IN THE HIGH COURT OF LAGOS STATE
ON TUESDAY, THE 10TH DAY OF NOVEMBER 1970
MRS JOKOTADE FOLAWIYO ................................................ PETITIONER
MR ADEMOLA FOLAWIYO .................................................... RESPONDENT
BEFORE: Kazeem, K.
This was a wife's petition against her husband for the dissolution of their marriage celebrated in June, 1958, on the sole ground of cruelty. Various allegations of cruelty were made against the husband. The allegations were not specifically denied by the husband.
(1) In order to obtain a divorce on the ground of cruelty, it must be proved that one partner in the marriage, however, mindless of the consequences, has behaved in a way which the other spouse could not in the circumstances be called upon to endure, and that that misconduct has caused injury to health or reasonable apprehension of such injury. The general rule in all questions of cruelty is that the whole of the matrimonial relationship must be considered and that rule is of special value when the cruelty consists not of violent acts but of injuries, reproaches, complaints, accusations or taunts.
(2) In section 15(2)(c) of the Matrimonial Causes Decree, 1970, one ground on which a marriage could be dissolved, is that since the marriage, the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with him.
(3) Having regard to the evidence in this case and the legal authorities on the point, and the whole matrimonial relationship between the parties, the conduct of the respondent towards the petitioner was such as could amount to cruelty in law and it could not reasonably be expected that the petitioner would continue to live with him. In the circumstances, the allegations of cruelty had been proved.
Decree Nisi ordered.
Cases referred to:
Le Brocq v. Le Brocq (1964) 1 W.L.R. 1085.
Obayomi v. Obayomi SC. 346/1966
Lauder v. Lauder (1949) Probate 277
Decree referred to:
Matrimonial Causes Decree, 1970, Section 15(2)(c)
PETITION FOR DIVORCE
Rhodes, for the Petitioner.
Disu, for the Respondent.
Kazeem, J.:-This is a wife's petition against her husband for the dissolution of their marriage, celebrated at the Registry Office, Metropolitan Borough of Fisbury, London, N. on the 7th of June, 1968, as evidenced by their Marriage Certificate exhibit B.
The spouses lived and cohabited at various addresses in London and later at 62 Milkwood Road, Herne Hill, London, S.E. until the petitioner returned to Nigeria in June, 1969. The petitioner is now resident at 75 Ondo Street East, Ebute Metta, and she is domiciled in Nigeria, whilst the respondent is still in England.
There are four children of the family namely, Olumuyiwa who was born on the 1st December, 1958; Morohunkunbi, who was born on the 24th May, 1964; Oloruntoyin, who was born on the 17th October, 1965, and Mobolaji, who was born on the 1st December, 1966. Olumuyiwa is at present with the respondent in England, whereas the other three children are now living with the petitioner at her present address.
The petitioner has asked for the dissolution of their marriage on the sole ground of cruelty and also for the custody of the three children of the family living with her as well as for maintenance for all the three children. Although she also asked for maintenance for herself in the petition that prayer was abandoned at the trial.
The various allegations on cruelty are contained in paragraph 9 of the petition but those allegations were not specifically denied by the respondent; rather, his Answer which was filed out of time by leave of the court reads as follows:-
"The respondent in answer to the petition field in this suit says: that he is not guilty of cruelty as alleged in the said petition or at all and, that he denies each and every allegation as set forth in the said petition."
and he asked for the dismissal of the Petition.
Although the respondent said in his memorandum of appearance that he would appear to defend the petition personally, he was not present at the trial but he was represented by Counsel who took the same line as contained in the Answer to the petition by contending that the petition ought to be dismissed.
The petitioner testified substantially in support of the allegations contained in paragraph 9 of the said petition and it seems from her testimony that the trouble between her and the respondent started in 1962 and continued until she left him in 1969. From the evidence adduced before me, four principal incidents would appear to be relied upon as constituting cruelty by the respondent.
First, evidence was adduced that in 1962 when the respondent suddenly developed eye trouble, and was admitted into Moorfield Eye Hospital in London, he accused the petitioner to the hearing of the nursing staff and everybody present in the ward that she was responsible for the cause of his eye trouble. The petitioner said she became so much distressed about the accusation because at that time she was pregnant and moreover she felt rather publicly disgraced by her husband. She testified further that sometime that year when she was delivered of a baby, it turned out to be a thalidomide baby and the husband again accused her publicly that she was responsible for the condition of the baby because she must have taken thalidomide tablets.
Secondly, she testified that in 1965, when she was delivered of their third child, the respondent visited her at the hospital and, as soon as he took a look at the child he said that it was not his child, but it was that of her friend's husband, and this again he said to the hearing of everybody present. The respondent, thereafter, refused to name the baby for several months and that attitude of the respondent made her to feel very depressed.
Thirdly, the petitioner also testified that in 1967, she had cause to return to Nigeria because of her father's illness and while she was in Nigeria, she happened to meet a Dr Balogun whom she had previously known in Derby and who was at the time looking after her father at the Lagos University Teaching Hospital. When she later returned to London and mentioned to her husband those whom she met in Nigeria including Dr Balogun whom she said was of considerable assistance to her father, the respondent immediately became furious and started to accuse her of having had affairs with Dr Balogun whilst she was in Nigeria. Apparently, a quarrel ensued between them and according to the petitioner, the respondent thoroughly beat her up and caused her so much distress and injury that she had to consult their family doctor, one Dr Bonds for treatment.
