Faustina Ekinadose Oviasu V. Dr. Victor Ogumumwen Oviasu & Anor (1973)
LawGlobal-Hub Lead Judgment Report
S. SOWEMIMO, J.S.C.
This appeal is against the judgment of the Benin High Court in Suit No. B/23/70, dismissing a petition for dissolution of marriage by the petitioner now the appellant before us against the 1st respondent, who is the respondent to this appeal. The judgment was delivered on the 31st of March, 1971.
According to the learned trial Judge, the petitioner prayed for the dissolution of the marriage between herself and the 1st respondent on three grounds, namely:-
(a) Adultery by the 1st respondent with the 2nd respondent and other women;
(b) Cruelty; and
(c) Desertion.
The learned trial Judge in his judgment dissolved the marriage, however, on a prayer by the 1st respondent on the ground of desertion by the petitioner. This prayer was supposed to be contained in the answer filed by the 1st respondent.
The appeal before us is against both decisions. There were six grounds of appeal filed and are as follows:-
“1. The learned trial Judge misdirected himself in law in failing to observe that Nigerian law in regard to the quantum of proof required to establish adultery, is not the same as in English law. Under Nigerian law, proof is established by the balance of probabilities on the evidence whilst in English law, there must be proof beyond reasonable doubt.
- The learned trial Judge erred in law and on the facts in holding that the 1st respondent has established a case of desertion against the petitioner, and that Exhibits C and D support such finding.
- The learned trial Judge erred in law in failing to observe that on the facts of the case and having regard to the relevant provisions of the Matrimonial Causes Decree 1970, it was erroneous to have issued a decree on dissolution of marriage based on the petition of the 1st respondent.
- The learned trial Judge exercised his discretionary jurisdiction wrongly in awarding custody of the children to the 1st respondent.
- The award of custody of the children of the marriage to the 1st respondent is unreasonable having regard to the facts and circumstances of this case, and in particular, the age of the children aforesaid.
- Judgment is against the weight of evidence.”
The petition is set out in 21 paragraphs. A supplemental petition containing 15 paragraphs was also filed. The answer to the petition contained 48 paragraphs. A supplemental answer of 10 paragraphs was later filed. The evidence of the petitioner covered 42 pages of the record of proceedings. The petitioner called 5 witnesses in support of her case. The 1st respondent’s defence is contained in 24 pages of the record of proceedings. The 1st respondent called a witness in support of his defence.
In his judgment, the learned trial Judge pointed out that because the counsel for both parties did not know of the promulgation of the Matrimonial Causes Decree 1970, when the original petition and answer were filed, he had to grant them leave to file a supplemental petition and a supplemental answer. Both parties then took advantage of this, and inserted an additional ground for the dissolution of the marriage on the ground that it had irretrievately broken down. The learned trial Judge after dealing with the grounds on which either party had prayed for the dissolution of their marriage, proceeded thus in his judgment:-
“The bulk of the testimony charging the 1st respondent with adultery revolves around the person of the 2nd respondent, and it is clear that notwithstanding the volume of the testimony aforesaid no admissible evidence in proof of the adultery can be found anywhere in the record of this case. I do not therefore propose to engage myself in the time consuming exercise of setting out in detail what the testimony is on the question of the alleged adultery committed by the 1st respondent with the 2nd respondent.
The following dicta in the case of BASTABLE v. BASTABLE (1968) 3 AELR page 701 set out in clear terms what is the burden of proof in a charge of adultery:- “Whatever the popular view may be, it remains true to say that in the eyes of the law the commission of adultery is a serious matrimonial offence. It follows that a high standard of proof is required in order to satisfy the court that the offence has been committed. The standard of proof is higher than that on the ordinary balance of probabilities between plaintiff and defendant.” (underlining is ours).
The above is the learned trial Judge’s decision on the issue of adultery. No mention was made as to petitioner’s evidence that he confronted the 1st respondent with the allegation and his subsequent reactions, especially the visits to the relatives of 2nd respondent. Dr. Ediele’s evidence, which supports the charge of adultery, also was not properly considered and evaluated.
