Oyinlola Olufunke Obayemi V Samuel Adebayo Obayemi (1967) LLJR-SC

Oyinlola Olufunke Obayemi V Samuel Adebayo Obayemi (1967)

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LEWIS, J.S.C.

This is an appeal against the decision of Beckley J. in the Akure High Court on the 14th of December, 1965, granting the petitioner a decree nisi of divorce on the grounds of cruelty in respect of his marriage with the appellant on the 26th of December, 1957.

It appears from the records that on the 15th of March, 1966, of his own volition and without any request from the parties, the Divisional Registrar of the Akure High Court certified that the decree nisi was on the 15th of March, 1966, made final and absolute and that the marriage was thereby dissolved.

The Akure High Court in our view acted per incuriam in making the decree absolute on the 15th of March, 1966, because in fact, on the 26th of January, 1966, the appellant had filed Notice and Grounds of Appeal against the decree nisi and under Rule 40(1) of the Matrimonial Causes Rules, 1957, the Registrar is required to search and be satisfied that there is no appeal pending against the decree nisi before filing the return to make the decree absolute; this he clearly failed to do here.

Since the appellant had only appealed to us against the decree nisi we pointed out that as a decree absolute had been made, having regard to the decision in Woolfenden v. Woolfenden [1948] P.27, there should have been a motion to show cause why the decree absolute should not be treated as a nullity but we further indicated that if counsel so requested, and counsel for each of the parties did, we would, on the undertaking of Mr. Omotosho for the appellant to file an appropriate motion and pay any necessary fees, treat it as if the motion to set aside was before us and we accordingly set aside the decree absolute on that under-taking and the appeal on the decree nisi proceeded.

One of the witnesses called by the petitioner and who gave evidence of the appellant confessing to her that in a quarrel she had thrown her wedding ring at the petitioner was Mrs. Oguntoye, a Chief Magistrate, whom it was claimed the parties had approached to try and effect a reconciliation.

Mr. Omotosho submitted as one of his grounds of appeal that this occasion was privileged and there was an absolute bar, as a result, to evidence being given as to what then took place. He cited in support of his argument Theodoro-poulas v. Theodoropoulas [1963] 2 All E.R.772  as showing that any private individual’s attempts at reconciliation were equally with that of a probation officer’s attempts privileged and that accordingly Mrs. Oguntoye’s evidence should not have been admitted.

In the case cited, however, objection was taken by counsel for the wife to the admission of the evidence and it seems clear to us that the evidence of what took place at such a meeting to effect a reconciliation is not as such, as Mr. Omotosho submitted, inadmissible but it is privileged so that only if a party claims privilege does it then become inadmissible. If a party chooses not to claim privilege but to waive it then the evidence does become admissible as was shown by McTaggart v. McTaggart [1949] P.49  where Cohen L.J. at page 96 said–

“The privilege, if any, was the privilege of the parties and they, having given evidence on what was said at the interview, could not assert the privilege. The result is, none the less, unfortunate as the success of attempts at reconciliation might be prejudiced, if it became known that the probation officer could be called sub-sequently to give evidence, and I desire to make it clear that, as at present advised, I think that if objection had been taken by the wife to the husband giving evidence as to this issue the objection would have been valid. Such a conclusion seems to me to be within the principle that discussions and correspondence in negotiations if ‘without prejudice,’ are privileged, unless the parties waive the privilege.”

We accordingly see no substance in this ground of appeal and the evidence of Mrs. Oguntoye for what it was worth was properly admitted as no objection to her giving evidence was made by the appellant.

Another ground of appeal was-

“The learned trial judge erred in law in holding that “The enumeration of the law in Gollins v. Gollins has meant that most of the decided cases reported before this decision are not to be relied upon or as alternative in that they depend on wrong views as to the argument of intention.”

Mr. Omotosho objected to this passage because he submitted Gollins v. Gollins [1963] 3 W.L.R. 176 did not overrule most of the previous cases. We would note that the passage complained of seems in fact to have been taken by the learned trial judge, with the alteration of but one word, from Rayden on Divorce 9th Edition 129.

