Olufela Charles Sowande v. Mildred Benice Sowande. In Re Queen’s Proctor (1963)

LawGlobal-Hub Lead Judgement Report

ADEMOLA ADETOKUNBO C.J.N [Justice of The Supreme Court of Nigeria]

 The appellant was the petitioner in a divorce suit in the High Court of Lagos where he prayed for a dissolution of his marriage with the respondent who, he said, had deserted him.

The respondent before the marriage was an American citizen, but was living in London in 1936 where the parties got married and lived together for a time. The respondent now lives in New York. She did not defend the petiton but during the hearing the learned judge invited the assistance of the Queen’s Proctor as he felt there were difficulties about the question of desertion, as well as the question of delay in presenting the petition.

The learned judge in his judgement referred to the burden of proof required to prove desertion. The burden, he said, is high and desertion must be strictly proved-Smith v. Smith 1 Sw. andTr 360 (164 English Reports 766) and Galler v. GAller [1954J 1 All E.R. 539. Although the court may infer desertion from the fact that the husband asks the wife to join him and she refused, but it is not bound to do so – Dunn v. Dunn [1948J 2 All E.R. 822. In the penultimate paragraph of his judgement the learned judge said :-

  “Delay does not arise in my view of the findings. It is my jdgement that for the reasons stated that the petition be dismissed.”
The facts before the learned judge are briefly as follows. The parties were married in London in 1936. In 1939 at the outbreak of the second world war, the United States Government offered American citizens in the United Kingdom a passage back to the States. The respondent told the petitioner that she wanted to go back to the States with their two daughters. She left, not without protests by the petitioner, and against his will. He had already arranged a home for the respondent in Kent as he was liable to be called up for service. Letters passed between the two for about three years and than stopped. After the war he tried to get her back, but she would not return.

Suddenly, in 1951 the respondent turned up in London with the children, and traced the petitioner to  a church where he had been an organist and choirmaster. They did not live together: he had the children with him; attempts were made at a reconciliation; I they failed: there was no co-habitation; he failed to understand her and felt she was hiding something. She turned up one day, took the children away and disappeared. The petitioner, a Nigerian, returned home in 1953. His business took him to New York in 1957, he is a musician. This was a successful visit for him, and he hit the headlines in the United States. The respondent wrote to him in New York asking to see him; they met, but nothing came of his meeting.

The submission by counsel for the husband before the judge in the court below was that the act of the respondent in 1939 constituted desertion; and her sudden disappearance in 1951, when efforts were being made for a reconciliation, also constituted desertion or a continuation of the first desertion.

The main argument, however, before us was that the petitioner had sufficiently proved desertion by the respondent., and that she deserted her matrimonial home in 1939. On this issue, the learned judge in his judgment having considered what constitutes actual desertion as well as constructive desertion, said :-
“It has already been pointed out what is the nature of onus of proof, and on whom it lies. It is my judgement that on the state of the evidence, it has not been proved with that high degree necessary, that at any time between 1939 and April, there had been animus deserendi on the part of the respondent.”

Dealing earlier in his judgement with the facts which led to the respondent abandoning her matrimonial home in 1939, this is what the learned judge said:-

“I would have no difficulty in finding that the respondent took advantage of the offer made by the Government of the United States of America and returned to her native country soon after the conflict had begun in Europe . . . Here is a coloured woman about twenty-six years of age at the time, with two young children, a foreigner as it were, a husband already called up, or at least to be conscripted, faced with the hostilities of nations in Europe; and at the same time an opportunity arises whereby she might return to her native land with her children – to a country which is far removed from the hostilities. I would find it difficult in these circumstances to hold that up to the time she left England in 1939 that she did so with the intention of pemanently putting an end to the marriage.

