1969-LCER-522-SC
Other Citations
IN THE SUPREME COURT OF NIGERIA
Friday, December 12, 1969
SC. 190/1968
Before Their Lordships
ADEMOLA, CHIEF JUSTICE, NIGERIA
UDOMA, JUSTICE, SUPREME COURT
FATAYI WILLIAMS, JUSTICE, SUPREME COURT
Between
ADENIRAN AYODELE OJO
Appellant
And
MODUPE OLUFUNMILAYO OJO
Respondent
FATAYI-WILLIAMS, J.S.C. (Delivering the judgment of the Court): In Suit No. HD/41/66 filed in the High Court of Lagos, the petitioner (now appellant) filed a petition against the respondent praying for the dissolution of their marriage on the grounds of adultery, desertion and cruelty. He also prayed that he might be granted custody of the children of the marriage. The respondent, in her answer to the petition, denied the allegations of adultery, desertion and cruelty and also cross-petitioned for the dissolution of the marriage but only on the grounds of desertion and cruelty. She also prayed that she might be granted the custody of the children. One Bola Lawal, the person cited as co-respondent by the petitioner filed a memorandum of appearance but filed no answer and took no part in the proceedings.
On 11th May, 1967, the date on which both the petition and the cross-petition were set down for hearing, the petitioner indicated to the Court that he could not go on with his petition in the absence of his counsel who was then not in court. The learned trial judge there and then struck out the petition and proceeded thereafter to hear the cross-petition.
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In support of her allegation of cruelty, the respondent gave various instances when she was beaten up by the petitioner. On 3rd October, 1962, when she objected to the late nights which he kept, the petitioner beat her up and neighbours had come to her aid. On 1st April, 1963, when she tack-led him about some purported love letters written to him by girl-friends, the petitioner again beat her up with the buckle of his belt and a stick as a result of which she shouted for help. Her sister Titilola Olawoye who was staying with them was present. When neighbours came in because of her shouting, the petitioner drove them out. She sustained bruises on her lip, face and arms as a result of being beaten up that day. Again on 27th July, 1963, the petitioner came home drunk at midnight. He lost his temper with her because she was pregnant and instructed their houseboy to throw out her belongings. About this particular incident she testified further as follows:-
“He tried to throw me out from the window on the 1st floor where we lived. He pushed me about the room, tore my clothes and I raised alarm. Neighbours came to my help and I left the house. Since then I had not returned to the petitioner”.
On another occasion on 30th May, 1964, the petitioner went to her room at No. 98 Brickfield Road, Ebute-Metta, where she had moved to when she left the matrimonial home, on the pretext of apologising for his behaviour. He tried to have sexual intercourse with her but she refused. In the struggle which ensued, she sustained injuries on the head and in the jaw and had to be treated by one Dr. Aina who she alleged, had since left for the then Eastern Region. As to their relationship thereafter, the respondent testified as follows:-
“It is more than three years since I left the matrimonial home. He continued molesting me in my room, but I always warded him away. He sent me some letters through my son. I am familiar with his hand-writing. He wrote some letters after I had left the matrimonial home but he did not mend his ways. He continued to visit me and I became pregnant again and was delivered of a child on 26th December, 1965. My husband is the father of all my children.”
Finally, the respondent asked the court for the custody of the children of the marriage on the ground that as a welfare officer she was in a position to take good care of them. Under cross-examination by the petitioner himself, the respondent stated that the petitioner forced her to have sexual inter-course with him and that it was this that resulted in the pregnancy. She also insisted that it was the husband who drove her out of the matrimonial home.
In his defence, the petitioner denied the charge of cruelty. He also denied all the other allegations made against him by the respondent.
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The judgment delivered on the same day of the hearing on 11th May, 1967, is brief and reads as follows:-
“I am satisfied on the evidence of the respondent whom I believe against the denials of the petitioner that he treated her with cruelty and forced her out of the matrimonial home.
From his demeanour in the witness box, I am satisfied that the petitioner is a person who has no regard for the oath he had taken. He appears not sober in the witness box.
On the details of the evidence of the respondent I Find proved against the petitioner, the matrimonial offences of cruelty, desertion and adultery to which the petitioner himself had pleaded.
