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IN THE HIGH COURT OF LAGOS STATE

ON FRIDAY, THE 13TH DAY OF NOVEMBER 1970

WD/48/70

BETWEEN

ADETOUN A. OGUNSANWO .................................................... PETITIONER

AND

GABRIEL O.A. OGUNSANWO .................................................... RESPONDENT

BEFORE: Kazeem, J.

 

This was an undefended petition by a wife against her husband for the dissolution of their marriage celebrated on the 24th September, 1957.

The petition was presented on the grounds of (a) cruelty and (b) that the parties to the marriage had lived apart for a continuous period of three years immediately preceding the presentation of the petition.

The allegations of cruelty were that on three different occasions the respondent beat up the petitioner and that he was a man of violent temper.

The parties were happily married until June 1964, but thereafter, there were frequent clashes. This situation continued until 29th November, 1966, when the respondent after one of such clashes drove the petitioner out of the Matrimonial home. Since then the parties had lived apart.

 

HELD:

(1)     Since the petition was presented on 22nd May, 1970, there was no doubt whatsoever that the parties had lived apart for more than three years immediately preceding the presentation of the petition. As this is a ground for divorce under section 15(2)((f) of the Matrimonial Causes Decree, 1970, petition, the petition must succeed.

(2)     As regards the incidents which led to the beating up of the petitioner by the respondent the court was of the view that they could not have been unprovoked and they would not be more than wear and tear of marital life. This could not, therefore, be regarded as cruelty in law so as to grant the dissolution of the marriage.

Decree Nisi Ordered.

 

Decree referred to:

Matrimonial Causes Decree, 1970, Section 15(2)(f).

 

PETITION FOR DIVORCE

 

Koku, for the Petitioner.

Adeeko, for the Respondent.

 

Kazeem, J.:-This is an undefended petition by a wife against her husband for the dissolution of their marriage celebrated at the Marriage Registry, Ijebu Ode on 24th September, 1957, as evidence by the Marriage Certificate- exhibit A.

The spouses lived and cohabited at various addresses and finally at 66 Adeniji Street, Surulere, and they are both domiciled in Nigeria.

There is only one child of the family now living named Abosede, a female born on the 2nd February, 1958.

The petition was presented on two grounds, namely, (i) of cruelty, that is, that since the marriage, the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with him and (ii) that the parties to the marriage have lived apart for a continuous period of three years immediately preceding for the presentation of the petition.

The allegations of cruelty as contained in the petition, (which were not specifically particularised) were that on about three different occasions, the respondent beat up the petitioner and that he is a man of violent temper. Two of such occasions were after the petitioner had been driven out of the matrimonial home on 29th November, 1966. However, in her evidence, the petitioner gave instances of how the respondent had neglected to maintain her and look after their children, two of whom later died. This aspect of the alleged cruelty was not specifically pleaded and I do not see how evidence could be adduced on them particularly when the petition is undefended. As regards the other incidents which led to the beating up of the petitioner by the respondent, it seems to me that they could not have been unprovoked and they would not in my view, be more than wear and tear of marital life. They could not, therefore, be regarded as cruelty in law so as to grant the dissolution of a marriage.

With respect to the other ground, the parties were happily married until about June, 1964, but thereafter, there were frequent clashes between them but judging from the demeanour of the petitioner I do not think that the full story of what happened had been told. That situation continued until the 29th November, 1966, when the respondent after one of such clashes drove the petitioner out of the matrimonial home. Since then the parties have lived apart; and whereas the petitioner now lives at 66 Mosalasi Street, Obalende, Lagos, the respondent is said to be living at 37 James Robertson Street, Surulere. The petition was presented on 22nd May, 1970, and there is no doubt whatsoever that the parties have lived apart for more than three years immediately preceding the presentation of the petition. As this is a ground for divorce under section 15(2)(f) of the Matrimonial Causes Decree, 1970, I am of the opinion that the petition must succeed on that ground alone.

In the circumstances, I hereby order a decree nisi dissolving the marriage celebrated between Gabriel Olumade Adeneye Ogunsanwo and Adetoun Adenike Ogunsanwo at the Marriage Registry, Ijebu Ode on 24th September, 1957, such decree to be made absolute if nothing else intervenes after three months from the date thereof.

The petitioner did not pray for the custody of the only child of the family now living with the respondent, but I was addressed by her Counsel that she should be granted access to the child. The respondent who was represented by Counsel on this point did not object to the application. Since the petition contains a prayer for "such further and other relief as may be just", I think that this prayer ought to be granted. Accordingly, it is further ordered that the child-Abosede-be allowed by the respondent to visit the petitioner at least once a month and the child also to spend with the petitioner, at least, two weeks out of her long holidays from school.

The respondent to pay 20 guineas costs in addition to the petitioner out-of-pocket expenses of £11.2s.1d so that total costs payable by the respondent would be £32.2s.1d.

Decree Nisi ordered.