WILLIAMS v. OLADAPO & ANOR IN RE OLAWALE ONILE – ERE

“18. That on diverse occasions the respondent has committed adultery with one Jemila Danmole and other women.
19. That the respondent did not discharge his matrimonial duty and has callously neglected to maintain the petitioner and the children of the marriage.
20. On the 27th June, 1965, when the mother of the respondent came into the matrimonial home at Griffith Street, Ebute Metta she started abusing the petitioner and calling her all sorts of dirty names and finally ordered the respondent to drive the petitioner out of the said matrimonial home.
21. That the petitioner begged the respondent not to desert her but the respondent in obedience to his mother’s order forcibly ejected the petitioner out of the said matrimonial home.
21(a). That by his conduct as aforesaid the respondent drove the petitioner from the matrimonial home, and the petitioner from the matrimonial home driven from the matrimonial home at 29, Griffith Street, Ebute Metta aforesaid and she has not thereafter returned to cohabit with the respondent.
21(b). That the marriage has irretrievably broken down in that
(a) the respondent has deserted the petitioner for a continuous period of at least one year immediately preceding the presentation of this Petition;
(b) the parties of the marriage have lived apart for a continuous period of at least three years immediately preceding the presentation of this Petition.”
In his own amended Answer, the respondent denied the above averments and averred further in paragraphs 6 to 11, and 13 of his Answer as follows:
“6. That with further reference to paragraphs 20 and 21 the respondent says that on the date mentioned the petitioner called him and bluntly told him that she had no more love from him and wanted to leave him. The respondent who knew that she was being enticed by one Olawale Onile-Ere could not do anything about it when she eventually left.
7. That the respondent has not been guilty of adultery as alleged in paragraph 18 or at all.
8. That the marriage has broken down irretrievably on account of the petitioner’s adultery with Olawale Onile-Ere (hereinafter called the party cited) at Lagos on several occasions and respondent finds it intolerable to live with the petitioner.
9. That the party cited due to his wealth enticed the petitioner, who has a taste for expensive clothing and trinkets, by his riches.
10. That the petitioner who is of unchaste habits has several times come home with expensive items of presents given to her by the party cited.
11. That as a result of adultery between the party cited and the petitioner the petitioner was delivered of a baby girl called Oluwatosin.
13. That the respondent has not in any way been accessory to or condoned the said adultery.”
“The respondent, thereupon, also prayed the court for the dissolution of the said marriage. In addition, he asked that the party cited should be “condemned in (pound)500 damages for adultery and costs of this suit.”
Although served with a copy of the amended Answer and Cross-petition, the party cited did not file any defence to the allegation of adultery made against him therein by the respondent. Instead, learned counsel Mr. Jaiyesinmi who had earlier appeared for the petitioner, also appeared for the party cited (who was present in court), and informed the court as follows:
“I also wish to say that I am instructed also to appear for the party cited who is in court and who wishes to be heard as to costs and damages -–
I will only address as to damages and costs so far as the party cited is concerned. ”
In the testimony she gave in support of her Petition the petitioner admitted that she committed adultery with the party cited and that as a result a child by name Oluwatosin was born on 20th october, 1966. Although these facts were not pleaded by her, she gave further evidence of the adultery in the court of her evidence-in-chief as follows:
“The adultery with Mr. Olawale Onile-ere was committed on 26/12/65. I met him on 24/12/65. Between 27/6/65 and 26/12/65 I never committed adultery. Since 26/12/65 I had been committing adultery with the co-respondent. Apart from Mr. Onile-Ere I have committed adultery with no one else.”
In effect, the petitioner, of her own volition, voluntered the evidence in support of the adultery alleged by the respondent in his Answer and Cross-petition.
The respondent, pursuant to the averment in his pleadings, also testified as to this adultery as follows:
“I know Olawale Onile-Ere. He is the party cited. I know Mr. Onile-Ere personally. I know that he commits adultery with my wife. I know that as a result of the adultery she had a child from him by name Oluwatosin. ”
In a reserved judgment, the learned trial judge made it clear that he preferred the evidence of the husband to that of the wife. He then found as follows:
“In my view the respondent has satisfactorily established that the marriage had broken down irretrievably in that the petitioner had committed adultery with the person cited, Olawale Onile-Ere. Quite apart from this, the petitioner had deserted the respondent for a period of at least one year before the filing of the petition and the parties had lived apart for a period of over three years immediately preceding the presentation of the Petition. I would make an order for a decree nisi in the marriage. ”
As to the damages asked for, the learned trial judge observed:
“The principles of law to be applied are to approach the issue from the standpoint that damages should not be punitive but compensatory. It may be awarded to the husband for the loss of his wife, for the injury to his feelings, the blow to his honour, and hurt to his family life. In the instant case the marriage had in fact broken down and the parties