ELUMEZE V. ELUMEZE

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NIGERIAN SUPREME COURT CASES

[19691 N.S.C.C.

ELUMEZE V. ELUMEZE

5

JOHN ENUJEKO ELUMEZE

V

10 FANNY EZENWA ELUMEZE

PETITIONER/APPELLANT

RESPONDENT

SUIT NO. SC 7911968

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.

18th July, 1969.

Matrimonial Causes - Divorce - Order of trial for custody of child of 16 annulled

- Cruelty to be determined as an issue of fact - On evidence of husband

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and wife child born 5 months after last intercourse of husband, but such

evidence not admissible because of S.147 of Evidence Act which remains in

force in Nigeria not withstanding S.22 of Matrimonial Causes Act 1950.

ISSUES:

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1. Whether the cruelty of one spouse to another is a question of fact.

2.

What is the combined effect of sections 16 and 90 of the High Court of Lagos

Act ?.

3.

What is the interpretation of section 147 of the Evidence Act.

FACTS:

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The petitioner was seeking for the dissolution of his marriage on grounds of

adultery and cruelty. His petition was dismissed. The respondent cross-petitioned

alleging adultery. This was granted and she was given custody of the child even

though she did not plead for it. The petitioner appealed.

HELD:

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1. The question whether a spouse has been guilty of cruelty to the other spouse

must be determined as an issue of fact. The Supreme Court therefore saw no

reason to disturb the findings of the Chief Justice on this issue.

2.

The combined effect of Sections 16 and 90 of the High Court of Lagos Act is,

that despite the fact that in Nigeria we adopt the Matrimonial Causes Act and

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Rules in force in England for1he time being, we must give effect to our own law

of evidence - Section 147 of the Evidence Act. That being so, we cannot take

notice of Section 32 of the Matrimonial Causes Act of 1950 which altered the

rule in

Russel and Russel,

and Section 147 of the Evidence Act must prevail.

3.

The interpretation of Section 147 of the Evidence Act is that any one born by

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the wife of a valid marriage is the legitimate child of the husband, or even if he

were born within 280 days after the dissolution of the marriage, unless it can

be proved that the husband and wife had no access to each other or that sexual

intercourse could not have taken place; provided that neither the husband nor

the wife could be a competent witness of the non-access where the legitimacy

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of the child is concerned, nor can any declaration upon that subject made by

either party be of any effect.

4.

In this case, it was therefore clear that the evidence of the husband and wife

about non-access is inadmissible since it will affect the legitimacy of the child.

As there was no other evidence adduced by the Petitioner/Appellant on the