John Enujeko Elumeze Vs Fanny Ezenwa Elumeze (1969)

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 ADEMOLA, CJN

The husband petitioner has appealed in this matter stating that his petition before the High Court of Lagos State seeking dissolution of his marriage with the respondent on grounds of adultery, cruelty and desertion was wrongly dismissed. Also that the cross-petition of the wife/respondent charging adultery was granted although she did not give any evidence nor called witnesses. Further that she was given custody of the child which she did not ask for m the cross-petition.

At the hearing before us, counsel stated he was abandoning the appeal on grounds of desertion; the other two grounds, namely, adultery and cruelty were duly argued. It was submitted on behalf of the appellant that the learned Chief Justice was wrong in arriving at the conclusion, on the petitioner/appellant’s evidence on] q, “that the marriage had broken down completely and irrevocably.”

Four grounds of appeal were argued. Counsel arguing ground 3 stated that the cross-petition not having prayed for the custody of the child, it was wrong for the learned Chief Justice to have granted this. It would appear that the learned Chief Justice in granting a decree nisi on the grounds of the petitioner’s adultery, which he found proved, made an order, although not asked for, for the custody of the child of the marriage.

The concomitant evil of this order, it was stated, was the money for the upkeep of the child, the arrears of which have exceeded £550 and for which a writ had been issued. Counsel for the wife/respondent however said he was not happy about the order which he agreed should not have been made. As a matter of fact had it occurred to the learned Chief Justice that the child was over sixteen years of age at the time he made the order, he would not have made it. The child, according to the petition, was born on 21st February 1951 whilst the order for her custody was made on Kith April 1967. The order was clearly wrong and will have to be annulled. The order for maintenance will also be set aside. Ground 5 of the appeal deals with the issue of cruelty.

On this ground, the husband gave evidence before the learned Chief Justice of various acts of the wife respondent which he asked the court to consider as cruelty. They include leaving the matrimonial home to the United Kingdom without consulting him or obtaining his consent; adoption, without his consent, of a child in England whom she brought to Nigeria; denying him sexual intercourse; beating up the husband and his mother at different times.

All these were considered by the learned Chief Justice and he said they do not amount to legal cruelty. Counsel for the appellant has argued that since the learned Chief Justice relied on these facts when he said that “the marriage had broken down completely and irrevocably”, he ought to have found that they constitute acts of cruelty on the part of the wife.

It was argued that the learned judge dud not direct his mind to this issue. In his judgment on this issue the learned Chief Justice said:- “In support of the ground of cruelty the petitioner himself gave evidence of an occasion on the 22nd August 1964 when the respondent came to his office and behaved in a disgraceful manner, tore the petitioner’s dress and tore up papers in his office. He was supported in this by his witness Raphael Okafor Iwegbu and the medical practitioner Dr. Wilfred Akibo Akinyemi who treated him two days later.

I accept the petitioner’s evidence as to what took place, but I find it hard to hold that that evidence of the adoption of the boy against wishes of the petitioner and the assault by the respondent on the petitioner’s mother as deposed to by Joseph Elumeze is sufficient to constitute legal cruelty.

I have taken into account the allegation that the respondent would not have sexual intercourse with the petitioner after June  1960 . I am not satisfied that legal cruelty has been proved and I dismiss the allegation.” PAGE| 3 On the face of the above it will be incorrect to say that the learned Chief Justice did not direct his mind to the issue. As Lord Reid said in Gollins v. Gollins (1963) 3 W.L.R. 176 (H.L.) and [1963] 2 All E.R. at p. 969 no one has ever attempted to dive a comprehensive definition of cruelty, and it appears it is not easy to reconcile some of the decisions on cruelty. In that case (Gollins v. Gollins).an extensive examination of the authorities was made.

The earlier cases of cruelty dealt in the main with acts of physical violence and were not concerned with motives and intentions. The case Kelly v. Kelly (1870) L.R. 2 P. & D. 59 was described by Lord Merriman in Jamieson v. Jamieson (1952) 1 All E.R. at p.881 as “the leading case in England on the subject of cruelty without physical violence.” In the former case at p. 72 of the Teport Lord Penzance said “the husband said he had no desire to injure her (the wife) and it has never been asserted that he does.” Shortly after thus case, various cases show that intention to injure or to be cruel was not a necessary ingredient in cruelty. In Squire v. Squire (1948) All E.R. 51 the court observed that without the intention of being cruel some intentional acts may amount to cruelty. And in Jamieson v. Jamieson (supra) Lord Norman said:- In cases of mental cruelty the guilty spouse must either intend to hurt the victim or at least be indifferent as to the consequences to the victim.”

On the other side of the scale are cases like Westall v. Westall (1949) 65 T.L.R. at p. 337, and Kaslefsky v. Kaslefsky (1950) 2 All E.R. 398 laying it down that to establish cruelty, it is necessary to prove intention to injure.

Although Gollins v. Gollins (supra) attempted to solve some of the difficulties envisaged in this labyrinth of the law, it recognised, as indeed we do in the present case, that the question whether a spouse has been guilty of cruelty to the other spouse must be determined as an issue of fact. We therefore see no reason to disturb the findings of the learned Chief Justice on this issue. We now come to consider the appeal on the issue of adultery.

For the appellant it was argued that the issue before the court was one of adultery simpliciter and not one of the legitimacy of the child born of the respondent but that the learned Chief Justice had concerned himself with legitimacy in his judgment and for this reason he has excluded evidence of non-access. In his original petition the appellant did not charge adultery. Later, and indeed on 1/4/65 with eave, an amended petition was filed. Paragraphs 6, 14, 15, If, 17 & 19 of this amended petition charged adultery with known and unknown persons, but the relevant paragraphs for the purposes of this case are as follows – “15. That on the 21st February, 1951, at Cincinnati, United States of America the respondent gave birth to a female child, now named Pearl, of whom the petitioner disputes paternity.” “17.