MERCY NNENAYA ODUMODY (PETITIONER)

v.

PETER CHUKWUMMA ODUMODY (RESPONDENT)

(1964) All N.L.R. 524

Division: High Court, Lagos

Date of Judgment: 6th October, 1964

Case Number: WD/13/1964

Before: Taylor, C.J.

The petitioner was granted leave to file a petition, for the dissolution of the marriage to the respondent, before the expiration of three years of the marriage; adultery and cruelty were alleged in the petition, but the evidence of adultery and of cruelty is really that of the petitioner herself without any corroboration in proof thereof. The petitioner "deposed that on the 13th and 17th December, 1963, at 5:00 pm and 7:00 pm respectively, while she was in the matrimonial home, the respondent brought in a different girl on each occasion, met the wife, ignored her and took the girl straight to his bedroom. The door of the bedroom though shut was unlocked and when the petitioner went up and opened the door she found the respondent and the girls on both occasions naked and in the act of having sexual intercourse; when she remonstrated with the respondent, he merely pushed her away." The court was highly impressed with the petitioner's demeanour at the trial and the point is whether the marriage can be dissolved on the evidence of the wife alone on this point without corroboration.

HELD:

The evidence of the petitioner and her witnesses as to the actions of the respondent during the endeavours made by the family to settle the parties' differences convince me that the respondent is a man capable of all the acts to which the petitioner has deposed. I accept her evidence although not corroborated, and find that the respondent did on those two days aforesaid commit adultery with two women whose names are unknown.

Case referred to:-

Riches v. Riches & Church (1918) 35 T.L.R. 141.

Taylor, C.J. of Lagos:- This is a petition by the wife for the dissolution of her marriage to the respondent-which took place in the Marriage Registry in the District of Romford County of Essex on the 3rd day of May, 1963.

In view of the fact that three years have not yet elapsed since the presentation of this petition now before me, on the 12th day of May, 1964, the present petitioner applied to the High Court for leave to present a petition for the dissolution of the marriage aforesaid notwithstanding that three years have not yet elapsed.

The record of proceedings dealing with this application is, on the point of whether the respondent was aware of the date of the said proceedings a little unsatisfactory for the court notes of the 25th May, 1964 state that the respondent was served but was not present and yet on the next adjourned date the 1st June, 1964, the court notes read that the respondent was not served and that the matter was adjourned to the 9th June, 1964, for service. The affidavit of service sworn to by the bailiff deposes to service having been effected on the 4th June, 1964. On the next two days when the summons was called, i.e. on the 9th June and 12th June there is nothing to indicate whether the respondent was aware that the summons was coming up on those days, and on the latter date the court notes read thus:-

"Mr Umozurike for the applicant Mr Umozurike moves and refers to affidavit Court: Order as prayed."

The brevity of the order and the proceedings has made it difficult for me to discover whether leave was granted to file a petition before the expiration of three years on the grounds of exceptional hardship suffered by the petitioner or of exceptional depravity on the part of the respondent or both. I must therefore content myself with the fact that leave has been granted and the petition is properly before me.

The point about service has not been raised in these proceedings by the respondent who is represented by Counsel and I do not intend therefore to give it any further consideration.

What I have to decide is whether the petitioner has sufficiently established either of the grounds on which this petition for dissolution of the marriage is based, i.e. adultery or cruelty. The evidence of adultery and of cruelty is really that of the petitioner herself, and in respect of the first ground the evidence is both circumstantial and direct. It is circumstantial when it deals with the incident at the Liston Hotel on the 4th May, 1963, when the petitioner saw the respondent at 3:30 pm in the Hotel rooms with the door locked and the respondent is alleged to have said that he was sorry his wife had to meet him with the European girl. In my judgment neither the circumstances surrounding the incident nor the words uttered by the respondent can be sufficient circumstantial evidence of or confession of adultery and I dismiss this incident as being insufficient to establish adultery.

The other incidents are however of a different nature and the evidence there is direct. The wife deposed that on the 13th and 17th December, 1963, at 5:00 pm and 7:00 pm respectively, while she was in the matrimonial home, the respondent brought in a different girl on each occasion, met the wife, ignored her and took the girls straight to his bedroom. The door of the bedroom though shut was unlocked and when the petitioner went up and opened the door she found the respondent and the girls on both occasions naked and in the act of having sexual intercourse. She also gave evidence of other occasions when the respondent brought in girls to the sitting room and in the presence of the respondent kissed them and indulged in romantic displays; that when she remonstrated with the respondent, he merely pushed her away. It is really difficult for me to believe that any man with some code of moral behaviour with some decency, could or would behave in the openly immoral way the petitioner says the respondent behaved. Indeed it is well known, and the text books say that direct evidence of eye witnesses to the actual or physical act of sexual intercourse is rare, and where such evidence is forthcoming, the court must scrutinise it to see whether there is any collusion or connivance between the parties. On the other hand one has only to watch this young lady giving evidence to know that if at all she erred in her evidence it was not on the side of exaggeration but of understating what actually took place. She was often shy and hesitant in giving details of what she saw when she opened the bedroom door. I must confess that was wholly taken in by her demeanour. I made this clear to Counsel when he was addressing me for I said that I wished to hear him only on whether I can dissolve the marriage on the evidence of the wife alone on this point. My record shows that I received no assistance from Counsel on the point and had to do my own researches. I will however refer to only one case, for quite a few of the cases to which reference is made in Rayden deal with the necessity for corroboration of the evidence of the petitioner where it is circumstantial. The case of Riches v. Riches & Church 1918 35 T.L.R. 141 is however to the point. Mr Justice Coleridge as he then was said this:-