I pronounce in favour of the respondent a dissolution of the marriage, enter a decree nisi to be made absolute three months hence, grant custody of the four children to the respondent and the “petitioner to pay 25 guineas costs in which the 15 guineas costs previously awarded is included”
The petitioner has now appealed against this judgment. His main com-plaints, as ventilated by Mr. Lardner on his behalf, are these. The respondent offered no direct or circumstantial evidence of adultery. As for the charges of cruelty, the learned trial judge failed to direct himself that corroboration was necessary and should have been looked for, having regard to the circumstances of the case and in particular to the fact that the respondent herself had testified that there was at least a witness to each act of cruelty.
There was also the probability, judging from the evidence, that each of the matrimonial offences had later been condoned by the respondent. Finally, Mr. Lardner complained that the trial judge was wrong in law in granting the custody of the children of the marriage to the respondent.
In considering the complaints of learned counsel for the petitioner, we must observe that the only matter before the trial court, after the petition had been struck out, was the respondent’s cross-petition in which she complained only of cruelty and constructive desertion in that it was the petitioner who threw her out of the matrimonial home. She made no allegation of adultery against the petitioner. Therefore, the “love-letters” as evidence of adultery should not have been admitted. In any case, we are clearly of the view that adultery could not be inferred from the contents of any of them and the learned trial judge was therefore in error in finding the allegation of adultery proved.
As for the charge of cruelty, we think the learned trial judge should have considered the need for the corroboration of the respondent’s story. The respondent gave four instances of cruel conduct by the petitioner. The first was on 3rd October, 1962 when, according to her testimony, she was beaten up so severely that the neighbours had to come to her help and she had to spend the night in the house of one of those neighbours. Yet, none of these neighbours, not even the one who gave her shelter for the night was called to confirm her story which the petitioner categorically denied. The second was on 1st April, 1963, when the petitioner was supposed to have beaten her up with the buckle of his belt and with a stick in the presence of one TitilolaOlawoye, the respondent’s own sister.
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Considering the difference between this testimony and the averment in paragraph 10 (c) of her cross-petition (the whole of which she swore to as true in her supporting affidavit), that:
“in April, 1963 with intent to cause the respondent severe bodily harm, the petitioner in a fit of anger and uncontrollable passion bit the respondent on the lower lip and inflicted severe bruises on the respondent’s face and arms”.
the need to call Titilola Olawoye to confirm her sworn testimony seems to us indisputable.
The third instance was on 27th July, 1963, about which she said the petitioner instructed the houseboy to throw out her belongings and that the neighbours again came to her rescue. The necessity for calling at least one of the neighbours if not the houseboy is all the more glaring when this testimony is contrasted with the averment in paragraph I1 of her cross-petition. There, she said that in addition to throwing out her belongings, the petitioner gave her another “severe beating that the police had to intervene”. It is significant that nothing was said about the intervention of the police in her testimony about this incident. The last incident was on 30th May, 1964. According to the respondent, the petitioner visited her in her one room at 98, Brickfield Road, Ebute-Metta, under the pretext of apologising for his behaviour but tried instead to have sexual intercourse with her and she refused. In the struggle which followed, she sustained injuries on the head and in the jaw and was treated by one Dr. Aina who she said was, at the time she gave evidence, in Eastern Nigeria.
With respect to this same incident, she pleaded in paragraphs 12 and 13 of her cross-petition that the petitioner gave her “a severe beating resulting in a fractured jaw and the respondent had to be taken to the hospital.
That the neighbours invited the police and the latter was about to press charges when my relatives stepped in and effected reconciliation. The petitioner was accordingly bound over by the police to keep peace”.
One is bound to ask why none of her neighbours who witnessed this incident and her relations who intervened was called to confirm her story particularly as she has again left out that portion about the police and the visit to the hospital.
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The same need for corroboration applies also to the evidence in support of the charge of constructive desertion. Although she testified that she was thrown out of the matrimonial home by the petitioner on 27th July, 1963 and had not returned there since, she stated further that he wrote her letters after she had left the matrimonial home but did not mend his ways. He continued to visit her and she became pregnant again and was delivered of a child of whom he is the father on the 26th December, 1965. This testimony is more illuminating when compared with her averment in paragraph 2 of her cross-petition which reads:-
“That it is true that the respondent was pregnant but that the pregnancy was as a result of one of the several sexual relationship between the petitioner and the respondent while reconciliation was being effected.