The fourth incident concerns the attitude of the respondent in giving the petitioner's address in Nigeria to their family creditors in London who had since been harassing her with bills to pay or face the consequences of being sued for them. She said that those debts were in respect of domestic goods which were procured for the use of the family and for which the respondent promised to pay for but he never did. The bills which were tendered as Exhibits "C", "C1"-7 are for about £136 and the respondent in re-directing them to the petitioner attached thereto a small chit on which he wrote:-
Pay the bills within four weeks or face the consequence of failure to do so.
It is evident from the bills that they could not be anything but accounts for domestic goods and it seems rather strange why the respondent chose to forward them to the petitioner instead of arranging to pay the paltry amount even though they might have been incurred in the name of the petitioner. Evidence was also adduced by the petitioner that as a result of these acts of cruelty by the respondent, she suffered a serious nervous breakdown for which she had to visit regularly Dr Bonds, their family Doctor, until her return to Nigeria. Also since her return to Nigeria she had consulted Dr Doherty who also testified that the petitioner's general complaint to him was that she was persistently harassed by her husband's letters in which he continued to accuse her of one thing or the other. The Doctor also testified that as a result of the petitioner's complaints to him, he formed the opinion that she was mentally ill and that she would need the service of a psychiatrist rather than that of a general practioner's. Although the petitioner refused to heed the advice of Dr Doherty in consulting the psychiatrist, I am satisfied from the general appearance and demeanour that she must have suffered some mental breakdown.
The petitioner was closely cross-examined by the respondent's Counsel but she remained unshaken in her evidence about what transpired between her and the respondent. I am, therefore, satisfied that her evidence was substantially true.
It now remains to consider whether or not the allegations of the petitioner amounts to cruelty in law. It is already settled that in order to obtain a divorce on the ground of cruelty, it must be proved that one partner in the marriage however mindless of the consequences has behaved in a way which the other spouse could not, in the circumstances be called upon to endure, and that the misconduct has caused injury to health or reasonable apprehension of such injury. The general rule in all questions of cruelty is that the whole of the matrimonial relationship must be considered, and that rule is of special value when the cruelty consists not of violent acts but of injuries, reproaches, complaints, accusations or taunts.
Also in Lauder v. Lauder (1949) Probate 277 Pearse, J., (as he then was) said:-
"In a cruelty case, the question is whether this conduct by this man to this woman or vice versa is cruelty"
and in Le Brocq v. Le Brocq (1964) W.L.R. 1085 Hamman, L.J., said at page 1089:-
"Cruelty is not used in any esoteric or "divorce Court" sense of the word, but that the conduct complained of must be something which an ordinary man-or a jury: I suppose this Court sits as a jury-will describe as "cruel" if the story were fully told. There need not be any physical force used (there can be words harder than blows with a saucepan) but there must be something as to which a jury will be able to say, when they heard it related "Well, that was cruel of him", before a husband can be branded with a serious charge of being cruel to his wife."
Also see Obayomi v. Obayomi SC. 346/1966 Judgment delivered on 19th May, 1967.
Moreover, in Section 15(2) (c) of the Matrimonial Causes Decree 1970, one ground on which a marriage could be dissolved, is that since the marriage, the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with him.
Having regard to the evidence before me and the legal authorities on the point, and the whole matrimonial relationship between the parties, I am satisfied that the conduct of the respondent towards the petitioner was such as could amount to cruelty in law and it could not reasonably be expected that the petitioner would continue to live with him. In the circumstances I find the allegations of cruelty proved and as such am of the opinion that the marriage ought to be dissolved.
The petitioner also prayed for the custody of the children living with her. Those children accompanied her from England when she returned to Nigeria in June, 1969, and they have been living with her and solely maintained by her. She testified as to the arrangements which she had made with respect to their education and the school which she has arranged for two of them. Having regard to the interest and welfare of those children, I think that they should continue to be in the custody of the petitioner.
Evidence was also adduced that the respondent has not been maintaining the children since their return to Nigeria and that he has also refused to pay their school fees as a result of which two of the children had to be removed from their former school. Arrangements have, however, been made for two of them to start again at Ladi Lak School in January, 1971. Although no satisfactory evidence of the respondent's means has been adduced in this case, it is, however, the primary responsibility of a father to maintain his children; and I see no reason why the respondent should not be made to contribute towards the maintenance of those children and also cater for their education.
Accordingly, I hereby order a decree nisi dissolving the marriage celebrated between Ademola Folawiyo and Jokotade Folawiyo at the Registry Office Metropolitan Borough in Finsbury, London, on 7th June, 1958; such decree to be made absolute if nothing else intervenes after three months from the date hereof. I further order that the children of the family namely, Morohunkunbi Loruntoyin and Mobolaji shall remain in the custody of the petitioner and that the respondent should have access to them whenever he returns to Nigeria. It is also ordered that the respondent shall contribute a sum of £15 monthly towards the maintenance of the children with effect from 30th November, 1970, and to pay the school fees of Morehunkunbi and Oloruntoyin at the school arranged for them at present and that of Mobolaji whenever he starts attending a school.
The respondent to pay costs assessed at 25 guineas.
Decree Nisi ordered.