CHAPTER FOUR

AN APPRAISAL OF ADULTERY AS A GROUND FOR

DISSOLUTION OF MARRIAGE UNDER THE MATRIMONIAL

CAUSES ACT, 2004.

4.1 The provisions of section 15(2)(b) of the Matrimonial Causes Act,

2004.

A court will come to the conclusion that a marriage has broken down

irretrievably where , since the marriage, the respondent has committed

adultery and the petitioner finds it intolerable to live with1. The section

effected a major change in the concept of adultery as a fact on which the

court may dissolve a marriage.2 Before 1970, the mere proof of Adultery

was sufficient to ground a decree of divorce. But under the Matrimonial

Causes Act, this is no longer the case.3 The petitioner has to prove now

merely the commission of adultery by a spouse but also that the petitioner

finds it Intolerable to live with. Consequently, in order to satisfy the

subsection two elements must be established. The commission of adultery

and the petitioner finding it Intolerable to live with the respondent. In

addition, it has to be established that these factors occured after the

celebration of the marriage.

Adultery under the Act may be defined as voluntary sexual intercourse

between a married spouse and a third party of the opposite sex, not being

1
By Section 15(2)b of the Matrimonial Causes Act
2
oladele v oladele CCHCJ ( 1990)119
3
Section 21 of MCA

1
the husband or wife during the subsistence of the marriage4. The element

of freewill is fundamental to the concept of adultery. As the intercourse

must be voluntary, a tape is obviously excluded . Sexual intercourse

between homosexuals does not come within the definition. Adultery

involves some penetration of the female by the male5. Consequently,

artificial insemination will not amount to adultery. Difficult questions

may arise where a woman was drunk or drugged at the time of the sexual

intercourse so that she could not voluntarily give her consent or that the

consent given resulted from the intoxication. It is however clear that

where the intoxicant was voluntarily consumed with knowledge of it's

liberalizing effect, the spouse may be accused of adultery.

Once a spouse establishes an act of intercourse between the other spouse

and a third party, the burden of proof shifts to the respondent to show that

the intercourse lacked his or her real consent6, but if at the close of

evidence uncertainty exists as to whether these case is immaterial that the

marriage has not been consumated.7

If a woman is accused of commiting adultery is in virgo intacto this is not

conclusive evidence of the absence of adultery. It merely imposed a

heavy burden of proof8.

4
Erhahon v Erhahon (1997) 6 NWLR. pt 510. 667
5
Dennis v Dennis (1956) 2 ALLER 51
6
Radpath v. Redpath. (1950). ALLER. 600 CA
7
Patrick v. Patrick. 1810. ALLER. 600
8
Chalmers v. Chalmers ( 1930) 46 TLR269

2
To establish adultery, there must be penetration of the female organ by the

male organ at such gratification other than sexual intercourse is not

adultery. Mere familiarity and fondness is not adultery unless there, it is

shown by evidence that there was an opportunity to commit adultery and

the parties cannot explain9. The respondent and co respondent were fund

of each other . They were found kissing. It was established that before

then they have been together for 5 hours through which they cannot

account for it. The supreme Court held it was proper to draw an inference

of Adultery because they could not account what they were doing and

amounted to adultery. Where a spouse contacts veneral disease, a

presumption of adultery is raised. Where a spouse leaves his matrimonial

home to live with another, a presumption of adultery is raised10 . A

correspondent must be made a party to adultery.11

4.1.2 STANDARD OF PROOF OF ADULTERY.

The commission of adultery is a matter of fact which under the MCA

must be priced to the satisfaction of the court 12 to attain in this standard of

proof the evidence must be such as satisfies the court as to the truth of the

alleged adultery. 13

Generally, divorce is viewed as a catastrophic process that emphasizes the

9
Akinyemi v. Akinyemi (1984) ALLER 251
10
Evaroja v. Evaroja (2001) ALLER 456
11
Section 32 of the MCA 2004
12
Section 82 of MCA 2004
13
Briginshaw v. Bringinshaw 1939. 60CLR 336

3
guilt or failure of the parties and leading to post-divorce situations of guilt

and shame.14There were many consequences associated with divorce as it

affected so many things that were connected to matrimonial relationship.

