Francis Ibezi Enekebe V. Christina Enekebe (1964)

LawGlobal-Hub Lead Judgment Report

BAIRAMIAN JSC 

In this appeal the husband, who is the petitioner in Suit K/46/61 of the High Court of Northern Nigeria (Kana Division), complains that his petition was wrongly dismissed.

He and his wife married in May, 1938. They lived in Kano, but they did not get on very well. She left in December, 1942; and they have lived apart since. In his amended petition he alleged adultery, cruelty on 12th December, 1950, and persistent nagging.

The trial Judge (Bate J.) did not think the adultery was proved; he regarded the assault in December, 1950 as trivial; he found, however, that the wife had been guilty of cruelty before leaving Kano, but he dismissed the petition on the ground of culpable delay.

The learned Judge asked the husband about the delay, and his answers were:- ‘Cannot say why I have taken so long to bring this Petition except that I gave my wife a long time to repent; i.e ., to change her vindictive habit. When she committed adultery, I gave up all hope of her ever repenting; i.e., in 1947 or 1948.’

After she left in December, 1942, he was not without company: he sent money to his brother in 1943 for another woman, and in 1949 he went home to Nkpor (near Onitsha) and paid for another woman; he lived with them both, and had children from each; he wanted to marry them, he said, by the Ibo native law and custom of Nkpor. In addressing the Court, his learned counsel dealt with delay; he mentioned the petitioners evidence, and cited Latey on Divorce (14th ed.) at p. 158 (paragraph 283-Delay must be culpable). There Binney v. Binney [1936] P. 178, is the latest of the cases cited. On discretion he cited Latey, p. 163, paragraph 296, which mentions Blunt v. Blunt [1943] A.C. 5 17.

The notes of counsels argument do not indicate that he asked the Judge to have regard to the principles in Blunt v. Blunt as a counterweight to culpable delay. A petitioner who is guilty of adultery must plead for the exercise of discretion in his favour; presumably it was in this connection that counsel cited paragraph 296 in Latey. Dealing with the delay in the presenting of the petition, Bate J. found it was culpable, and dismissed the petition.

The grounds of appeal complain that he misapplied the decision in Binney v. Binney, and that in dismissing the petition on the ground of undue delay he failed to direct his mind to the obvious breakdown of the marriage and the conditions of the portions [probably a mistake for parties] at the date of presentation of the appeal [probably a mistake for petition].

The argument is that in this case there were other factors-two women whom the husband would like to marry and make his union with them regular, and although their children would not be legitimised, it would look nicer for them too. The marriage had broken down and there was no prospect of reconciliation; and the balance in the interest of the community was to dissolve it. The principles in Blunt v. Blunt applied in spite of the delay. That was the argument.

The argument for the wife is that the learned Judge had regard to whatever was raised in evidence, and even if he did not mention the breakdown of the marriage, he no doubt had it in mind; that the Judge gave his reasons and his exercise of discretion should not be tampered with.

The judgement notes that for thirteen years or more after the husband had known of his wifes adultery and gave up hope of her giving up her vindictive habits, he did not petition for divorce, although he had already taken another woman after his wife left Kano in 1942, and another in 1949, and had children by them; that he could have petitioned for adultery and earlier still for cruelty, but did not till 1961; and the judgement goes on- ‘Although the petitioners wish to marry the women named in the discretion statement is no doubt laudable, his failure to take any steps for so many years after he claims to have heard of his wifes adultery and after the acts of cruelty amounts to acquiescence. His delay is culpable delay.

I am not without sympathy for the petitioner but, as was said in Binney v. Binney, personal sympathies are not a proper ground for exercising judicial discretion. I hesitate to debar the petitioner from relief but his delay is unexplained, unexcused and so long that, if I do not exercise my discretion to debar the petitioner in this case, I find it difficult to imagine circumstances where I could fairly and consistently do so.’

The relevant provision in the Matrimonial Causes Act, 1950, is in Section 4(2): ‘Provided that the court shall not be bound to pronounce a decree of divorce and may dismiss the petition if it finds that the petitioner has during the marriage been guilty of adultery or if, in the opinion of the court, the petitioner has been guilty- (i) of unreasonable delay in presenting or prosecuting the petition.’

That is intended to make a spouse diligent in presenting his or her petition, for it is in the public interest that he should be diligent; and a husband who is late in petitioning may well give ground for saying that he has acquiesced in the misconduct of his wife or is indifferent to the loss of her company. The present appellant was certainly indifferent: he had other company. It is true that in spite of unreasonable delay, the court may grant a divorce having regard to the considerations mentioned in Blunt v. Blunt, [ 1943] A.C. 517, which are, at p.525-

‘(a) the position and interest of any children of the marriage;

(b) the interest of the party with whom the petitioner has been guilty of misconduct, with special regard to the prospect of their future marriage;

(c) the question whether, if the marriage is not dissolved, there is a prospect of reconciliation between husband wife; and

(d) the interest of the petitioner, and, in particular, the interest that the petitioner should be able to remarry and live respectably.’

After giving those considerations (which had been stated in Wilson v. Wilson [1920] P. 20) Lord Simon went on to say in Blunt v. Blunt- ‘To these four considerations I would add a fifth of a more general character, which must, indeed, be regarded as of primary importance, namely, the interest of the community at large, to be judged by maintaining a true balance between respect for the binding sanctity of marriage and the social considerations which make it contrary to public policy to insist on the maintenance of a union which has utterly broken down.’

There was no question of delay in Blunt v. Blunt; there was (a) in Binney v. Binney (above), (b) in Purton v. Purton [1957] 1 W.L.R. 216, and (c) in England v. England [1961] 1 W.L.R. 608. From case (b) (at p. 218) it appears that cases of culpable delay in which a divorce is granted are rare; from cases (b) and (c) it appears that there may be reasons which, the delay notwithstanding, may make it desirable, in the light of Blunt v. Blunt, to exercise the discretion in favour of granting a divorce. One of the reasons advanced is that the marriage has broken down.

So it did in Binney v. Binney and the other two cases; so it does generally in any case of culpable delay; and if that could serve as a good reason to outweigh the delay, then delay would cease to be a bar, and the statutory provision that divorce may be refused on the ground of unreasonable delay would become a dead letter.

Although Bate, J. did not mention the breakdown of the marriage specifically when dealing with delay, it was doubtless present to his mind, as appears from perusal of his judgement; and it would be rash to assume that a careful judge of his experience failed to take it into account because towards the end of a long judgement he did not specifically mention it, particularly as he said he was in sympathy with the petitioner: (cf. Blunt v. Blunt, at bottom of p. 528).

The other reason advanced is that the husband would like to regularise his union with the two women living with him by marriage under native law and custom, and that it would look nice for the children too. The children would derive no advantage; that was conceded and was not pressed. As to the wives, whose interest was pressed, they and the petitioner have been content to live together as they have d

Other Citation: (1964) LCN/1158(SC)