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HIGH COURT LAGOS STATE
March 6, 1972
CWLR (1972) 6
Sodipo for the petitioner.
No appearance for the respondent.
FAMILY LAW:- A husband’s petition for dissolution of marriage on the ground that the marriage had broken down irretrievably – Wife deserted marriage for 15 years – Petition for custody of only child of 16 years to father – How treated
ETHICS:– Legal Practitioner – Erroneous inclusion in pleadings of matter not sought to be pleaded by client – Duty of counsel to set out carefully the facts relied upon in petitions in matrimonial causes – Attitude of court to failure thereto – Effect
CHILDREN AND WOMEN LAW: Women and Divorce – Husband’s petition for dissolution of marriage on the ground that the marriage had broken down irretrievably due to desertion by wife of the family for 16 years – Children and Divorce proceedings – Award of custody of 16 year old child to father/petitioner – relevant considerations
This is a husband’s petition for dissolution of marriage on the ground that the marriage had broken down irretrievably in that since February 1957 the respondent had deserted the petitioner continuously. The petition was not defended. Although the respondent was served with a copy of the petition and other process since December 6, 1971, she has neither entered appearance nor filed an answer.
The parties went through a form of marriage on September 12, 1955. In less than 18 months of the marriage, the respondent, without cause, moved away from the matrimonial home and has never returned there. She left the matrimonial home in February 1957, by which time the parties had one issue of the marriage, a boy, Tonye Igbanibo, born on July 14, 1956. The respondent since her departure from the matrimonial home lived at St. Peter’s School premises, Abagana, near Awka in the East Central State. There can be no doubt that the respondent deserted the petitioner and that she has lived continuously away from him for over 15 years. Sufficient cause has been shown for a decree dissolving the marriage.
One point had given me some anxiety. In the petition at paragraph 12 (a), the petitioner prayed:
“ That the discretion of the court may be exercised in his favour notwithstanding his adultery during the said marriage.”
No discretion statement was filed. No evidence was given by the petitioner about any offence of adultery on his part. When he was questioned by the court about this he stated that he had not committed adultery as pleaded in his petition and that he was not seeking the discretion of the court. At that juncture, learned counsel for the petitioner asked for leave to strike out the paragraph in question. It may well have been that learned counsel for the petitioner erroneously pleaded adultery on the part of the petitioner when none had been committed. Those charged with the duty of setting out petitions in matrimonial causes have to set out carefully the facts relied upon. I believe that the petitioner here never intended to admit any matrimonial offence of adultery. For that reason, I strike out paragraph 12 (a) of the petition and it shall be deemed that the petitioner did not seek the court’s discretion for any matrimonial offence whatsoever. The only issue of the marriage is a boy nearly 16 years old. I am inclined to commit him to the custody of the petitioner.
I accordingly make order for a decree nisi in the marriage had and solemnised between the parties and I make order that that decree be made absolute after three months if there be no cause to the contrary. I make order further that Tonye Igbanibo, the only issue of the marriage, be committed to the custody of the petitioner.