NABHAN V. NABHAN

• Pages: 129-134

NABHAN V. NABHAN

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129

404 taxi, overtook a lorry at about 8 p.m. at night on the Nnewi/Onitsha road. He

further found that the appellant was driving without lights and when so overtaking

he knocked down a pedestrian on the right-hand side of the road (e.g. his offside)

who was waiting on the side of the road to cross. The learned trial Judge did not

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"attach great weight to the 3rd prosecution witness evidence as to the speed at

which the accused was going" so whilst we accept it was not proved that he was

driving at a high speed nonetheless his negligence in driving at night without lights

and knocking down and killing a stationary pedestrian at the driver's offside of the

road who was waiting to cross was such that we do not consider it a proper case

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to impose only a fine. We do agree, however, that a sentence of 5 years imprison-

ment was excessive and

it

was imposed on the wrong principle and we accord-

ingly order that the sentence of 5 years imprisonment be set aside and a sentence

of 2

1

/

2

years imprisonment with hard labour to run from the date of conviction be

substituted therefor.

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Appeal allowed sentence reduced.

NABHAN V. NABHAN

20

CLAUDE NABHAN

V

25 GEORGE NABHAN

APPELLANT

RESPONDENT

SUIT NO. SC 358/1965

SUPREME COURT OF NIGERIA

BRETT,

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J.S.C.

COKER,

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J.S.C.

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LEWIS,

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J.S.C.

21st April, 1967.

Matrimonial Causes - Divorce - Cmehy - Conduct amounting to - Test -

Applicability of Res Ipsa.

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Appeal - Findings of fact - Disturbance by Appeal Court - circumstances

justifying disturbance of findings of lower court by Appeal Court.

ISSUES:

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1. Whether the findings of fact by a trial judge in a matrimonial cause on the issue

of cruelty can be set aside by an appellate court.

2.

What are the duties of an appellate court in deciding whether to uphold or set

aside such findings of fact?

3.

What is the test for deciding whether a particular act offered by one party to

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another amounts to cruelty: whether unreasonable conduct or an overbearing

will or a domineering character of themselves amount to cruelty.

4.

Whether the test of cruelty is subjective or objective.

5.

Whether a single occasion can constitute cruelty in a matrimonial cause.

6.

The duty of a trial court to specify what "course of conduct" he finds to be proved

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before establishing cruelty in a matrimonial cause.

7.

Whether a judge may infer the nature of a respondent's conduct solely from the

results it produced.