Joshua O.williams V Olajumoke O. Williams (1966) LLJR-SC

Joshua O.williams V Olajumoke O. Williams (1966)

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By a petition filed in the Divorce Registry of the High Court, Ibadan the appellant asked for a dissolution of the marriage solemnized between himself and the respondent on the 18th day of February, 1950 on the ground of cruelty and he also asked for custody of the three issues of the marriage. Originally, no discretion statement was filed with the petition but in the course of his evidence in the High Court the appellant, with leave of the court, filed a discretion statement.

At the hearing the appellant gave evidence and called four witnesses and the respondent also gave evidence but called no witness. The learned trial judge (Doherty J.) dismissed the petition and the appellant has appealed against this dismissal on three principal grounds-

“1. That the learned trial judge erred in law in holding that the evidence of the appellant has not established a case for dissolution of the marriage.

2. That the learned trial judge misdirected himself in law when he held that danger to the petitioner’s life, limb or health (bodily or mental) or that a reasonable apprehension of such danger could only be established on medical evidence.

3. That the trial judge erred in law in dealing with the question of the exercise of his discretion once he found that the cruelty, the ground on which the petition was based, was not proved.”

Briefly, the principal facts given in evidence in support of the petition were as follows: Immediately after their marriage in 1950 in Lagos, the appellant and the respondent went to England for further studies. Although they lived together for most of the period they stayed in England, they were not happy and frequently quarrelled as the respondent was in the habit of nagging the appellant whom she quite often suspected of having illicit association with other women. In July, 1956, the respondent attacked and beat up a female co-tenant, one Olga from the West Indies, whom she believed, without just cause, was having sexual intercourse with the appellant.

When the appellant intervened during the struggle, the respondent assaulted him by slapping him on the face. In October, 1956, appellant came home from work to find a note which the respondent whom he did not find in the matrimonial home left behind- in the note she indicated where the appellant could find the key of the door to the house but asked him not to “look for her”. There had been no quarrel immediately preceding this conduct of the respondent and appellant was therefore very worried; moreover the second child of the marriage was at the time only three months old. About one week later, one Mr Akinsete (P.W.4) found the respondent and persuaded her to return to the matrimonial home. Thereafter the respondent frequently nagged the appellant during the night in spite of all efforts by the appellant to convince her that her belief in his illicit association with other women was unjustified. The situation continued when they returned to Nigeria in March, 1957, and the appellant who was in consequence quite often tired in the mornings broke down in health from time to time.

On their return to Nigeria, the respondent who qualified as a nurse was the first to obtain permanent employment, as a nursing sister, with the Government of Western Region and was later transferred to Akure while the appellant was employed on a temporary basis, as a ‘mechanic’ with the `Motors Department’ of Messrs S.C.O.A. in Lagos. There were now two children of the marriage, one of whom was under a year and both of whom needed the care of the respondent; although the appellant objected to her transfer to Akure, the respondent left in August, 1957 for Akure from where she was subsequently transferred to Ibadan. Later, the appellant took the children to Ibadan occasionally to see the respondent. On one such visit in January, 1958, he arrived in the night but the respondent was not in the house. She returned very late that night with a female friend; appellant asked why she stayed out so late and a violent disagreement followed; the respondent poured invectives on him, called him a “bloody mechanic” and asked him not to call on her any more.

She soon drove away in a car to the police station where she lodged a complaint; later the appellant was sent for by the police who after asking him a few questions allowed him to go and he returned to Lagos that night in a taxicab. Appellant said he was both annoyed and worried and also felt ashamed at the conduct of the respondent. In March, 1958, the appellant was employed in the Nigeria Police as an Assistant Superintendent of Police and later at the request of a brother of the respondent he went to Ibadan where his disagreement with the wife (respondent) was resolved. In May, 1958, the appellant was transferred to Ibadan and he and the respondent lived together once more; the era of peace was shortlived for trouble soon started.

In September, 1958, however, the appellant was transferred to Benin and sometime later he came to Ibadan on duty and as he was about to return to Benin the respondent met him at a petrol station in Lebanon Street and accused him of planning to go to Benin with another woman; although he did his best to convince her that her suspicion was unjustified the respondent created a scene and a number of people gathered to listen to her. Appellant left for Benin eventually but he was so annoyed and worried that he suffered temporarily from loss of full control of his mind and sustained an accident along Akure/Owo Road while driving back to Benin in his car that day. On another occasion during a party arranged at Benin for the appellant who was being transferred to Warri, the respondent broke through a line of dancing couples to attack a lady who was dancing with the appellant whom she accused of dancing “too closely” with this lady and the party ended abruptly.

Thereafter appellant and respondent lived in Warri and later again at Ibadan but the respondent continued to be difficult and nagged the appellant during the night. The respondent underwent a surgical operation in an Ibadan hospital in 1961 and in February, 1961-shortly after his return from the hospital-he came home one evening at 7 p.m. to find that the respondent was not at home. At midnight the respondent had still not returned and the appellant locked the door. Later, respondent returned and knocked at the door and appellant asked her to go back to wherever she had been all night; respondent drove away in her car but came back an hour later in the company of one Akinyemi who pleaded with the appellant and respondent was eventually allowed to enter the house.

On entering, she went straight to her room, removed some of her clothes, and despite the warning given her by the appellant that if she left the house again that night she would not return to it, the respondent again drove away in her car leaving behind a child 8 months old (the 3rd child of the marriage) and remained away from the matrimonial home for two nights. Thereafter appellant had no sexual intercourse with the respondent. Shortly after, appellant was transferred to Ife in 1962; while there the respondent informed him by telephone in February, 1962, that she had obtained a government scholarship to study in Western Germany. Appellant objected to her going to Germany and warned her that if she did in the face of the objection she would not return to the matrimonial home again. In July, 1962, the respondent went to Germany and the appellant presented the petition for divorce.

In a discretion statement (Exhibit C) appellant disclosed that following the cruelty meted to him by the respondent who left for Germany he “formed a relationship” with another woman with whom he later committed adultery and who now has a child for him, and he asked the court to exercise its discretion in his favour.

The respondent denied all allegations of cruelty and accused the appellant of adultery with various women whose names she did not give and whom she did not make parties to the proceedings. The learned trial judge described the respondent as untruthful and while rejecting her evidence accepted that of the appellant. However, he held that the facts given in evidence in support of the petition did not amount to cruelty and although he found that the appellant objected to the departure of the respondent to Germany in 1962, he held that his objection was “unreasonable.” Further he held that the, discretion statement filed by the appellant was not sufficiently frank and that he did not come to court with “clean hands,” and he dismissed the petition. Parts of the judgment read-

“Comparing the evidence of the husband and wife generally I find that the husband’s version of their two conflicting stories is the more probable one because some of the details narrated by him were corroborated by independent witnesses. The wife, in my opinion, is not a truthful witness and since she called no witness, I cannot place much reliance on her testimony, where it stands alone.”

On the issue of cruelty, the learned judge observed-

“But the question I have to resolve is, assuming that I accept the husband’s evidence, do the allegations made by him amount to cruelty? …’ Legal cruelty may be ‘defined as conduct of such a character as to have caused ‘danger to life, limb or health or to give rise

Other Citation: (1966) LCN/1354(SC)

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