Thus, it was observed by the English

Court of Appeal in the case of Watchel v. Watchel, 15that: ‘If a person was

the guilty party in a divorce suit, it went hard with him or her. It affected

so many things. The custody of the children depended on it. So, did the

award of maintenance. To say nothing of the standing in society! So

serious were the consequences of divorce that suits were contested at

great length and at much cost’. The commission of adultery has led to

divorced which has caused failure of many marriages in the world. This

has led to a lot of hardship on the parties and the children of the

marriages dissolved. However, the sole ground on which a petition for

divorce may be presented to the court shall be that the marriage has

broken down irretrievably16 and the petitioner must satisfy the court of

one or more of the eight facts provided under section 15(2) of the Act. 17

Under section 15 (2) (b) of the Matrimonial Causes Act, 18 there is an

irretrievable breakdown of marriage where, since the celebration of the

14
B.O. ALLOH,, Department of Jurisprudence and International Law, Faculty of Law, Delta State

15
E.I. Nwogugu, Family Law in Nigeria (1985), (Ibadan, Heinnemann Press). p. 135.

16
J. M. Eekelaar ‘The Place of Divorce in Family Law’s New Role’ (1975) Modern Law Review, (38) (3) 241, 248.
17
Matrimonial Causes Act, Laws of the Federation of Nigeria, 2004
18
Harriman v. Harriman (1989) 5NWLR (Pt. 119) 6; Anagbado v. Anagbado (1992), 1 NWLR (Pt. 216)

4
marriage, the respondent has committed adultery and the petitioner finds

it intolerable to live with the Respondent. Adultery was defined by the

Court of Appeal, in the case of Erhahon v. Erhahon,19 as consensual

sexual intercourse between a married person and a person of the opposite

sex other than the spouse. Therefore, for a claim of adultery to be made,

the party accused of adultery must have consented to the adulterous act.

As a result, where a woman is raped by a man, other than, her husband,

she cannot be said to have committed adultery because, rape can only

occur when the party claiming to have been raped, did not consent to

have sexual intercourse with the other party. For a party to a marriage to

commit the offence of adultery, there must exist the element of free will

which is fundamental to the commission of adultery. Moreover, where a

spouse gets involved in extra-marital sexual intercourse without his or her

consent, the marital offence of adultery will not exist. Furthermore, where

it is confirmed that a wife is raped by a third party, such forceful extra

marital sexual intercourse will not constitute adultery. 20 Adultery involves

voluntary or consensual sexual intercourse between a married person and

a person, whether married or unmarried, of the opposite sex not being the

other spouse. That is, it is a voluntary sexual intercourse between two

persons of whom one or both are married although not to each other.

Sexual intercourse requires at least partial penetration of the virginal by

19
Matrimonial Causes Act, Laws of the Federation of Nigeria, 2004

20
Clarkson v. Clarkson (1930) 143 LT, 775, per Lord Merrivale.

5
the penis. Adultery is only a symptom of marital breakdown. But it is not

in itself regarded as demonstrating breakdown, unless the petitioner in

addition can satisfy the court that the act of adultery is so offensive and

deeply wounding to him or her that any further married life with the

respondent is unthinkable. This is because, in addition to proving

adultery, the petitioner must also prove that he or she finds it intolerable

to live with the respondent. In the case of Cleary v. Cleary and Hutton, 21

the Appeal held that, the adultery fact can be established provided the

petitioner genuinely finds it intolerable to live with the respondent even if

the adultery has not played any significant part in the breakdown of the

marriage.

Thus, a petitioner who seeks for divorce on ground of respondent

adultery, must state that he or she finds it intolerable to live with the

respondent. In the case of Goodrich v. Goodrich22 it was stated by Lloyd-

Jones that what matter is what are the present feelings of the individual

petitioner?

