Adeniran Ayodele Ojo Vs Modupe Olufunmilayo Ojo (1969)

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FATAYI-WILLIAMS, J.S.C.

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.

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. 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 cus-tody 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 Titilola Olawoye, the respondent’s own sister.

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

Other Citation: (1969) LCN/1637(SC)