ADEBAYO ATILADE V. LUCETTA ATILADE

• Pages: 23-26

ADEBAYO ATILADE V. LUCETTA ATILADE

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ADEBAYO ATILADE V. LUCETTA ATILADE

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PAUL ADEBAYO ATILADE

V

10 GENEVIEVE LUCETTA ATILADE

SUPREME COURT OF NIGERIA

ADEMOLA,

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C.J.N.

COKER,

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J.S.C.

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MADARIKAN,

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J.S.C.

19th January, 1968.

PETITIONER/APPELLANT

RESPONDENT/RESPONDENT

SUIT NO. SC 32

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/

1

967

Divorce - Husband and Wife - Desertion - Petition undefended - Judge not to

ignore fact that evidence before him not enough to sustain case - Helpful to

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petitioner if terms on which parties separated proferred to tribunal.

ISSUE:

1. Whether a trial Judge should ignore the fact that the evidence before him does

not sustain a petitioner/plaintiff's case, merely because the petitioner's case is

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undefended.

FACTS:

The parties first met in Dublin when they were students. The petitioner returned

to Nigeria and upon their arrangement the wife who is the respondent - a Jamai-

can later followed and they were married on the 24th of November, 1958. The wife

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had an issue in January, 1960, and three months later the wife left with the baby

for England to settle there. In his petition, the husband alleged desertion. The pe-

tition was not defended by the respondent. The petitioner testified that he made

several attempts by letters and through relatives to effect reconciliation, but all

proved abortive. The evidence however, clearly disclosed that it was with the pe-

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titioner's consent that the respondent left to stay in England. The trial court found

that there was not enough evidence before him that when the wife left in April 1960,

she left with the

animus deserendi,

but that this

animus

was later acquired as shown

by her letter of 20th October, 1964. As the petition was filed in June, 1966 the

judge found the petition premature, and the statutory period of 3 years after the

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desertion not having elapsed dismissed the petition. The petitioner appealed

against the dismissal of the petition on this ground.

HELD:

1.

It is wrong to assume that because a petition or case is not defended, the trial

judge must shut his eyes to the fact that the evidence before him was not enough

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to sustain the petitioner's (or plaintiff's) case.

2.

It would help the petitioner if the terms on which parties separated are proferred

to the tribunal in undefended cases of desertion. If that had been done in this

case, it might have cleared the judge's mind that the separation which took

place in 1960 was with an

animus deserendi

on the part of the respondent.

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3. On the evidence in this case the Supreme Court was not convinced that the

wife, when she left for England in 1960, abandoned the matrimonial consortium

with the intention of deserting.