Search summary:

IN THE HIGH COURT OF LAGOS STATE

ON FRIDAY, THE 18TH DAY OF DECEMBER 1970

HD/27/67

BETWEEN

MATHEW M. AJAYI ................................................ PETITIONER

AND

OLAITAN A. AJAYI ............................................... RESPONDENT

E.O. OTEPOLA ................................................ CO-RESPONDENT

BEFORE: Kazeem, J.

 

This was a petition filed by a husband against his wife for the dissolution of their marriage celebrated on the 29th October, 1959, on the ground of adultery.

It was pleaded that the respondent committed adultery with the co-respondent and that she had a baby for him. The respondent neither entered an appearance nor filed an answer. The co-respondent in his evidence denied committing adultery with her.

In support of the charge of adultery, evidence was adduced for the petitioner that the respondent was found pregnant before she left the matrimonial home and that she admitted living with a man said to be the co-respondent whom she also admitted was responsible for the pregnancy. However, the petitioner could not satisfactorily identify the co-respondent in Court as the man for whom the respondent was pregnant. The petitioner testified that because of the respondent's adultery, he could not live with her any longer.

 

HELD:

(1)     Section 15(2) (b) of the Matrimonial Causes Decree, 1970; provides that a marriage could be dissolved on the ground of its having been broken down irretrievably if since the marriage the respondent had committed adultery and the petitioner finds it intolerable to live with the respondent.

On the evidence before the court, the court was satisfied that the marriage between the petitioner and the respondent had broken down irretrievably and that it ought to be dissolved.

(2)     The failure of the respondent to enter an appearance or file an answer to the petition was ample corroboration of the fact that she had confessed adultery as testified by the petitioner.

Decree Nisi Ordered.

 

Case referred to:

Ademola v. Ademola (1957) W.N.L.R. 208

 

Decree referred to:

Matrimonial Causes Decree Section 15(2)(b).

 

PETITION FOR DIVORCE

 

Adesida, for the Petitioner.

Adesina, for the Respondent.

 

Kazeem, J.:-The petitioner and the respondent were married at the Methodist Church Ago-Ijaiye, Ebute Metta, on 29th October, 1959: See exhibit A. They lived and cohabited at various addresses before the respondent left the matrimonial home on 10th January, 1969. Both parties are domiciled in Nigeria and there are four issues of the marriage now living. Three of the children are now living with the petitioner's relation at Akure and the fourth child who was born on 10th June, 1967, is living with the respondent's relation in Lagos.

The petition was presented on two grounds of desertion and adultery, but the ground of desertion was abandoned at the trial since it could not be substantiated.

It was pleaded in paragraphs 9 to 11 and 12 (c) of the petition that the respondent committed adultery with one Mr E. Olu Otepola who was cited as a co-respondent and that she has had a baby for the said co-respondent.

Although the petition and other processes were served on both the respondent and the co-respondent, the respondent neither entered an appearance nor filed an Answer; but the co-respondent filed an Amended Answer with leave of Court on 4th June, 1970, wherein he denied committing adultery with the respondent or ever knowing or seeing her at any time.

In support of the charge of adultery, evidence was adduced for the petitioner that the respondent was found pregnant before she left the matrimonial home on 10th January, 1969, and that on 23rd April, 1969, she admitted living at 2 Olonode Street, Yaba, with a man said to be the co-respondent whom she also admitted was responsible for the pregnancy. However, the petitioner could not satisfactorily identify the co-respondent in Court as the man said to be Mr E.O. Otepola for whom the respondent was pregnant, because the man said to be Mr E.O. Otepola was said to have four tribal marks whereas the co-respondent present in court had six tribal marks. Also A.S.P. Awe who corroborated the petitioner's evidence on the admission of adultery by the said Mr E.O. Otepola could not identify the co-respondent in Court as that man. Moreover, neither the statement which the said Mr E.O. Otepola made to the police on the 23rd April, 1969, when it was said he signed before being released, was produced at the trial. There was no evidence before me either that the respondent had a baby for anyone.

The co-respondent in his evidence admitted living in a flat at 2 Olonode Street, Yaba, which he occupied after the date of filing the petition, but he denied ever knowing or seeing the respondent before, let alone committing adultery with her.

In Ademola v. Ademola (1957) W.N.L.R. 208, it was held that the failure of the respondent to enter an appearance or file an answer to the petition was ample corroboration of the fact that she had confessed adultery as testified by the petitioner.

In this petition, the respondent neither entered an appearance nor filed an Answer and I am satisfied from the evidence that she confessed to the petitioner and A.S.P. Awe that she was pregnant which was sufficient evidence of having committed adultery with someone. I am, however, not satisfied that it was the co-respondent who committed adultery with her.

The petitioner testified that because of the respondent's adultery, he cannot live with her any longer; and Section 15 (2) (b) of the Matrimonial Causes Decree, 1970, provides that a marriage could be dissolved on the ground of its having broken down irretrievably if since the marriage the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent.

Having regard to the evidence before me, I am satisfied that the marriage between the petitioner and the respondent has broken down irretrievably and that it ought to be dissolved.

The petitioner also prayed for the custody of the children of the marriage and I am satisfied that they should be in his custody.

Accordingly a decree nisi is hereby ordered for the dissolution of the marriage celebrated between Mathew Modupe Ajayi and Olaitan Agbeke Ajayi on 29th October, 1959, at the Methodist Church Ago-Ijaiye, E.B., such decree to be made absolute if nothing else intervenes after three months from the date hereof. It is further ordered that the four children of the marriage should be in the custody of the petitioner. It is also ordered that the co-respondent be dismissed from the petition.

The petitioner to pay to the co-respondent costs assessed at 20 guineas.

Decree Nisi ordered.