Asiegbu v Asiegbu, 1972-73 ALR S.L. 270

SECTION 32 THE AFRICAN LAW REPORTS case of Bonham Carter v. Hyde Park Hotel (3) makes the position clear. He said (64 T.L.R. at 178): "Plaintiffs must understand that if they bring actions for damages it is for them to prove their damage; it is not enough to write down the particulars, and, so to 5 speak, throw them at the head of the Court, saying: 'This is what I have lost; I ask you to give me these damages.' " [These words do not appear in the report of the case at [1968] W.N. 89.] Cross-appeal by first respondent allowed. Order for recovery of possession of land 10 in favour of the first respondent against appellants and second respondents. Award of damages varied. 15 ASIEGBU v. ASIEGBU 20 25 30 35 40 High Court (During, J.): March 13th, 1973 (Divorce Case No. 12/72) [ 1] Conflict of Laws-jurisdiction-divorce-court may grant decree on cross-petition of husband not domiciled in Sierra Leone in proceedings brought by wife ordinarily resident within jurisdiction for three years: The court may grant a decree of divorce on the cross-petition of a husband who is not domiciled in Sierra Leone in proceedings brought by his wife over which the court has jurisdiction by virtue of the Matri­ monial Causes (Amendment) Act, 1961, s.5, in that the wife has been resident in Sierra Leone for three years immediately preceding the commencement of the proceedings, notwithstanding that her husband is domiciled elsewhere (page 272, lines 21-29). [ 2] Conflict of Laws-marriage and family relations-divorce-jurisdiction -court may grant decree on cross-petition of husband not domiciled in Sierra Leone in proceedings brought by wife ordinarily resident within jurisdiction for three years: See [ 1] above. [ 3] Courts-High Court-jurisdiction-divorce jurisdiction-court may grant decree on cross-petition of husband not domiciled in Sierra Leone in proceedings brought by wife ordinarily resident within jurisdiction for three years: See [ 1] above. [ 4] Family Law-divorce-costs-if no security for costs obtained against respondent husband, wife petitioner will get costs only in exceptional circumstances on failure of petition: If a wife petitioner does not obtain an order for security for costs against the respondent husband in divorce proceedings, it is only in exceptional circumstances that an order for costs will be made against him on the failure of the petition (page 273, lines 24-29). 270 ASIEGBU v. ASIEGBU. 1972-73 ALR S.L. 270 H.C. [ 5] Family Law-;iivorce-jurisdiction-court may grant decree on cross· petition of husband not domiciled in Sierra Leone in proceedings brought by wife ordinarily resident within jurisdiction for three years: See [1) above. [ 6] Family Law-divorce-petition-cross-petition-court may grant decree 5 on cross-petition of husband not domiciled in Sierra Leone in proceed- ings brought by wife ordinarily resident within jurisdiction for three years: See [ 1] above. The petitioner sought a divorce from the respondent on the ground of his cruelty and the respondent cross-petitioned on the 10 ground of the petitioner's cruelty. The parties were married in Nigeria in 1965. The respondent husband was not domiciled in Sierra Leone but his wife had lived in the jurisdiction for the three years immediately preceding the commencement of the present proceedings and the court was 15 therefore able to entertain her petition under the Matrimonial Causes (Amendment) Act, 1961, s.5: Rejecting the petitioner's evidence of cruelty, the court con­ sidered whether it had jurisdiction to grant a decree to the respon- dent on his cross-petition notwithstanding that he was domiciled 20 outside Sierra Leone. The petitioner sought costs against her husband although she had not previously obtained an order for security for costs. The petition was dismissed and the cross-petition granted. The court made no order as to costs. 25 Case referred to: (1) Keats v. Keats (1859), 1 Sw. & Tr. 334; 164 E.R. 754. Legislation construed: Matrimonial Causes Act, 1961 (No. 16 of 1961), s.5, as amended: The relevant terms of this section are set out at page 272, lines 10-17. C.N. Rogers-Wright for the petitioner; Smythe, Q. C., and Miss Taylor for the respondent. DURING,J.: The petitioner in this suit is asking this court to dissolve the marriage between herself and the respondent celebrated on September 4th, 1965 at All Saints' Church at Yaba, Lagos, in the Republic of Nigeria, on the ground of cruelty. The suit is defended and the respondent has cross-petitioned for dissolution of the said 271 30 35 40 THE AFRICAN LAW REPORTS marriage on the ground of cruelty. There are three children of the marriage. The respondent is not domiciled in Sierra Leone. The petitioner, however, alleged in her petition that she had been ordinarily resident in Sierra Leone for a period of three years 5 immediately preceding the presentation of the petition herein. There is evidence before this court in support of this allegation which I accept and I find as a fact. I hold that this court has jurisdiction to entertain the suit. Section 5 of the Matrimonial Causes (Amendment) Act, 1961, as amended, reads in part: 10 "Section 30 of the principal Act is hereby repealed and replaced by the following section - 30.(1) The court shall have jurisdiction in proceedings by a wife for divorce, notwithstanding that the husband is not domiciled in Sierra Leone, if the wife is resident in Sierra 15 Leone and has been ordinarily resident for a period of three years immediately preceding the commencement of the proceedings.'' The husband has cross·petitioned for dissolution of the said marriage and the question arises whether this court could grant 20 him relief as prayed in his cross-petition. In my opinion this court could grant him such relief. A respondent has a right to deliver and file an answer to a petition for dissolution of marriage and also has a right where proceedings have been instituted against him for dissolution of marriage to cross·petition for dissolution. 