JAMGBADI V. JAMGBADI

• Pages: 281-282

JAMGBADI V. JAMGBADI

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281

JAMGBADI V. JAMGBADI

5

ERNEST SUNDAY JAMGBADI

V

10 ADEOLA JAMGBADI

FEDERAL SUPREME COURT.

BRETT,

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J.S.C.

TAYLOR,

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J.S.C.

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BAIRAMIAN,

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J.S.C.

28th November, 1963.

APPELLANT

RESPONDENT

SUIT NO. FSC 424/1962

Matrimonial Causes - Petition for divorce - Adultery - Cross petition- Desertion

and Adultery - Trial Judge not considering allegation of desertion at all

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Effect of - Appeal - Civil Action - Practice and Procedure - Duty of appeal

Court in such circumstances.

ISSUE:

1. What is the duty of an appellate Court where a trial Judge did not consider or

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come to any finding on an issue before him.

FACTS:

The appellant's wife had earlier brought a petition for divorce on the ground of

adultery, but her petition was struck out for want of prosecution. The appellant

however denied adultery and brought a cross-petition asking for a divorce on

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grounds of adultery and desertion. Even though he gave some evidence in sup-

port of the allegation of desertion, the trial Judge treated the cross-petition as if it

had been based solely on adultery and after considering the evidence on this, dis-

missed the cross- petition without referring to or making any finding on the alle-

gation of desertion or the evidence in support of it. The appellant appealed

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contending that the issue of desertion had not been dealt with by the trial Judge.

HELD:

1. The appellant was entitled to nave the allegation of desertion considered, but

since the Supreme Court could not come to a finding of fact to prove desertion,

the cross-petition should go back to the High Court for rehearing on that issue.

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2. That the judgment of the trial Judge in so far as it had to do with the issue of

desertion be set aside.

Mr. S.I.O. Giwa-Amu,

for the Appellant.

Mr. R.O. Oyenubi,

for the Respondent.

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BRETT, J.S.C.

This is an appeal by a husband against the judgment of the High

Court of Western Nigeria, refusing his cross-petition for a decree dissolving his

marriage with the respondent on the ground of her desertion.

The wife brought a petition for divorce on the ground of adultery, but was neither

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present nor represented at the hearing, and her petition was struck out for want of

prosecution. She has not appealed against this order. The husband denied adul-

tery, and brought a cross-petition asking for a divorce on two grounds: adultery

and desertion. He gave some evidence in support of the allegation of desertion,

but the trial Judge treated the cross- petition as if it had been based solely on adul-