Iyede Nwango Vs The Queen (1963)

LawGlobal-Hub Lead Judgment Report

MORGAN JSC

The appellant filed a petition against his wife in the court below praying for the dissolution of their marriage on the grounds of his wife’s adultery with the co-respondent and cruelty. The respondent cross-petitioned for the dissolution of the marriage on the same grounds of adultery and cruelty and cited one Clementine Ngori Usuma as the woman with whom her husband committed adultery. Both the petition and the cross-petition were dismissed by Mr. Justice Coker on the 18th day of August, 1961.

According to the evidence before the court below, the relationship between the two spouses at the material time had become very bad. Then, on the 28th May, 1960, the petitioner came to Lagos from Ibadan. On his arrival, he received certain information concerning his wife and, in consequence of it, started to look for her.

At about 1.30 a.m. he returned home to 39 Jebba Street, Ebute Metta, where his wife was living with his mother but found that his wife had still not returned home. At about 2.30 a.m. an Opel Kapitan saloon car drew up in front of the house and both the respondent and the co-respondent came out of it and walked towards the house. At the entrance to the house, the co-respondent embraced the respondent and kissed her. The appellant attacked the co-respondent and a fight ensued.

The petitioner’s witness, Comfort Taiwo, held the petitioner and took him into the house. She then went back outside and entreated the respondent to go into the house. According to the witness, the respondent was very drunk. She abused her husband, told him that she had had sexual intercourse with the co-respondent and said that he could please himself. The witness left the respondent because she was drunk but some four days later she called both the respondent and the petitioner together and advised the respondent to go back with her husband to Ibadan and consider the interest of their children. Both of them refused to come together again and the respondent said that she had already had five children by the petitioner and that she was going to have children for the corespondent.

We shall not deal with the evidence of both the petitioner and the respondent in respect of their counter-allegations of cruelty against each other, or the wife’s allegations of adultery against the husband because in the case of the petitioner he abandoned the ground of appeal dealing with cruelty and in the case of the respondent, because there is no cross-appeal by her against the decision and because the learned Judge found that even if the petitioner had been guilty of adultery the respondent had condoned.

Four other grounds of appeal were filed and argued by the petitioner/appellant and these are as follows:-

1. The decision is against the weight of evidence.

2. The learned Judge misdirected himself in law by not holding the admission of adultery by the respondent against her even though the said admission was accepted and believed by the learned Judge.

3. The learned Judge misdirected himself in law on the questions of familiarity and opportunity required to establish adultery and erred by holding on the evidence before him that no opportunity existed for adultery to be committed.

4. The learned Judge erred in law in dismissing the petition because both parties (i.e., the petitioner and the respondent) were at fault.

The co-respondent was represented at the hearing of this appeal but the respondent did not appear either in person or by counsel.

Before dealing with the arguments addressed to us, it will be useful to refer to some portions of the judgment of the learned Judge. They are as follows:

1. “The respondent was a very difficult witness and gave her evidence in an indifferent and nonchalant manner. I think the relationship between her and the co-respondent was of an entirely different nature from that described by her. Even if the co-respondent was a friend of her family that position is not inconsistent with the relationship described by the petitioner. I accept and prefer the evidence of Mrs Comfort Taiwo to the effect that she, respondent, was drunk when she returned back home on the night of the 28th May, 1960 and that she did utter the statements attributed to her by that old lady . I do not, however, propose to hold as against the respondent the statements made by her under the influence of alcohol or in the heat of passion as admissions of liability by her. I take the view that if she was cool and sober she would not have made any such statements.”