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HIGH COURT OF LAGOS
10TH MAY, 1969
SUIT NO. HD/32/68
EDUCATION AND LAW: – Divorce proceedings and custody of children – Mother who is a also student and resident in a place of education – Whether suitable person to award custody of children of marriage and maintenance for same – How treated
HEALTHCARE AND LAW: – Marriage troubles and Mental/Nervous Breakdown – Treatment by a proven medical practitioner – Sickness of children of marriage – When used as a shield against adultery with child’s doctor by mother care-giver – Implication for divorce proceedings
HEALTHCARE AND LAW: – Co-respondent medical doctor caught in adultery with a married woman – Propriety of brandishing call card suggesting he was acting in a professional capacity – Whether relevant consideration in assessing damages against co-respondent
BEFORE: ADEFARASIN, J.
BARIYU ADEKUNLE ADEYEMI
OLUWOLE – for the Petitioner
JIBOWU – for the Respondent
AKINSETE – for the Co-Respondent
FAMILY LAW – MATRIMONIAL PROCEEDINGS: – Divorce on ground of adultery – How proved – Burden of proof – Whether lies on the person who alleges adultery and that the same strict rule, as in criminal cases, applies, that is proof beyond reasonable doubt is required to establish adultery – Whether in order to succeed, it is not necessary to prove the direct fact and act of adultery in time and place – Whether the fact is inferred from circumstances which lead to it in most cases
FAMILY LAW – MATRIMONIAL PROCEEDINGS:- Divorce on ground of adultery – Damages against Co-respondent/third party adulterer – Whether damages in Divorce are compensatory only and are not exemplary or punitive and the attitude of the court is not to punish the adulterer but to compensate the husband – Whether evidence that the co-respondent had employed treachery or deliberation or wanton attack on family honour to seduce party to the marriage is relevant – Where marriage is found to have already broken down and there is little to compensate for – Effect on quantum – Whether court is not concerned with the means of the co-respondent in the assessment of damages
FAMILY LAW – MATRIMONIAL PROCEEDINGS:- Custody and Maintenance of Child of Marriage – Where not sought by party in whose favour divorce was granted – Where the party seeking custody gave no evidence as to proper provision made for child’s upkeep – Duty of Court thereto – Relevant considerations
ETHICS – MEDICAL PRACTITIONER: – Doctor treating child of married woman – Propriety of carrying on sexual relations with woman – Attitude of court thereto
CHILDREN AND WOMEN LAW:- Women and Divorce – Children and Custody – Judicial prescription of compatibility and period of courtship for persons before they get married – Proof of adultery required for grant of Order of Divorce – Whether woman against whom an order for divorce was granted for committing a matrimonial offence is automatically excluded from custody of child of the marriage – Grant of custody of children to their mother where she is the only one requesting for same – Whether automatic – Whether there is need to show evidence that arrangement for proper upkeep of child has been made
PRACTICE AND PROCEDURE – COURT:- Matrimonial Proceedings – Exercise of discretion to grant Order of divorce on ground of adultery in favour of a petitioner notwithstanding petitioner’s own admitted adultery – Relevant considerations
These are a husband’s petition for dissolution of marriage on grounds of cruelty and adultery of the wife with the co-respondent Dr. Peter Olusola Fasan, and a wife’s cross-petition for dissolution of the marriage on the same grounds of cruelty and adultery. The wife alleges adultery by the petitioner with one Miss Shola Odutola. The parties, both Muslims, were married at the Lagos Marriage Registry on 19th March, 1965. After the marriage they both lived for a short period of time at No.7, Baoku Street, Surulere until the 22nd April, 1965 when the husband was posted to the Nigerian Mission in Cairo and he and the wife went there together. Both of them described the short time they spent in Lagos as being happy. Very soon after their arrival in Cairo difficulties of a major kind arose between them and the incidents that occurred in Cairo between April 1965 and the 13th of July, 1966, when the wife returned to Nigeria, form the subject matter of the charges and counter-charges of the parties for cruelty. Both of them told very conflicting stories about all that happened in Cairo. The stories told by them in turn sound like fairy tales but there can be no doubt that the parties were most miserable one with the other in Cairo and there were frequent battles of words and fists some of which were staged in the public street. In fact by the time the wife returned to Lagos in July of 1966 the marriage had completely broken down and there was no love lost between them.
