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Olufela Charles Sowande v. Mildred Benice Sowande. In Re Queen's Proctor

(1963) JELR 41709 (SC)

Supreme Court  •  F.S.C.130/62  •  28 Jun 1963  •  Nigeria

Coram
ADEMOLA ADETOKUNBO C.J.N JSC; JOHN IDOWU CONRAD TAYLOR JSC; BAIRAMIAN JSC;

Judgement

ADEMOLA, C.J.N.: The appellant was the petitioner in a divorce suit in the High Court of Lagos where he prayed for a dissolution of his marriage with the respondent who, he said, had deserted him.

The respondent before the marriage was an American citizen, but was living in London in 1936 where the parties got married and lived together for a time. The respondent now lives in New York. She did not defend the petiton but during the hearing the learned judge invited the assistance of the Queen's Proctor as he felt there were difficulties about the question of desertion, as well as the question of delay in presenting the petition.

The learned judge in his judgement referred to the burden of proof required to prove desertion. The burden, he said, is high and desertion must be strictly proved-Smith v. Smith 1 Sw. andTr 360 (164 English Reports 766) and Galler v. GAller [1954J 1 All E.R. 539. Although the court may infer desertion from the fact that the husband asks the wife to join him and…

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