However, it should be noted that, a mere allegation of adultery committed

by either party to a statutory marriage will not be a sufficient proof of the

fact that the marriage has broken down irretrievably to enable the court to

grant a divorce in respect of a petition for divorce. This is because by

implication of section 15(2)(b),23 the

21
[1974] 1 W.L.R. 73
22
23
(1971) 2 all E.R. 1340

6
allegation of adultery alone can no longer entitle a petitioner to be granted

a decree of dissolution of the marriage for which he or she seeks a

divorce. Hence, a petition for the dissolution of marriage on the ground of

adultery will only succeed, if the petitioner testifies also that he or she

finds it intolerable to live with the respondent as earlier stated. The above

fact has been said, to sound like mere technicality, but that it is important.

Thus, it was stated by the judge in the case of Labode v. Labode,24 that

this may sound like mere technicality but the Decree prescribes this

technicality and it is important. Therefore, this paper examines the

technicality of proof of adulteryin divorce proceedings 25. Proof of

Adultery in Divorce Proceedings

Generally, it is not easy to prove adultery in matrimonial proceedings.

Thus, on the standard of proof of adultery in divorce proceedings, the

party that alleges adultery must establish that, there was some penetration

of the woman’s virginal by the man’s penis during the act of sexual

intercourse. However, the act of sexual intercourse need not have been

complete. Thus, in the case of Komolafe v. Komolafe26, the fact that the

respondent saw a lady clad in a wrapper, early in the morning at the

petitioner’s house was held to amount to adultery. In this case, the

petitioner sought for an order for the dissolution of the marriage on the

ground that, the parties to the marriage have lived apart for a continuous
24
Matrimonial Causes Act, Laws of the Federation 2004
25
(1972) N.M.L.R 195
26
(2001) 2 LHCR, (part 17) p. 81 at 87

7
period of at least three years immediately preceeding the presentation of

the petition and the respondent alleged in her cross-petition that, the

petitioner has committed adultery and asked for N500,000.00 damages

for the resultant suffering, and emotional upheaval caused to her. The

allegation was denied by the respondent. However, the only fact that the

respondent seeks to rely in proof of this allegation of adultery, is the fact

that, she arrived at the petitioner’s new house early one morning and saw

a lady in the house clad in

only a wrapper. According to the court, this does not amount to adultery,

and at best shows that the petitioner is familiar with the woman who is

alleged to have committed an adulterous act with the petitioner. The court

further stated that, the facts of the case do not amount to proof of adultery

as these facts do not amount to the existence of a sexual relationship

between the petitioner and the woman alleged. That if the petitioner had

caught both of them in bed in the act of sexual intercourse, then she might

have succeeded in proving that the relationship between the petitioner and

the alleged woman, is an adulterous one and that even if the respondent ’s

own version of the events of their first meeting is to be believed, the

respondent has proved only that, a friendship and no more exists between

the petitioner and the woman alleged. In the case of Erhahon v.

Erhahon27,it was established that, in divorce proceedings, for a case of

adultery to succeed, there must be some penetration of the woman by the

27
(1997) 6NWLR (Pt. 510) 667 at 687

8
man although, the act of sexual intercourse need not have been complete.

Thus, it was found by the court that, the fact that the 1st and 2nd

respondents were caught and photograph sitting down and lying in the

bed, it was not sufficient to prove that they had sexual intercourse.

However, adultery will be sustained if it is proved to the reasonable

satisfaction of the court28. Thus, in the case of Ejimbe v. Ejimbe,29 the

respondent’s allegation of adultery against the petitioner was dismissed

by the court, when the respondent failed to prove the allegation of

adultery to the reasonable satisfaction of the court. However, some judges

have maintained that a higher standard of proof is required to establish

adultery. Thus, it was declared by the court in the case of Ochei v. Ochei30

that ‘in matrimonial proceedings adultery must be proved with the same

degree of strictness as is required for the proof of a criminal offence in a

criminal case’31. Moreover, in the case of Ojo v. Ojo32, it was declared by

the court that, it is trite law that a high degree of proof is required when

adultery is the issue in a divorce petition. In the case of Ogunleye v.