That as a result of the pregnancy above referred to a baby girl was born to the petitioner on the 26th of December, 1965′.
How could the respondent talk convincingly of desertion with the admission of these “goings on” at Brickfield Road? Since it may well be, having regard to the circumstances, that the move there was no more than mere temporary physical separation of the spouses, the learned trial judge should have approached the evidence in support of the allegation of constructive desertion with caution and looked for other evidence to confirm the respondent’s story particularly as to the circumstances and terms of the parting.
The significance of the differences between the facts verified by affidavit by the respondent in her answer and her testimony in support in court can be appreciated by reference to the following observation of Hodson, L. J., in Corfe v. Corfe [1960] All E. R. 593 at p. 594:-
“… although the respondent did not give any evidence-in-chief of her own denial of adultery, she had, in answer to the petition for divorce, sworn an affidavit verifying the denial of adultery, and that, to my mind, is evidence `in the proceedings’, so that the statute is not contravened. I should read the provision, which is sub-section (3) of section 32 of the Matrimonial Causes Act, 1950:-
‘The parties to any proceedings instituted in consequence of adultery and the husbands and wives of the parties shall be competent to give evidence in the proceedings, but no witness in any such proceedings, whether a party thereto or not, shall be liable to be asked or be bound to answer any question tending to show that he or she has been guilty of adultery unless he or she has already given evidence in the same proceedings in disproof of the alleged adultery”.
The wife, having sworn the affidavit, had given evidence in the same proceedings denying the adultery”.
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We are well aware that corroboration of the respondent’s evidence in sup-port of her cross-petition is probably not required as an absolute rule of law. As a matter of practice, however, the court, where the circumstances of the case make it desirable, will require corroboration unless the absence of corroborating witnesses, particularly where they are named, or identifiable as in the instant case, can be satisfactorily accounted for. We must also observe that since the only witnesses called by either side were the spouses themselves, the decision must ultimately depend on the relative credibility of the two spouses as witnesses and the probabilities of the case. After considering all the circumstances of this case, we feel that the learned trial judge should have warned himself of the danger of accepting the respondent’s story without corroboration. Since he had not done so, we consider it unsafe to allow the order of the dissolution of the marriage to stand.
As for the order granting the custody of the children of the marriage to the respondent, made without due inquiry into the interest and welfare of such children, we will do no more than refer to the judgment of this Court in Apara v. Apara SC. 28/1968 delivered on 30th September, 1968, on the point. It reads:-
“We observe that very slight evidence was given at the trial about these matters and as this is not the first time an order relating to the custody of the children of a marriage is made peremptorily, we feel that attention of judges should be directed to the importance of this matter in divorce proceedings.
The point is amply dealt with by rule 33A (a) of the Matrimonial Causes Rules, 1957, which provides as follows:-
‘33A Where at the hearing of proceedings for divorce, nullity of marriage or judicial separation it appears that there is a child of the family who has not attained the age of sixteen years and:-
(a) the judge is satisfied as respects every such child that arrangements have been made for the care and upbringing of the child and that those arrangements are satisfactory or are the best which can be devised in the circumstances, or that it is impracticable for the party or parties appearing before the court to make any such arrangements…. there shall be entered in the court minutes a statement recording the matters in regard to which the judge is satisfied under paragraph (a) of this rule ……’
The matter of the custody of the children of a broken marriage is important to the parties as well as to the community and not only should this be argued in court but judges should in appropriate cases retire into chambers and discuss this fully with counsel on both sides and their clients before making a final order in court. It should not be assumed that the successful party must have custody of the children or that he is the proper party to whom the care of the children of the marriage should be entrusted.”
This procedure, to our mind, has not been followed by the learned trial judge in the instant case. The order with respect to custody cannot, there-fore, be allowed to stand.
In the result, the appeal succeeds and the judgment of the learned trial judge in Suit No. HD/41/66 delivered in the Lagos High Court on 11th May, 1967, including the order both as to the custody of the children of the marriage and as to costs, is hereby set aside. Instead, we hereby order as follows:-
(1) that the cross-petition be dismissed and is hereby dismissed and that this shall be the order of the court; and
(2) that there shall be no order as to costs.
Appeal allowed: Judgment of High Court set aside: Cross-petition dismissed.
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