25 Once proceedings have been instituted in this court by a wife­ petitioner under s.5 of the Matrimonial Causes (Amendment) Act, 1961, the court has not only jurisdiction to grant to her a decree dissolving the marriage but also has jurisdiction to grant such a decree to a husband respondent on a cross-petition. 30 Admittedly the marriage has completely broken down and what now remains is just a shell. The evidence shows that the parties ought not to have entered into such a union. On the one hand there was a highly educated husband wanting to keep high standards in the matrimonial home and on the other hand a 35 woman of an ungovernable temper, loose and domineering who would stop at nothing to see her wants and desires accomplished, however unreasonable. There were quarrels literally from the early part of the marriage. I find on the evidence before me that there were quarrels 40 between the parties which resulted in fights and that these quarrels and fights were initiated by the petitioner, whom I have earlier 272 ASIEGBU v. ASIEGBU, 1972-73 ALR S.L. 270 H.C. stated had an ungovernable temper. I saw the petitioner in the witness-box give evidence before this court and she left no doubt in my mind that she was a woman of temper who cared little about the wishes of her husband however reasonable. The pet- itioner has impressed me as an untruthful witness. She did not 5 give a truthful account of what happened between her and the husband in the matrimonial home. I accept as true the account given by the respondent as regard quarrels and fights between himself and the wife. I find that instances when the respondent did use force on the petitioner were as a result of his defending 10 himself from a violent and determined wife. There is evidence, which I accept, that as a result of the petitioner's actions the respondent suffered mentally. I find as a fact and in law that since the celebration of the said marriage the petitioner treated the respondent with cruelty. I reject the petitioner's prayer for dis- 15 solution of the marriage and find that she and not the respondent was guilty of cruelty. The right of custody of the children of the marriage shall remain with the respondent. The question of care and control and all other ancillary matters I adjourn to chambers for consideration on March 13th, 1973. I pronounce the dis- 20 solution of the said marriage between the parties and grant the respondent a decree nisi on the ground of cruelty. I dismiss the petitioner's petition. The wife petitioner in this case did not obtain an order for security for costs against the respondent. Where a wife petitioner 25 brings a suit for dissolution and fails, the court except in ex­ ceptional circumstances does not usuclly make an order for costs against the husband, the general rule in such a case is "no security, no costs.'' In the case of Keats v. Keats (1), an application was made at 30 the trial for the wife's costs, no order with reference to costs having been made against the husband during the early stages of the suit. Dr. Phillimore for the wife prayed to be heard as to the wife's costs. The court said (1 Sw. & Tr. at 358; 164 E.R. at 765): "You are too late for that now; your application should have 35 been made before the cause was heard. The foundation of the rule of the Ecclesiastical Court was, that the wife should be enabled to bring her case to a hearing, and defend herself, and so up to any time previous to the hearing the husband was generally liable to have the wife's costs taxed against him, 40 and the Court has so far followed the rule, as in Evans v. 273 SECTION 33 THE AFRICAN LAW REPORTS Evans and Robinson ... but if the wife has brought her case to a hearing, howsoever, and fails, the husband has never then been made liable to her costs." There is no exceptional circumstance for me not to follow the 5 general rule "no security, no costs." I make no order as to costs. 10 15 20 25 30 35 40 Petition dismissed; cross-petition granted. MACMILLAN v. FALLAH High Court (Thompson-Davies, Ag. J.): March 28th, 1973 (Mag. App. No. 19/72) [1] Tort--nuisance-encroachment on land-projection of eaves over neigh­ bouring land is nuisance-liability established without proof of defen­ dant's negligence or actual damage: Although it closely resembles a trespass the projection of the eaves of a building over adjacent property is in fact a nuisance for which liability is established merely by proof of the encroachment without consideration of the character of the neigh­ bourhood or the defendant's negligence; further, it is unnecessary to prove actual damage since on the particular facts there is a presumption that damage will be suffered by the plaintiff by rain-water dripping from the roof on to his land (page 275, line 33- page 276, line 4). [2] Tort-trespass-trespass to land-projection of eaves over neighbouring land not trespass but nuisance: See [1] above. The appellant brought an action against the respondent in the Magistrate's Court, Freetown claiming damages for trespass to land. The appellant and respondent owned adjacent properties. The roof of the respondent's bakery was constructed so that the eaves overhung the appellant's land and caused rain-water to drop on to it. The appellant brought the present proceedings claiming damages for trespass but although the magistrate did not reject her evidence he held that she had failed to prove trespass. On appeal the appellant contended that the magistrate mis­ directed himself in law, and that by accepting her evidence but rejecting her claim he also misdirected himself on the evidence. The court considered whether in fact the case did not fall within the law of nusiance rather than within the law of trespass as pleaded. A new trial was ordered. 274