three years of the date of the petition. By this omission the learned trial judge was unable to show that the claim was manifestly within the ambit of Section 31(3) of the Decree.
As we have pointed out earlier, the provisions of Section 31(3) of the Decree are mandatory. As they stand, no damages can be awarded in respect of an adultery committed more than three years before the date of the petition. Moreover, in our view, the onus of proving the particular adultery relied upon by a petitioner for his or her claim for damages under Section 31(1) lies squarely on such petitioner and must be proved to the satisfaction of the court. In addition, because of the mandatory provisions of subsection (3), the court hearing the petition or cross-petition, as the case may be, must make a clear finding as to whether that adultery was or was not committed within a period of three years preceding the date of the petition for divorce.
In the instant case, failure on the part of the respondent to prove this in his cross-petition is fatal to his claim for damages for adultery. Furthermore, in the absence of any finding that the adultery found by him to have been committed by the petitioner was committed within this statutory period, the learned trial Judge was in error in awarding damages against the person cited. For these reasons, we allow this appeal and set aside the amount of £200 (or N400.00) awarded as damages against the party cited. T
he costs awarded against him are also set aside. Instead, we order that the respondent’s claim for damages against the party cited in his (the respondent’s) cross-petition brought in the Lagos High Court in Suit No. WD/16/70 be and is hereby dismissed and that this shall be the judgment of the court. Costs to be paid by the respondent in favour of the party cited are assessed in the court below at N30.00 and in this court at N105.00.
Other Citation: (1974) LCN/1805(SC)