Be that as it may, it is not disputed that the House of Lords in Gollins v. Gollins made it clear that the proof of an intention to injure or proof that the conduct was aimed at the other spouse was not an essential requirement of cruelty but that without an intent to injure if the inexcusable conduct of one spouse knowing the damage he was doing reduced the other to ill-health then that conduct amounted to cruelty, whilst Williams v. Williams [1963] 3 W.L.R 215  to which Mr. Omotosho also referred established that the test of whether one spouse treated another with cruelty was wholely objective. Mr. Omotosho relied on Le Brocq v. Le Brocq [1964] 1 W.L.R. 1085 to establish, as was said there by Harman L.J. at page 1089 that–

“Cruel is not used in any esoteric or “divorce Court” sense of that word, but that the conduct complained of must be something which an ordinary man-or a jury: I suppose this court sits as a jury would describe as “cruel” if the story were fully told. There need not be blows. (There is no question here now of blows.) There need not be any physical force used (there can be words more harder than blows with a saucepan) but there must be something as to which a jury would be able to say, when they heard it related. “Well, that was cruel of him,” before a husband can be branded with the serious charge of being cruel to his wife.

The test therefore to be applied objectively is whether this wife has been cruel to this husband and this is only to be decided after all the facts had been taken into account. We agree with Mr. Omotosho that the cases that he cited help in showing how legal cruelty should be determined but we do not see that the learned trial judge misdirected himself in the passage com-plained of as Gollins v. Gollins certainly did overrule many previous decisions but it was not suggested that the whole of the law of cruelty in divorce is now to be found in that one case.

Mr. Omotosho submitted to us that it was open to either party to ask the court to grant a judicial separation rather than a divorce because one of the factors to be considered was the interests of the children. In support of his argument he cited Dove v. Dove [1963] P. 321 and Davies v. Davies [1956] P.212 but in each of these cases it was a successful wife petitioner who having obtained a decree nisi sought to have this rescinded and a decree of judicial separation substituted.

No authority was cited to us where an unsuccessful party has asked to have the decree nisi altered to one of judicial separation against the wishes of the successful petitioner and where judicial separation was not sought by that party or indeed by either of them. As a general principle there must be a prayer for judicial separation and if it is sought after hearing has commenced then there ought to be an  amendment.

It is only in exceptional cases that a judicial separation can be substituted for a decree nisi already granted and Karminski J. in Davies v. Davies [1956] P.212  at page 215 makes it clear that it is only when a successful petitioner makes the application that the court in its discretion will grant it as he said-

“Quite clearly, I think the court has a discretion in an application of this kind to grant or to refuse the application, though the discretion must, of course, be exercised judicially.”

Accordingly as no prayer for judicial separation was entered by either the appellant or the successful petitioner we do not consider that the appellant has any legal right to ask for it on appeal. Mr. Omotosho relying on Bull v. Bull [1965] 3 W.L.R. 1048 submitted there was still a discretion in the court to allow this but that case turned upon the failure of the wife to pray for the discretion of the court to be exercised in her favour in respect of her adultery and had nothing to do with a general inherent discretion.

We do however note that the learned trial judge himself fell into the error of thinking that there was a general discretion in the court to grant or refuse a divorce basing it on Blunt v. Blunt [1943] A.C.517 and Wickins v. Wickins [1918] P.265  but in our view he misunderstood the applicability of these cases as they turned upon the discretion of the court to grant a decree notwithstanding the misconduct, be it adultery as in Blunt v. Blunt or desertion in Wickins v. Wickins, of the petitioner.

Once a petitioner has made out his case on the grounds of adultery, desertion or cruelty then, unless he has committed misconduct, he is entitled to be granted the decree he asks for and as here it was never suggested that the petitioner had to seek the court’s discretion for his misconduct, no question of the court having discretion arose as the learned trial judge thought when he said-

“In petitions based on adultery, cruelty etc. the grant or refusal of a decree is at the discretion of the court.”

Other Citation: (1967) LCN/1480(SC)