According to the husband the wife changed her attitude towards him about 5 days after they arrived in Cairo. She flew into a rage quite often without any reason and resorted to violence. Each occasion he went to the Chancery to do some work, which he did for reason that he was a student’s officer and had to spend most part of the day interviewing students, the wife concluded he had gone with one woman and gave him a warm reception on his return home. He spoke of incidents when the wife threw drink stools at him and in the process smashed window panes of the house in which they lived; when she attacked him and chased him around the house; when for no cause she went to the Chancery and accused a female employee of the Nigerian Mission, Miss Vitania, of being his mistress and of her fight with her in the Chancery; when she was wild and violent and gripped him by the shirt for no just cause and gave him severe thrashing until he freed himself from her; when the friends of the parties, Dr. & Mrs. Kofi Forson, visited them in their home and the wife virtually turned them back into the street at the doorstep; when the wife, who had been watching an innocent conversation between him and an Egyptian expectant mother, while the parties were waiting their turn to go inside the consulting room to consult the wife’s gynecologist and obstetrician, suddenly grew annoyed at the fact that the husband wrote out the address of the Nigerian Chancery for the lady, pulled her by the hair and gave her a beating which only the obstetrician and the other patients stopped; when the wife chased him out of the house into the street traffic lights when she suddenly pounced upon him and struck him and in the process held up the traffic; when the wife who was riding beside him in his car grew annoyed as a quarrel arose and forced the door open and came out of the car in a busy Cairo street at the traffic lights; how she attacked him savagely and broke his glasses the broken pieces of which are exhibit ‘2’. The stories the husband told sounded stranger than fiction. One would imagine that the kind of woman who would be capable of these ferocious acts would be quite a giant of a woman but the respondent is only a tall and thin woman of 26. The husband complained that the incidents in Cairo affected him mentally and on his return to Nigeria caused him a nervous condition as a result of which he was treated by Dr. Yomi Marinho.
The story of the wife about the incidents in Cairo were as strange as the husband’s. He stopped taking food at home and frequently boasted that he had a lover, Miss Vitania, in whose house he ate most of his meals; he hardly left any money for food; when she was ill with chickenpox he avoided getting near her and went as far as to place the drugs prescribed for her on a long stick which he stretched towards her to avoid contamination; he returned home late at nights, smelled terribly of alcohol and began to kick everything around, gave to using insulting and abusive language; often held her by the neck and attempted to strangle her; used his slippers to beat her; he pushed her out of his car from a moving car at the traffic lights and she had to fall on her knees; he slapped her, threatened to kill her and told her to return to Nigeria or die; and he threw her to the ground, forced her wedding ring out of her finger and flung it into the Nile. The husband’s friend and colleague Olukayode Abiona testified for the petitioner and said he had gone to the matrimonial home in Cairo after a complaint by the husband and he found broken drink stools and broken glass, doors and windows. He stated that the wife was always jealous and suspected the husband of having gone to other women each time he had gone to work in the office. Dr. Marinho an eminent Nigerian Psychiatrist, gave evidence for the husband which left me in no doubt that as a result of the broken marriage of the parties the husband was in a disturbed frame of mind.
I am required to decide which of the stories of the parties is the truth. It is said, but, I am unable to say, upon the evidence of the wife and the husband that either of them had proved the charges of cruelty against the other. Faults there were on both sides. The wife wanted a husband that would be beside her all the time. The husband went out quite a lot, partly because his work required it and partly because he wanted to get away from the wife. The husband seemed quite highly strung. The wife, somewhat overbearing.
The couple here were quite temperamentally unsuited to one another and did not understand one another. When there were quarrels they both resorted to violence-the wife confessed and said on a number of occasions they both fought. I cannot say, in the face of the web of contradictions and the series of incredible stories put across by either side that evidence of a nature that proves the charges of the one had been led. This notwithstanding, I am quite convinced that because of the clash of personalities in the parties here they just could not live together or reason with each other. I am also quite satisfied that the marriage completely broke down in Cairo and by the time the wife left there each of them had had enough of the marriage and it was quite a relief to part.
There was a charge of adultery against the wife which it is claimed she committed with the co-respondent. She and the co-respondent both deny it. The respondent charges the husband with adultery with Miss Shola Odutola and this the husband admitted and it is the subject of his discretion notice. I will return to this matter shortly.
The petitioner returned to Nigeria in August, 1968. He gave evidence which I accept that his wife no longer regarded herself bound by her marriage and that she reverted to her maiden name of Majekodunmi. The relationship between them remained more than strained, it was quite explosive. They lived apart but the husband often visited her residence to see Tokunbo, the only child of the marriage. Most of the times he went there the wife was out. Then came the 24th of June, 1968, at about 8.30 pm. According to the husband he went to the residence of the wife at No. 8, Shodipo Street, Surulere. Outside the house he saw the car of the wife parked close to a Mercedes Benz. He observed that there was a light in the sitting room and none in the respondent’s bedroom.
