Stephen O. Akinyemi V Rosella A. Akinyemi (1963)
LawGlobal-Hub Lead Judgment Report
The appellant filed a petition against his wife in the court below praying for the dissolution of their marriage on the grounds of his wife’s adultery with the co-respondent and cruelty. The respondent cross-petitioned for the dissolution of the marriage on the same grounds of adultery and cruelty and cited one Clementine Ngori Usuma as the woman with whom her husband committed adultery. Both the petition and the cross-petition were dismissed by Mr. Justice Coker on the 18th day of August, 1961.
According to the evidence before the court below, the relationship between the two spouses at the material time had become very bad. Then, on the 28th May, 1960, the petitioner came to Lagos from Ibadan. On his arrival, he received certain information concerning his wife and, in consequence of it, started to look for her.
At about 1.30 a.m. he returned home to 39 Jebba Street, Ebute Metta, where his wife was living with his mother but found that his wife had still not returned home. At about 2.30 a.m. an Opel Kapitan saloon car drew up in front of the house and both the respondent and the co-respondent came out of it and walked towards the house. At the entrance to the house, the co-respondent embraced the respondent and kissed her. The appellant attacked the co-respondent and a fight ensued.
The petitioner’s witness, Comfort Taiwo, held the petitioner and took him into the house. She then went back outside and entreated the respondent to go into the house. According to the witness, the respondent was very drunk. She abused her husband, told him that she had had sexual intercourse with the co-respondent and said that he could please himself. The witness left the respondent because she was drunk but some four days later she called both the respondent and the petitioner together and advised the respondent to go back with her husband to Ibadan and consider the interest of their children. Both of them refused to come together again and the respondent said that she had already had five children by the petitioner and that she was going to have children for the corespondent.
We shall not deal with the evidence of both the petitioner and the respondent in respect of their counter-allegations of cruelty against each other, or the wife’s allegations of adultery against the husband because in the case of the petitioner he abandoned the ground of appeal dealing with cruelty and in the case of the respondent, because there is no cross-appeal by her against the decision and because the learned Judge found that even if the petitioner had been guilty of adultery the respondent had condoned.
Four other grounds of appeal were filed and argued by the petitioner/appellant and these are as follows:-
1. The decision is against the weight of evidence.
2. The learned Judge misdirected himself in law by not holding the admission of adultery by the respondent against her even though the said admission was accepted and believed by the learned Judge.
3. The learned Judge misdirected himself in law on the questions of familiarity and opportunity required to establish adultery and erred by holding on the evidence before him that no opportunity existed for adultery to be committed.
4. The learned Judge erred in law in dismissing the petition because both parties (i.e., the petitioner and the respondent) were at fault.
The co-respondent was represented at the hearing of this appeal but the respondent did not appear either in person or by counsel.
Before dealing with the arguments addressed to us, it will be useful to refer to some portions of the judgment of the learned Judge. They are as follows:
1. “The respondent was a very difficult witness and gave her evidence in an indifferent and nonchalant manner. I think the relationship between her and the co-respondent was of an entirely different nature from that described by her. Even if the co-respondent was a friend of her family that position is not inconsistent with the relationship described by the petitioner. I accept and prefer the evidence of Mrs Comfort Taiwo to the effect that she, respondent, was drunk when she returned back home on the night of the 28th May, 1960 and that she did utter the statements attributed to her by that old lady . I do not, however, propose to hold as against the respondent the statements made by her under the influence of alcohol or in the heat of passion as admissions of liability by her. I take the view that if she was cool and sober she would not have made any such statements.”
2. “There is, however, apart from the evidence of the respondent and the co-respondent no other evidence of their itinerary on the night of the 28th May, 1960 and immediately thereafter. They both said that they went to Chez Peter’s Hotel then to the Island Club and thereafter to the Rendezvous at Customs Street, Lagos. The sister-in-law of the respondent did not follow them to these latter places and although she was to meet them up at the Island Club she did not do so. I take the view that she was not expected to come back to them even if she had originally left the house with them. I do not think that she was ever in the company on that night. I am satisfied that the respondent and co respondent chose to go out together alone on that Saturday night and they did so. There is no clear evidence as to where they both went on that night. It seems to me unlikely that they had gone to the home of the co-respondent. For my part I do not accept the testimony of the respondent and co-respondent as to the places which they stated they had gone on that night. I think the story is a clever afterthought.
3. “Adultery is seldom capable of direct proof but in my view evidence must be forthcoming which will support an irresistible inference that adultery had been committed.”
4. “They both lied as to their itinerary that night. The embrace and kiss which occurred at Jebba Street that morning were hangovers from their escapades of the previous night.”
It is clear law that even if the learned Judge regarded as a confession the respondent’s statement as to her past adultery with the co-respondent and as to her future intention to have children for the co-respondent this would be evidence of confession of adultery by the respondent alone and would not be evidence against the co-respondent unless she made the statements in his presence and he acknowledged the truth of the statements by his conduct at the time the statements were made. But this is not the case because on both occasions in question the co-respondent was not present. Therefore the first extract from the judgment relates only to the charge of adultery against the respondent.
On the question of the weight to be attached to the confession, we disagree with the view of the learned Judge that because the respondent was drunk when she first admitted having committed adultery with the co-respondent that an admission made in such a condition although rightly admitted in evidence did not carry weight. Furthermore, even if the learned Judge thought that the first admission was made when the respondent was under the influence of alcohol what of her admission of adultery with the same man some four days later? Confessions of adultery are regarded with suspicion, in particular, in cases where the party making the confession desires a divorce. But it is our view that the respondent’s repetition of her confession of adultery some four days after her first admission of it as well as the events of the 28th May, 1960 as found by the learned Judge are sufficient corroboration to support a finding that the respondent was guilty of adultery.
