Akinola Adaramaja V. Catherine Adaramaja (1962)

LawGlobal-Hub Lead Judgment Report

TAYLOR, F.J

The appellant filed a petition in the Divorce Registry of the High Court of Ibadan seeking the exercise of the Court’s discretion in his favour by decreeing that the marriage solemnized between himself and the respondent on the 24th day of March, 1956 be dissolved, and that he be awarded the custody of the two issues of the marriage.

The grounds on which the exercise of the Court’s discretion is sought are two fold, to wit:-

That the respondent has been guilty of cruelty towards the petitioner, and

That the acts of the respondent had conduced to the adultery of the petitioner with the “woman-named” in the Discretion Statement.

At the hearing of the petition, the petitioner gave evidence and called two witnesses in support of the petition. The respondent, on the other hand, did not appear in person at the hearing, being in the United Kingdom, and no evidence was offered on her behalf. The learned trial Judge dismissed the petition for reasons which will shortly become apparent. Against this dismissal, the petitioner has appealed and filed six grounds of appeal in support thereof. Mr. Ayoola’s arguments on behalf of the petitioner are as follows:-

1. That the learned trial Judge did not disbelieve the evidence called in support of the petition.

2. That in exonerating the respondent from the alleged acts of cruelty on account of her being in a state of pregnancy, the trial Judge was in effect setting up an answer or defence which was not set up by the respondent at the hearing, and In respect of which evidence was not adduced.

3. That the trial Judge did not exercise his discretion judicially by rejecting the prayer of the petitioner.

Mr. Omotosho, on the other hand, contended that the evidence of the petitioner was rejected by the trial Judge and that this Court ought not, in its appellate jurisdiction, to Interfere with the findings of fact and decision of the trial Judge. He referred to the following passages in the judgment of the trial Judge in support of his argument that the case for the petitioner was rejected; where the trial Judge said that:

In trying to prove his case, he has indulged, maybe unintentionally, in a number of obvious embellishments.

Stopping there for a moment to comment, it should be mentioned that nowhere in the judgment of the trial Judge has he set out what parts of the evidence he accepts as devoid of embellishments and what he deems to have been the fictitious additions, and I regret to say that in the absence of that it is impossible for an appellate Court to see any “obvious” embellishments in the record. The other passage to which our attention was drawn appears a little lower down, where the trial Judge says this:

Even if the evidence of the petitioner can be accepted I am still not convinced that the altercations referred to amount to such persistent acts of cruelty as would justify the dissolution of the marriage.

The way I read this is that the trial Judge was of the view that whether the facts relied on by the petitioner be false or true, they were not sufficient to justify an order for a dissolution of the marriage. In short then, he did not in the passage reject or accept the evidence. But a little lower down he says this:-