The front door was locked and he went in by the back door. He saw his mother-in-law in the kitchen with his son. He carried his son. He asked where his mother was. The boy came down and led the way. He followed the boy and respondent’s mother followed him. He got outside the respondent’s bedroom and pointed at the door. Inside the room it was dark. The petitioner knocked, pressed and turned the door handle and knocked again. It was locked. He knocked more vigorously and then heard the respondent say “Shola ma silekun” meaning “Shola don’t open the door”. He said she also referred to him as a fool. Thereupon he banged the door still more vigorously and the door opened. The room was still in darkness and he switched on the light. He saw the co-respondent. He was in a dark suit with his shirt “badly tucked in”. He saw the wife sitting on the bed with only one wrapper which covered only the top part of her breasts. The bed sheet was rumpled and the pillow was by the wall. He turned to the co-respondent and said “who are you and what would you be doing in a dark room with my wife?” The co-respondent fidgeted but did not say a word. The wife said nothing either. Then the co-respondent fumbled in his pocket and produced a visiting card, exhibit `4 ‘, which bore his name. He gave it to the petitioner who said: “So you, a doctor, examines your patient in the dark”. The co-respondent still said nothing. He had no instruments, no stethoscope. The petitioner then proceeded to use abusive words at him. He said the co-respondent was a disgrace to his profession and that the respondent should be ashamed for doing an act like that under her parents’ roof. They both remained speechless. The petitioner stormed into the sitting room, which was opposite the respondent’s bed room, and there he saw the respondent’s parents. He told them he was disappointed in them that such a thing would go on in their house. He left the house angrily and he went to the house of his aunt and uncle-in-law, Mr. & Mrs. Machado, and recounted to them his experience. They both followed him to the house but then both the respondent and co-respondent had left. The respondent’s parents were still there.
The stories of the respondent and co-respondent, which more or less agreed, were quite different. They both admit that the petitioner met them together in the respondent’s bed room but they deny that the room was dark or that the co-respondent’s shirt was not well tucked into his trousers or that the respondent had only a wrapper on or that the co-respondent was not carrying a stethoscope. They said the co-respondent, a lecturer in Preventive and Social Medicine in the University of Ibadan was at that time a specialist and head of the Federal Malarial Service and that the respondent having consulted him in June, 1968, about her son in his surgery he treated him and promised to call at her house on a subsequent occasion. She had complained that the child could not talk and as he found that the child had a mild fever he treated her and later discussed the condition with one of his colleagues. So he decided to visit the child as a follow-up to the treatment he had given. The child was in a cot in the bedroom and he examined the child. The door was shut but not locked. He had been only 2 minutes in the room when there was a row outside the room and there were voices. The door was pushed open and in stormed the petitioner. The respondent was fully dressed to go out to a party. The co-respondent was also fully dressed. The respondent then explained to the co-respondent the relationship between the respondent and petitioner. The co-respondent turned to face the petitioner but he gave him an unfriendly look. The petitioner used a nasty language and said, “And who are you?” The co-respondent replied and said he was the child’s doctor. He replied, “You nicely dressed gentleman who go about other peoples’ wives”. Thereupon, the co-respondent put his hand in his pocket and brought out his card.
It would be seen from the foregoing that the petitioner on the one hand and the respondents on the other have told two completely different versions of the incident. I have given careful consideration to the evidence concerning the incident of the 24th of June, 1968, and I have reached the decision that the version told by the petitioner is substantially true. It seems quite clear that what happened that night greatly upset the petitioner and made him completely irritable to everyone at No. 8, Shodipo Street-his wife, the co-respondent and his father and mother-in-law. He was so upset and nonplussed that he could not go home. He called at the residence of his aunt and uncle-in-law and recounted to them what he had seen. One might ask, why did he do this? Was it because what he had witnessed was so grave and weighty that he had to tell someone else close to him? The respondents would have me believe that all that upset him was the fact that they were there in the room, the co-respondent examining the little boy Tokunbo. That I cannot believe. The respondent and co-respondent both admitted that the petitioner was in a very bad mood. The respondent said he asked what he and the co-respondent were doing and that he started to use abusive language and said to the co-respondent: “You call yourself a doctor” and to her parents: “Can you accept this? Your house has been converted into a brothel. Your daughter is an international prostitute.” I have no doubt that it was because the petitioner saw that the room was in darkness that he knocked violently at the door until it opened that he said these. I believe that the reason he “stormed” into the room and that he created a “row” to use the words of the co-respondent, was because on putting on the lights he saw that his wife had nothing but a wrapper on. I do not believe that the co-respondent had a stethoscope or that he was examining the child or that the child was in the room at all. Because of what he had seen the petitioner’s attitude towards his parents-in-law that night was discourteous. That is what made him go to the Machados and asked them to accompany him to the house. I accept the evidence of the witness Machado. I prefer the evidence of the petitioner wheresoever it conflicts with that of the respondent and the co-respondent. The witness Machado credited to the parents of the respondent’s statements which put them in bad light concerning their stand in the episode between the respondent and co-respondent. Yet neither of them was called to testify on behalf of the respondents.
