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ABBAS MOHOMMED
V.
TAIWO MOHOMMED AND ANOTHER
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT LAGOS, NIGERIA
17TH DAY OF NOVEMBER, 1952
APPEAL NO. 3604
2PLR/1952/61 (WACA)
OTHER CITATION(S)
2PLR/1952/61 (WACA)
(1952) XIV WACA PP. 199-200
LEX (1952) – XIV WACA 199-200
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BEFORE THEIR LORDSHIPS:
FOSTER-SUTTON, P.
VERITY, C.J., NIGERIA
COUSSEY, J.A.
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BETWEEN:
ABBAS MOHOMMED (PETITIONER) – Appellant
AND
1. TAIWO MOHOMMED (RESPONDENT)
2. TOWFIC AKEL (Co-RESPONDENT) – Respondents
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ORIGINATING COURT(S)
Appeal against decision of Robinson, J., in a divorce suit by the petitioning husband on the amount of damages awarded him against the co-respondent
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REPRESENTATION
R. Bakare — for the Appellant
O. Moore — for the Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
FAMILY LAW — MATRIMONIAL CAUSES — DIVORCE:- Damages against Co-respondent in divorce suit – Relevant considerations — Evidence that wife and co-respondent were lovers before the marriage to the Petitioner — Measure of damages — Rule that same be compensatory — How properly treated
WOMEN AND CHILDREN’S LAW:- Women and justice administration — Matrimonial causes — Woman who returned to her lover after leaving him to marry another but without first divorcing her husband — Legal effect — Claim for damages against lover of woman — Relevant considerations
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CASE SUMMARY
The petitioner in a divorce suit was awarded £5 as damages against the co-respondent; he appealed on the damages. Prior to the marriage, the petitioner’s wife had been the mistress of the co-respondent in Lagos. After the marriage the petitioner and his wife lived in Kano and she helped him in his business. Then she left her husband and went back to live with the co-respondent in Lagos. The trial Judge thought it was the wife’s fault more than the co-respondent’s and took account of the fact that she had been his mistress before marrying the petitioner, with whom married life was not a success, and awarded the petitioner £5 as damages against the co-respondent.
The question on appeal was whether that sum was adequate. There was uncontradicted evidence from the appellant that his wife and the co-respondent were writing to each other and that the incident brought much shame upon him in Kano, where he was known and respected.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (allowing the appeal):
1. It was reasonable to infer that the co-respondent was partly responsible for the break-up of the marriage.
2. In determining the quantum of damages to award the trial Judge would appear to have been unduly influenced by the fact that he considered the appellant had taken an unreasonable risk in marrying the respondent, having regard to her previous history (as mistress of the co-respondent), and insufficient, if any, regard to the fact that the appellant had shown his good intentions by marrying her and providing a settled home for her.
3. There is a distinction between this case and one in which a co-respondent does not know that the woman he is having intercourse with is a married woman. Here he did know. If he had done anything to discourage the wife in the course she adopted, it was incumbent upon to give evidence to that effect.
4. While the co-respondent owed no duty to dissuade the wife, but there is the un-contradicted evidence of the appellant that his wife was receiving letters from the respondent before she left him. From that and the other evidence, it is reasonable to draw the conclusion that the respondent was partly responsible for the break-up of the marriage.
3. The damages in a case of this kind should only be compensatory and not punitive, but £5 were not adequate compensation to the appellant for the loss of his wife, the blow to his honour and the injury to his feelings; and therefore amount would be increased to £200.
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MAIN JUDGMENT
The following judgment was delivered:
FOSTER-SUTTON, P.
This is an appeal by a petitioner in divorce proceedings against the judgment of Robinson, J., by which he awarded the appellant the sum of £5 damages against the respondent who was the co-respondent in the court below.
The appellant is a Sudanese and he married a Yoruba-woman at the Marriage Registry, Lagos, on the 28th April, 1949. After the marriage the couple lived together at Kano in a home provided by the appellant, where he also carried on a business in which he was assisted by his wife, until the 11th October, 1949, when the wife left Kano for Lagos where she resumed co-habitation with the respondent with whom she had been living for some years before she married the appellant.
The trial judge found as a fact that the respondent knew that he was committing adultery with a married woman, that it was the fault of the wife more than the respondent, that the appellant knew that she had been the respondent’s mistress before he married her and that the marriage was not a success.
Counsel for the appellant contended that the damages awarded were inadequate compensation to the appellant for the loss sustained by him and that they were in the nature of nominal or contemptuous damages.
Respondent’s counsel submitted that the respondent did nothing to induce the wife to leave the appellant, that she would have left him in any event and that there is no distinction between this case and one in which the co-respondent is not aware of the fact that the woman concerned is a married woman. He admitted that this was a proper case for awarding some compensation to the husband, but contended that on the facts of this case the amount awarded was adequate.
In determining the quantum of damages to award the trial Judge would appear, from his judgment, to have been unduly influenced by the fact that he considered the appellant had taken an unreasonable risk in marrying the woman, having regard to her previous history, and insufficient, if any, regard to the fact that the appellant had shown his good intentions by marrying her and providing a settled home for her.
At the trial the appellant gave evidence that while he and his wife were living together at Kano she and the respondent were in communication with each other by letters, and that the whole incident brought much shame upon his head.
A witness was also called on his behalf who testified that the appellant was very well known in Kano and was well respected and liked.
I am unable to agree with respondent’s counsel that there is no distinction between this case and one in which a co-respondent does not know that the woman he is having intercourse with is a married woman. Here he did know. If he had done anything to discourage the wife in the course she adopted it would have been a simple matter for him to have given evidence to that effect.
Counsel for the respondent argued that the respondent owed no duty to dissuade the wife, a proposition with which I agree, but there is the un-contradicted evidence of the appellant that his wife was receiving letters from the respondent before she left him. From that and the other evidence I am of the opinion that it is reasonable to draw the conclusion that the respondent was partly responsible for the break-up of the marriage.
Damages in a case of this kind are compensatory, not punitive, but the part played by the co-respondent is relevant, and due weight ought to be given to the injury to the husband’s feelings. His conduct and affection are also relevant, as are his wife’s. Bearing these factors in mind I do not think that the sum of £5 is reasonable compensation to the appellant for the loss of his wife, for the blow to his honour and the injury to his feelings.
In the circumstances I would allow this appeal with costs and increase the damages awarded to the sum of £200 which I regard as a more suitable measure of compensation for the injury and loss sustained by the appellant.
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VERITY, C. J.
I concur.
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COUSSEY, J. A.
I concur.
Appeal allowed.
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