Everyone knows with what savagery the war was fought and in England civilians were very much in the front line. These events were foreseen, and no doubt that is why the Governent of the United States of America offered the passages to its citizens. It is my judgement that when the respondent left England in 1939, there was no animus deserendi on her part. I take the view that she left in the interest of herself and family and her action was not unreasonable. “
It seems to me that the learned judge’s consideration of the whole situation is that the decision to leave the matriomonial home in time of war can be a unilateral act on the part of one spouse. One would have thought the parties would, in such circumstances, deliberate together as to what is best for each member of the family. The question is, can it be said in the circumstances that the respondent had just cause to desert her husband. Surely at such a time, the wife’s place is by her husband until it is obvious that to continue to live together has proved rather dangerous. It may be true that the war of 1939 was fought with much savagery, but it will not be true to say that this was so at the early stage of the war; surely it was not so in 1939. Whatever the situation was, many wives stayed in England, nay in Europe, with their husbands during the war: some wives of Amercian nationality, one may reasonably assume, stayed with their husbands in England throughout the war. It would be a strange thing if every American wife deserted her husband in Europe during the war years and returned to the United States, leaving the husband without his consent.
    I am unable to accept that the war was a just cause for the wife to leave the matrimonial home without her husband’s consent.
I have referred to the views expressed by the learned judge. The learned judge found that between 1939 and 1951 there had been no animus deserendi on the part of the wife. I find it difficult to accept this as correct in view of the evidence before him. What was the conduct of the respondent after she had left her matrimonial home? There was no offer on her part to return to the husband. She kept away in 1951 she visited England and traced her husband to a church in which they had both worshipped together in the past. She did not return to her home; she made no offer. Then she disappeared as mysteriously as she had come. It seems to me very difficult on these facts to arrive at the conclusion that the respondent in 1939, when she left the matrimonial home had no animus deserendi.

In Buckler v. Buckler, [1947] P.25. it was said that animus deserendi may be proved from the facts. In this case, the facts are that the respondent when she left her matrimonial home in 1939 left no address; she was later contacted; wrote sparingly for three or four years and was never heard of again until she turned up in 1951. For some years she was paid her allowance by the War Office until regulations made it impossible.

There was, in my opinion on the part of the wife (respondent) to desert. This is also obvious from her subsequent conduct; her behaviour in 1951 when she and the appellant met in London clearly showed that she never intended to return to the appellant.

In Sickert v. Sickert [1899] P. 278, it was held that in order to constitute desertion, there must be a cessation of cohabitation and an intention on the part of the accused party to desert the other.

It seems to me that the question to which the learned judge should have addressed his mind was whether or not the wife respondent was in desertion in 1939 when she left the matrimonial home. In spite of all the learned judge had to say about the savagery of the war on the matter of animus on the part of the respondent, it is clear from the fact that the war was not enough course for the respondent to abandon her matrimonial home, and that she had not the intention to return to her husband.

The next question is, since the wife deserted in 1939, was the husband under any duty to take her back in 1951 when she returned? Although the learned judge, in his judgement, did not say the husband was under any such duty, he nevertheless put the blame on the husband for not taking his wife back in 1951: he (the judge) was unable to understand why the husband had only the children to stay with him, and not the wife as well. On this point, it is not clear from the evidence that the wife herself made an offer to return. It does not appear that was such an offer, for according to the husband he thought by his having the children to stay with him, it might help to bring him and the wife together again. In the end, the wife merely came one day, collected the children and disappeared once again.

It only remains to say that it is obvious to me, and apparently to the learned judge from the letters in evidence in this case, that this marriage has broken down completely, and the respondent herself by her letters, exhibits C and D, made it clear that she had given cause for it and had expected that the petitioner had divorced her and married again. There is hardly any sense in trying to keep up a marriage which has obviously broken down completely – See Blunt v. Blunt [1943]. A. C. 517 at p. 524. It appears to me that all the learned judge tried to do was to keep up this marriage, which obviously the wife has terminated by her act.

My view of the matter is that the learned judge was wrong to have found that the wife respondent did not desert in 1939. It was obvious she did, and the husband’s petition was wrongly dismissed.
I would, therefore, allow the appeal. The order made by the learned judge is
hereby set aside, and I propose the following order :-
A decree nisi be made that the marriage between Olufela Charles Sowande and Mildred Bernice Marshall celebrated in London on the 20th Sepetember 1963, be dissolved.
Appeal allowed: order of trial judge set aside: decree nisi ordered.

Other Citation: (1963) LPELR-F.S.C.130/62