After referring to the provisions of Section 15(c) and Section 16 of the Matrimonial Causes Decree 1970, the learned trial Judge had this to say on the issue of cruelty:-“This must be so because under the Decree cruelty by itself is no longer a ground for dissolution. It must be cruelty as expanded by Section 16 of the Decree and not otherwise. Even if I were to consider cruelty as a ground under the law as it stood before the promulgation of the Decree, I have my doubts as to whether the petitioner could have made out a case of cruelty in law.” (underlining is ours). With respect, we wish to point out that the learned trial Judge did not resolve the issue joined in respect of desertion and evaluate the evidence of both parties. The learned trial Judge having decided to reject the petitioner’s evidence outright, and without any evaluation, as being untrue, then proceeded to examine such evidence as he considered were against the petitioner and in support of the 1st respondent’s case. He even used some of the letters written by a Solicitor demanding that petitioner be allowed back to the matrimonial home after forcible ejection therefrom as supporting the 1st respondent’s evidence. Even where the parties are agreed as to the incidents leading to the events of 2/6/71, which forced the petitioner to leave the matrimonial home, this was also dis-believed. We thought that if Dr. Anyaru’s evidence had been objectively considered the learned trial Judge might not have come to the conclusion which he did. There was evidence, uncontradicted and unchallenged, about efforts made by the petitioner and her witnesses to plead with the 1st respondent to allow the petitioner to return to the matrimonial home. In spite of this however, the learned trial Judge held as follows:- “The petitioner did not impress me as a witness of truth and the vital aspect of her testimony in proof of cruelty did not have the support of Dr. Anyaru about whose testimony more will be said later on. The only remaining ground is desertion and I shall deal with this at length because of its importance. It would appear that this marriage from its inception in 1965 progressed on an even keel until about March, 1969. Thereafter it had a stormy passage through the months of March, April, May until the 2nd of June, 1969 when the petitioner according to her, was forcibly ejected from the matrimonial home. The forcible ejection is denied by the 1st respondent who alleged that it was the petitioner herself who voluntarily withdrew herself from the matrimonial home thereby bringing cohabitation to an end. During the stormy period hereinbefore described at least three attempts were made to resolve the misunderstanding between the petitioner and her husband. If indeed it was the 1st respondent who forcibly ejected the petitioner from the matrimonial home, then in that case the 1st respondent would have been in desertion as from the date of the eviction aforesaid. Surely this aspect of her case should not have been lightly glossed over. But what is the true position In order to determine whether the version deposed to by the petitioner is to be preferred to that deposed to by the 1st respondent, some guidance can be obtained from Exhibits C and D in this case, the said exhibits being letters written by one Tunde Alaka, a Solicitor admittedly acting on the instructions of the parents of the petitioner. In Exhibit C the following passage occurs:-
“The development following the quarrel you had with your wife is what came as a shock to our client. As soon as by your own conduct you forced your wife out of your matrimonial home you began to spread it about that you treated her father for tuberculosis” Again in Exhibit D the following passage occurs: “From the facts and documents at our disposal, it would appear that after you have by your aggressive conduct and cruelty forced your wife to leave the matrimonial home proceeded forcibly to deprive her of the custody of the two children of the marriage.”
“From the above, it would be idle to persist with the view which the petitioner had sought to urge upon the court and after giving careful consideration to the totality of the evidence on this aspect of the case, I have come to the conclusion that the 1st respondent’s version as to how the petitioner came to leave the matrimonial home as to be preferred to that put forward by the petitioner herself.
I am satisfied and find that the petitioner having failed in her several endeavours to bring the 1st respondent under her thumb, voluntarily moved out of the matrimonial home with the intention of bringing cohabitation permanently to an end. I find also that the petitioner had no justification for this withdrawal from cohabitation.” (underlining is ours). It is quite clear from the above conclusions of the learned trial Judge, that he had failed to evaluate the evidence before him properly. The petitioner had set out clearly in all the paragraphs of her petition, the averments by which she intended to prove the matrimonial offences committed by the respondent. She led evidence on each. Nothing was said about this. All that 1st respondent averred in his answer was a general traverse. Some of the facts proffered by the petitioner were never challenged under cross-examination. None of the witnesses called by her were challenged under cross-examination on the relevant matters deposed to by them. Indeed if the petition and supplemental petition had been properly considered along with the answer and its supplement, and the evidence led evaluated, the learned trial Judge might have resolved the matters on which issues have been joined and upon which a judicial decision was required in a different manner. This was never done. This point itself would have been sufficient to dispose of this appeal. In view, however, of the conclusions we have reached in this appeal, and the order which we propose to make, we do not intend to engage ourselves in setting out such issues, upon which the parties on their pleadings require a judicial decision. There is another matter concerning practice and procedure which calls for comment. The hearing of this matrimonial case took place in the Judge’s Chambers. Neither the counsel nor the parties requested for the hearing of the divorce proceedings “in camera”. A judge’s chamber is not a court hall to which the public will normally have any right of access. The petition and answer did not contain such matters, which by law, ought to be heard “in camera” in a court room. But surely the law is no respecter of persons. Divorce proceedings, no doubt, presents a veritable ground for scandal peddlers. There are, however, legal processes by which such situations are controlled and the persons concerned protected. It is of the essence of justice that it should not only be done but that it should be seen to be actually done. Any act of secrecy, however desirable it might seem, detract from the aura of impartiality, independence, publicity and unqualified respect which enshrouds “justice given without fair or favour.” Its acceptance by the public at large, and the confidence it demands depend on these aura being strictly adhered to. These attributes have been considered so fundamental that they are enshrined in our constitution.
Section 22 subsections 1 and 3 of the Constitution of the Federation provides:- “22 (1) In the determination of his civil rights and obligations a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality: (proviso to this subsection is not relevant).
“(3) The proceedings of a Court or the proceedings of any tribunal relating to the matter mentioned in subsection (1) of this Section (including the announcement of the decision of the court or tribunal) shall be held in public.
