OYETI V. SOREMEKUN

• Pages: 282-284

282

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NIGERIAN SUPREME COURT CASES

[1963] N.S.C.C.

tery, and after considering and rejecting the evidence tending to show the wife's

adultery he dismissed the cross-petition without referring to the allegation of deser-

tion or recording any finding as to the evidence in support of it. No appeal has

been brought against the rejection of the evidence of adultery, and this Court is

solely concerned with the issue of desertion.

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The appellant is clearly entitled to have his allegation considered, and the only

question is whether this Court can properly come to a finding of fact on the evi-

dence given in relation to it. The whole of the appellant's evidence on this issue

was as follows

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- "We were married on 16th May, 1954. The marriage was celebrated at Loko-

ja..... We cohabited together at Gbogan for about four months. I left Gbogan

in September, 1954, because I gained admission to the University College, Iba-

dan. The petitioner did not go to Ibadan with me. Instead she returned to her

parents at Lokoja. She was going to stay with them for only two weeks but she

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has not returred to me since she left. All efforts to persuade her to return proved

abortive".

While this is undoubtedly some evidence of desertion we do not consider that

an

appeal court could hold it sufficient to prove desertion for a minimum period

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of three years immediately preceding the date of the cross-petition, which was the

13th July, 1960. The University College Ibadan, is well known to be a residential

institution and nothing is said about where the appellant offered to make the ma-

trimonial home during the period of his residence there, or about the date when

he left the College and what home he offered them. The appellant made some

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approach to his wife through the Welfare Officer, Lagos, in April, 1960, which was

after the date of her petition, but gave no evidence of any earlier efforts to per-

suade her to return to him, or of any reply received from her which might have in-

dicated when she formed an intention to desert him.

In the circumstances the appellant's cross-petition must go back to the High

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Court for rehearing on the issue of desertion. The judgment of the High Court is

set aside so far as it relates to that issue and both parties will be at liberty to amend

their pleadings or to file fresh pleadings so far as they relate to that issue.

Appeal Allowed.

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OYETI V. SOREMEKUN

BISI OYETI APPLICANT

V

AFOLABI A. SOREMEKUN RESPONDENT

SUIT NO. FSC 463/1963

SUPREME COURT OF NIGERIA

ADEMOLA,

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C.J.N.

BRETT,

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J.S.C.

BAIRAMIAN,

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J.S.C.

28th November, 1963.

Legislation - Supreme Court Act 1960, .s.24 - Supreme Court Rules 1961, 0.7

r.37.

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