I now turn to consider the question, whether in view of my decision regarding the incident of the night of 24th June, 1968 adultery has been proved against the two respondents. The general rule is that the burden of proof lies on the person who alleges adultery and that the same strict rule, as in criminal cases, applies, that is proof beyond reasonable doubt is required to establish adultery. (See Marczuk v. Marczuk 1956 p. 217; see also Gliksten v. Gliksten 1917 33 T.L.R. p. 203; see also Galler v. Galler 1954 p 252; see also Rayden on Divorce 9th Edition p 149-152). In order to succeed however, it is not necessary to prove the direct fact and even an act of adultery in time and place. In nearly every case the fact is inferred from circumstances which lead to it. Thus in Miller v. Minister of Pensions (1947) 2 A.E.R. p. 373, Lord Denning said:-
“It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt…. if the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence `of course it is possible, but it is not in the least probable’, the case is proved beyond reasonable doubt; but nothing short of that will suffice.”
I have reached the conclusion that the respondent and the co-respondent committed adultery on the night in question. The strong surrounding circumstances – the locked door, the dark room, the flimsily clad situation of the respondent in which only the top part of her breasts were covered, the dress of the co-respondent, the terrific row that followed the discovery of the respondents by the petitioner – all point in the direction of the two having committed adultery and I do so find.
I am inclined to make order for a dissolution of the marriage on the ground of the adultery of the respondent with co-respondent, exercising my discretion in favour of the petitioner and notwithstanding his own admitted adultery with Miss Shola Odutola. The matrimonial offence of the petitioner preceded that of the respondent and in any case the respondent had more or less considered the marriage at an end.
The marriage was a failure right from the beginning. Perhaps the two parties ought never to have been married as they are completely incompatible. Parties contemplating marriage ought to appreciate the need for a fairly reasonable period of courtship otherwise they may be courting fireworks as was the case in the marriage of the parties here – fireworks from the beginning to the end. By the 24th of June, 1968 when the respondent and the co-respondent committed adultery the marriage was already broke. The wife no longer considered it as binding upon her-she had reverted to her maiden name. She no longer had the wedding ring. With this in mind together with the other surrounding circumstances I approach the matter of damages against the co-respondent. Damages in Divorce are compensatory only and are not exemplary or punitive and the attitude of the court is not to punish the adulterer but to compensate the husband. In the case in hand there is no evidence that the co-respondent had employed treachery or deliberation or wanton attack on family honour to seduce the respondent. In fact the marriage had already broken down and there is little to compensate for. The court is not concerned with the means of the co-respondent in the assessment of damages. With all these matters in mind I have come to the decision in assessing the damages against the co-respondent at £75.
The petitioner does not seek an order for custody of the only child of the marriage. The respondent however seeks custody of the child. She does not however state in her cross-petition what arrangements she has made for the care and upbringing of the child. She is herself resident at Ibadan where she is a student. The child stays at Surulere with her parents. The petitioner is a diplomat and may soon be posted abroad. It may be possible for the parties, or any of them, to make a proper application for custody, showing, by affidavit, the arrangements they have made for the upbringing of the child. The fact that the respondent is the guilty party does not preclude her from having custody. What I have decided to do in the time being is to make an order for the care and control of the child by the respondent until further order of this court and for the petitioner to pay the sum of £8 per month for his maintenance until further order of the court.
Finally I make order for a decree nisi in the marriage had and solemnised between the parties on the ground of the respondent’s adultery with the co-respondent and that that decree be made absolute after 3 months if there be no cause to the contrary. I make order that the co-respondent be condemned in damages assessed at £75. Further I make order that until further order of this court that the respondent do have the care and control of the child of the marriage and that the petitioner do pay for the maintenance of the said child a sum of £8 per month commencing from 1st January, 1969. I make no order regarding costs.
Petition granted: Decree Nisi ordered: Decree to be made absolute after 3 months.