Ogunleye33, adultery was inferred by the court, as a result of the fact that

28
Section 82 of the Matrimonial Causes Act, 2004
29
Suit No. WD/59/86 of 3/3/89, Lagos High Court
30
(1973) E.C.S.L.R 623.

31
(1948) P. 179.
32
(1981) H.C.L.R 236 at p.254.
33
(1979) F.N.L.R, 22.

9
the respondent was living with the co-. respondent in the matrimonial

home as husband and wife at the time when the case was being heard.

Moreover, in the case of Labode v. Labode,34 the diary of the respondent

that was found in her wardrobe contained references to the weekend spent

at the house of the party cited. In her subsequent divorce, these facts were

held to raise a rebuttable presumption of adultery between them.

Furthermore, the court has also inferred adultery as a result of pregnancy

or the birth of a child for a man married under the statute by a woman

other than his statutory wife.35On the other hand, adultery will also be

inferred by the court, when a legally married woman is pregnant of or

gives birth to a child for a man, other than her husband 36. However, a

petitioner who alleges that his wife has given birth for another man must

substantiate the allegation. Thus, it was stated by the court in the case of

Ebinum v. Ebinum,37 that ‘it is not enough for the petitioner to allege that

the respondent gave birth to an unknown person without substantiating

same as such the ground fails’. Moreover, adultery simpliciter does not

establish irretrievable breakdown of a marriage celebrated under the Act.

In addition, intolerability must be alleged by the petitioner and an

allegation of intolerability raises a question of fact. As a result, the

allegation itself will not necessarily suffice for a decree of divorce to be

34
(1972) N.M.L.R, 195
35
Ayoola v. Ayoola Anor. (1979) 2 F.N.L.R, 252.
36
Akparanta v. Akparanta (1970-71) E.C.S. N.L.R, 104.
37
. 10/71HD/85 of 22/4/86, High Court of Lagos

10
granted. The allegation must be proved. Moreover, the petitioner must

explain why he or she finds it intolerable to live with the respondent. In

the case of Ayoola v. Ayoola and Anor,38 intolerability of the alleged

adultery was proved, when the petitioner disclosed under cross-

examination that ‘ after the adultery of the husband) she did not think

that her husband was worth spending the whole of her life-time with, and

peace eluded both herself and her husband. Moreover, in the case of
39
Ambe v. Ambe, intolerability of the alleged adultery was also proved,

when the petitioner moved out of the matrimonial home, when she

discovered that the respondent committed adultery and that she found it

intolerable to live with the respondent.

4.1.3 Nature of Evidence of Non-access and adultery

The nature of the act of adultery makes it difficult to obtain direct

evidence of it's commission. Consequently in most cases, adultery is

usually infered form the conduct of the parties and surrounding

circumstances.

Under40 Matrimonial Causes Act, either part to the marriage may in a

matrimonial proceedings give evidence to prove that the parties did not

have sexual relations with each other at any particular time. But no

spouse shall be compellable to give such evidence it it would show or

38
(1979) 2 F.N.L.R. 252 at p. 254.
39
(1975) N.M.L.R. 28

40
section 84

11
tend to show that a child was illegitimate. By Section 8541, where a

witness who was a party to matrimonial proceedings voluntarily gives

evidence on his own behalf, or he is not a party but is called by a party ,

he may be asked and is compelled to answer a question the answer to

which may show that he has committed adultery. Otherwise a witness in a

matrimonial proceeding, whether a party or not shall not be liable to be

asked or bound to answer a question the answer to which may show that

he has committed adultery. Besides, the rare case of spouse caught in the

act , the court may infer adultery from several circumstances.

