LAWSON V. LAWSON

• Pages: 192-196

192

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NIGERIAN SUPREME COURT CASES

[1968] N.S.C.C.

LAWSON V. LAWSON

5

BADEJOKO ADETOUN LAWSON

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APPELLANT

V

CHARLES OLATUNDE LAWSON

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RESPONDENT

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10

SUIT NO. SC 52

7

/

1

966

SUPREME COURT OF NIGERIA

COKER,

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J.S.C.

LEWIS,

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J.S.C.

MADARIKAN,

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J.S.C.

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15

11th October, 1968.

Matrimonial causes - Divorce - Matrimonial offence not established against

respondent - Respondent condoning petitioner's adultery - Whether judge has

discretion to grant divorce - Husband and wife - Divorce - Doctrine of volenti

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non fit injuria - Whether trial judge right in applying doctrine to cover

conduct prior to marriage.

ISSUES:

1.

Whether a judge has a discretion to grant a divorce where a matrimonial offence

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has not been established against the respondent, merely because the

respondent has condoned the petitioner's own adultery.

2.

Can a trial judge apply the doctrine of

volenti non fit injuria

to cover conduct

prior to marriage.

FACTS:

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The husband petitioned for divorce against his wife, alleging cruelty. The trial

judge found that the petitioner had not substantiated his allegations of cruelty

against the respondent, but following the principles laid down in

Blunt v. Blunt

(1943) 2 All E.R. 76, he held that as the wife had condoned the petitioner's adul-

tery he was entitled to exercise his judicial discretion in favour of the petitioner

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and to dissolve the marriage. The wife appealed to the Supreme Court against

the order of a decree

nisi

and costs. The petitioner in turn sought to have the judg-

ment of the High Court affirmed on the grounds that the trial judge wrongly found

the cruelty alleged not to have been proved on the evidence before him, and that

if the Supreme Court accepts this submission then the trial judge rightly exercised

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his discretion thereafter in the petitioner's favour.

HELD:

1. When a matrimonial offence has not been established against a respondent, a

judge has no discretion to grant a divorce because a respondent has condoned

the petitioner's own adultery. The judicial discretion here only arises when the

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petitioner has made out a matrimonial offence against the respondent, but

nonetheless has to disclose adultery of his own and so to seek the Court's

discretion to grant a divorce not withstanding the petitioner's own adultery. It is

only then that the judicial discretion arises and the principles of exercising that

discretion enunciated in

Blunt

v.

Blunt

come into play. It cannot arise when a

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petitioner has failed to establish in the first place a matrimonial offence of the

respondent.