ENEKEBE V. ENEKEBE & ANOR

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NIGERIAN SUPREME COURT CASES

[1964] N.S.C.C.

ENEKEBE V, ENEKEBE &

ANOR

FRANCIS IBEZI ENEKEBE

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APPELLANT

V

1.

CHRISTINA ENEKEBE

2.

ODUCHEAJAKO

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RESPONDENTS

SUIT NO. FSC 188/1963

SUPREME COURT OF NIGERIA

BRETT,

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J.S.C.

TAYLOR,

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J.S.C.

BAIRAMIAN,

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J.S.C.

9th March, 1964

Legislation - Matrimonial Causes Act, 1950, s.4(2) Proviso (1).

Appeals in Civil Cases - Appeal against manner of exercise of discretion -

Whether or not to remit case for more evidence.

Matrimonial Causes - Unreasonable delay in presenting petition - point taken by

trial court - Discretion of trial court to grant or refitse petition.

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ISSUES:

I. Should a trial judge dismiss a divorce petition where the petitioner is guilty of

culpable delay in presenting the petition?

2. To what questions should an appeal court address its mind when hearing an

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appeal on the manner in which a trial judge exercised his discretion?

3.

Is an application required before the Supreme Court will remit a case for more

evidence to be heard?

FACTS:

The parties could not get on, and the wife left in 1942, after which the husband

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brought a woman, and later another, to his home and both had children for him.

The wife had been guilty of cruelty before leaving and also of a trivial assault in

1950. The husband petitioned for divorce in 1961. In explaining his delay in pe-

titioning to the trial judge, he gave a futile explanation. The judge thought the delay

was unexcused and too long, and dismissed the petition on the ground of culp-

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able delay; the judgment did not expressly say that the breakdown of the marriage

was present in the judge's mind. That omission was argued on appeal and

Blunt

v. Blunt

(1943) A.C.517 was relied upon. It was also argued that the husband

would like to marry the two women living with him, under native law and custom.

There was no request to remit the case for evidence on the interest of the two

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women.

HELD:

I. When the petitioner is guilty of culpable delay, the trial Judge may dismiss the

petition, the breakdown of the marriage notwithstanding; the fact of the

breakdown was doubtless present to the trial Judge's mind.

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2. In an appeal on the manner in which the trial Judge exercised his discretion,

the question is not whether the Judges of appeal would have exercised the

discretion differently if it had attached to them, but whether the trial Judge gave

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