We shall now consider the evidence before the Court below as against both the respondent and the co-respondent as well as the standard of proof required to support a finding of guilt in cases of adultery. The learned Judge stated in his judgment that, in order to prove adultery, familiarity as well as opportunity must be established, and found that there was clear evidence of familiarity. He stated, however, that the evidence in support of a finding of adultery must raise an irresistible inference that adultery had been committed and found that on the facts before him there was no evidence of opportunity.
The learned counsel for the co-respondent cited some authorities to us on the issue as to whether there was opportunity for the respondent and co-respondent to have committed adultery, and has asked us to hold that the learned Judge was right in deciding that there was none. He submitted further that in the circumstances of this case this court should not disturb the finding of fact made by the learned Judge to the effect that there was no opportunity for the respondent and the co-respondent to have committed adultery.
In respect of the second point made by the learned counsel for the co-respondent, we shall briefly refer to the following passage in Lord Thankerton’s speech in Watt (or Thomas) v. Thomas  A. C. 484 [at p. 487] as to the test to adopt:
“(I). Where a question of fact has been tried by a Judge without a jury, and there is no question of misdirection of himself by the Judge, an appellate court which is disposed to come to a different conclusion on the printed evidence, should not do so unless it is satisfied that any advantage enjoyed by the trial Judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial Judge’s conclusion;
(II). The appellate court may take the view that, without having seen or heard the witnesses, it is not in a position to come to any satisfactory conclusion on the printed evidence;
(III). The appellate court, either because the reasons given by the trial Judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate court.”
As regards the question of whether or not adultery was committed, we are of the opinion that the learned Judge was in error in his application of the standard of proof required to the facts found by him to have been proved. It has frequently been held that, as with all other matrimonial offences, the standard of proof required in respect of adultery is proof beyond reasonable doubt. But it has also been held that it is not necessary to adduce direct evidence, because, as it is rare to obtain direct evidence, there would be no protection for the wronged spouse if the rule were otherwise. (See Preston Jones v. Preston-Jones  A.C. 391 at p. 401; Woolf v. Woolf  P. 134 at p. 144).
In Farnham v. Farnham (1925) 41 T.L.R. 543 at p. 544, Lord Merrivale, P., said.
‘“The inference of adultery arises when there is proof of the disposition of parties to commit adultery together, with the opportunity for committing it.”
Lord Buckmaster said in Ross v. Ellison (or Ross)  A.C. 1, at p.7:-
”It is easy to suggest conditions which can leave no doubt that adultery has been committed, but the mere fact that people are thrown together in an environment which lends itself to the commission of the offence is not enough unless it can be shown by antecedent conduct that the association of the parties was so intimate and their mutual passion so clear that adultery might reasonably be assumed as the result of an opportunity for its occurrence.”
Lord Atkin at page 21 of the same judgment said:- “But from opportunities alone no inference of misconduct can fairly be drawn unless the conduct of the parties prior, contemporaneous, or subsequent justifies the inference that such feelings existed between the parties that opportunities if given would be used for misconduct.”
From the foregoing it will be seen that the fact that adultery has taken place is an inference from all the surrounding circumstances of each case. And such inference may be drawn from confessions, admissions, undue familiarity, suspicious circumstances and improper behaviour. For instance, in Roast v. Roast  P.8, 17, it was decided that for the purpose of ascertaining the truth, the court was entitled to consider whether the party alleged to be guilty of adultery was the author of a certain filthy literature found in her bag.
Therefore, if there is evidence of undue familiarity, suspicious circumstances, and improper behaviour, the court is entitled, upon a consideration of each particular case, to find as a fair inference that such behaviour leads as a necessary conclusion to adultery. (See Loveden v. Loveden 2 Hagg. Cons. 1, 2; Allen v. Allen  P. 248, 252). And where there is evidence of a guilty inclination or, in the words of the learned Judge in this case, clear evidence of familiarity, and this is coupled with evidence of opportunity, this is strong prima facie evidence of adultery.
As we have stated, the learned Judge found that there was clear evidence of familiarity but that there was not sufficient evidence of opportunity. With respect, we are unable to agree with him that a man who took a woman whom he knew to be another man’s wife away from home for about five hours during the hours of darkness, from about 9.30 p.m. till about 2.30 a.m., and whom he was found to be embracing and kissing near the door of the woman’s mother-in-law’s residence, had no opportunity of committing adultery with her.
And this in spite of the findings of the learned Judge that both the respondent and co-respondent lied as to their movements during the period of five hours when they were alone together, and that their embracing and kissing of each other was a hangover from what the two of them had been doing during the period they were alone together! For, as Denning, J., as he then was, said in Miller v. Minister of Pensions  2 All E.R. 373, in regard to proof beyond reasonable doubt:-
“It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt.
For the foregoing reasons we are of the opinion that the first, second and third grounds of appeal succeed. With regard to the fifth ground of appeal, we cannot find any authority in support of the view of the learned trial Judge that when both parties are at fault the petition must be dismissed. In the result we allow the appeal and set aside the decision of the court below and hereby grant the appellant a decree nisi. We decree that the marriage had and solemnized at the Marriage Registry in Lagos, Nigeria, on the 16th day of September, 1948 be dissolved by reason that on the 28th May, 1960 the respondent committed adultery with the co-respondent, Mr. Morris, unless sufficient cause be shown to the court below within three months from the making of this decree why it should not be made absolute. We hereby remit to the court below for determination the petitioner’s claim for custody of the children of the marriage.
OTHER CITATIONS: (1963) LCN/1034(SC)