PROVIDED that:- (a) a court or such tribunal may exclude from its proceedings person other than the parties thereto in the interest of defence, public safety, public order, public morality, the welfare of persons who have not attained the age of twenty-one years, the protection of the private lives of the parties or to such extent as it may consider necessary by reason of special circumstances in which publicity would be contrary to the interests of justice; and
(b) (this subsection is not relevant and the matter in issue)”
We wish to refer to Order 25 Rule 3 of the High Court (Civil Procedure) Rules of the Western Region of Nigeria 1959, which is applicable in the Mid – Western State provides:- “The sittings of the High Court for the hearing of cases shall ordinarily be held in public but the court may for special reasons hear any particular for case or matter in the presence only of the parties, with the legal advisers, if any, and the officers of court.”
The term “the court” as defined in the Rules means “the High Court of the Western Region of Nigeria and includes the Chief Justice and judges thereof sitting together or separately.”
These provisions of our constitution and law are clear. The principle of publicity of court hearing was examined in the case of MCPHERSON v. MACPHERSON (1936) AC 177 at page 220 where Lord Blanesburgh in delivering the judgment of the Privy Council had this to say:-
“But, even although it emerges in the last analysis that their actual exclusion resulted only from that word “private” an ouster door, the learned Judge on this occasion, albeit unconsciously, was, their Lordships think, denying his court to the public in breach of their right to be present, a right thus expressed by Lord Halsbury in Scott v. Scott (2): “Every Court of Justice is open to every subject of the King.” “To this rule, there are, it need hardly to be stated, certain strictly defined exceptions. Applications properly made in chambers, and infant cases, may be particularized. But publicity is the authentic hall-mark of judicial as distinct from administrative procedure, and it can be safely hazarded that the trial of a divorce suit, a suit not entertained by the old Ecclesiastical Courts at all, is not within any exception.
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So long as divorce, in contrast with marriage, is not permitted to be a matter of agreement between parties, the public at large – their Lordships are not now referring to the prurient minded among them who revel in the unsavoury details of many such cases – but the public at large are directly interested in them, affecting as they do, not only the status of the two individuals immediately concerned but, not remotely when taken in the mass, the entire social structure and the preservation of a wholesome family life throughout the community.
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And there is, perhaps no available way to correct these tendencies more effectively than to require that the trial of these cases shall always take place, and in the fullest sense, in open court. This requirement must be insisted upon because there is no class of case in which the desire of parties to avoid publicity is more widespread. There is no class of case in which in particular circumstances, it can be so clearly demonstrated even to a Judge that privacy in that instance would be both harmless and merciful. Again, publicity goes far to prevent the trial of these actions, where one is superficially so much like another, from becoming stereotyped and standardized, so that the ability to dispose of them with a minimum expenditure of judicial time is even now, apparently, regarded in some quarters as the convincing test of judicial efficiency.
Moreover, the potential presence of the public almost necessarily invests the proceedings with some degree of formality. And formality is, perhaps the only available substitute for the solemnity by which, ideally at all events, such proceedings, especially where the welfare of children is involved, should be characterised. That potential presence is at least some guarantee that there shall be a certain decorum of procedure. If at other public sittings of the court it is the rule for both judge and counsel to be robed, it is pessimi exempli that for the trial of an undefended divorce case the gown of ceremony should be discarded.
These are some of the considerations which have led their Lordships to take a more serious view of the absence of the public from the trial of this divorce action than has obtained in the courts below. Influenced by them, their Lordships have felt impelled to regard the inroad upon the rule of publicity made in this instance – unconscious though it was – as one not to be justified, and now that it has been disclosed, as one that must be condemned so that it shall not again be permitted.” The hearing of this divorce case in the chambers of the learned trial judge was not made a specific issue in the grounds of appeal filed before us, but during the arguments however, our attention was drawn to it by learned counsel for appellant as being irregular. As the counsel for the respondent did not apply for the hearing of the case in chambers there was nothing he could say. On the record it seems that the decision to take the case in chambers was the decision of the learned trial judge himself. We regard the irregularity as being fundamental; which touches the legality of the whole proceedings including the judgment and the incidental orders made thereafter. We therefore hold that all that happened in the Judge’s chambers did not constitute a regular hearing of an action in a court.
In view of the conclusions we have reached, we do not think any useful purpose will be served in examining the points canvassed before us. The trial held in the chambers of the judge is not in accordance with the law and we shall therefore set aside the judgment and orders made by the trial Judge.
In order to avoid future pitfalls we wish to emphasis that the provisions of the Matrimonial Causes Decree 1970 govern Matrimonial Causes in Nigeria. There is for example, provision for standards of proof – see Section 82 et seq – and English decisions should no longer be cited as authorities in construing provisions of our law dealing with standard of proof. The (Provisions) of the Matrimonial Causes Decree are clear and can be easily construed under the known and settled principle or canons of construction.
For reasons which we had earlier on given, the appeal in this case succeeds and it is allowed. The judgment of the Benin High Court in Suit B23/70 is hereby set aside. The order for custody of the two children is also set aside. We hereby order a trial de novo in conforming with the relevant provisions of the High Court (Civil Procedure) Rules and the Constitutions of the Federation (relevant) to which we had earlier referred.
The appellant will be awarded the costs in this appeal which we assess at 284 Naira.
SC.264/1970
