OBAYEMI V. OBAYEMI

• Pages: 175-183

OBAYEMI V. OBAYEMI

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obviously obliged to do so in order i:o clarify a point of evidence which had arisen

in the proceedings before him and the implications of which are well within the

knowledge of both parties to the litigation.

We have already referred to the circumstances under which the judge in this

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case exercised his discretion to recall the plaintiffs' surveyor, and viewed in the

light of those circumstances the argument of counsel for the defendant must fail.

We see nothing improper in the exercise by the judge in the present circumstan-

ces of a discretion which he undoubtedly possessed and we cannot accede to the

submission of counsel that the judge was wrong in taking the course which he did.

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This ground of appeal also fails.

The appeal failed and was accordingly dismissed with 32 guineas costs to the

respondents.

Appeal dismissed.

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OBAYEMI V. OBAYEMI

20

OYINLOLA OLUFUNKE OBAYEMI



APPELLANT

V.

SAMUEL ADEBAYO OBAYEMI



RESPONDENT

SUIT NO. SC 346/1966

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SUPREME COURT OF NIGERIA

BRETT,

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Ag.C.J.N.

COKER,



J.S.C.

LEWIS,



J.S.C.

19th May, 1967

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Matrimonial Causes - Divorce - Decree nisi 'made absolute per incuriam while

appeal pending Procedure for setting aside decree absolute to enable appeal

to be heard - Cruelty - Test objective - Knowingly reducing other spouse

to ill-health by inexcusable conduct - Ordinary meaning of cruelty - Cumulative

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effect of various incidents - Reasonable apprehension of danger to health -

Trial judges findings on whole of evidence - Whether appeal court justified

in reversing - Decree Nisi - Substitution of judicial separation - Whether

granted on application of unsuccessful respondent - Extent of court's jurisdiction

in matrimonial causes - Infant - Custody on grant of decree nisi - Whether

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interim or final order to be made - evidence - Privilege - Divorce - Attempted

reconciliation - Whether interview

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privileged - Privilege, if any, that of

parties waiver.

ISSUES:

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1. Whether a Judge can make absolute a decree

nisi

while an appeal against the

decree

nisi

is pending.

2.

Whether admissions made by a party to an independent party are privileged

where no objection is taken when evidence of such admission is given.

3.

Whether the test of cruelty as a ground for divorce is objective and whether

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such cruelty must have been aimed only at the complaining party.

4.

Whether the court has a discretionary power, at the instance of the unsuccessful

party, to order a judicial separation instead of a dissolution of the marriage.

5.

Whether on the granting of a decree

nisi

an order as to custody should be

interim or final.