4.2 Joinder of Co-respondent.

If in a petition for a decree of divorce a spouse is alleged to have

committed adultery with a specified person, section 32(1) MCA ,

prescribes that the co respondent must be made a party to the

proceedings, unless the rules of court direct otherwise 42. However,

43
where the petitioner alleged in a petition for divorce that the respondent

has committed adultery with a person whose name is unknown to the

petitioner at the time of filling the petition, the suit shall not be set down

for trial unless the court has made an order dispensing with the naming of

that person.44 If the petitioner subsequently becomes aware of the name of

41
Matrimonial Causes Act
42
Order IX Rule 4
43
order IX Rule 3( 1)
44
Order IX Rule 5( 1).

12
the person at anytime before the making of the decree of divorce, 45 he

shall amend the petition accordingly. But where the co respondent dies

after the institution of the proceedings or the filling of the answer but

before the decree is made, the petition or answer shall be amended by

staying the death of the person and the date on which he died.

A person who has been a party to divorce proceedings in accordance with

the above rules may apply to the court to be dismissed from the

proceedings. The court may approve such application if it is satisfied that

the allegation of adultery has not been proved46.

The joinder of the co respondent is mandatory and failure to do so could

amount to a fundamental defect that could defeat the claim based on

adultery. More particularly, since the Matrimonial Causes Act 1857, in a

petition for divorce on the ground of adultery, a co-respondent is a person

charged with misconduct with the petitioner's spouse.47

As of 2007, alleged parties to a spouse's adultery must be made co-

respondents unless they are not named in the petition or the court directs

otherwise.48

In practice, naming such parties in a divorce petition is discouraged as it

may become a barrier to reconciliation. Such parties are only commonly

named if the petitioner is seeking costs against them or has some other

45
Order IX Rule 4
46
section 32 (3) of the MCA
47
Chisholm. H (1911). Vol. 7 (11th ed.). Cambridge University Press. p. 144.
48
Family Procedure Rules SI1991

13
particular reason.49

4.3 Discretionary Statements.

A petitioner or respondent who seeks of divorce or judicial separation on

any fact specified in section 15(2)(a) to g of the MCA, and who has

committed adultery since the marriage, must file a discretionary

statement50 . A discretionary statement shall be in form 30 of the

Matrimonial Causes Rules; and state the particulars of the adultery

committed, the circumstances giving rise to the commission of the act of

adultery, the grounds on which the court will be asked to make a decree

of divorce or judicial separation notwithstanding the Adultery and a

declaration that the petitioner has not committed any other act of adultery

other than the ones mentioned51. Where it is alleged that an act of adultery

stated in the discretionary statement has been condoned, particulas of the

facts alleged to constitute the condonation must also be included in the

statements52.

But where the party who files the statement alleges that he or she is

living as husband and wife with the party with whom the adultery was

committed, it would not be necessary for a further discretionary statement

to be filed stating particulars of any further acts of adultery committed

with that other person53. The discretionary statement of a party to

49
Bond.T(2007). Family Law Oxford: Oxford University Press. 5.
50
Order XI Rule 28 (1
51
Order XI , Rule 29(1)
52
Order XI, Rule 29(2)
53
Rule 29(3)

14
proceedings shall not be filled unless certain conditions are fulfilled. It

must be signed by the party who made it and the facts stated therein

verified by the affidavit of the party. In addition, the statement should be

enclosed in a sealed envelope in which is written the words Discretion

statement. And the number of the proceedings. There should be a

certificate certifying that the statement and the number of the verified and

that it beats the date on which it was signed. Such certificate should , if

the party is represented, he or she should sign the certificate 54. The court

may if it considers it appropriate on the circumstances of the particular

case, require a discretionary statement to be tendered in evidence, read

out in open court or produced for inspection by another party to the suit at

any stage of the proceedings. Except in such situations, a discretionary

statement is not open to inspection by any person other than the Attorney

General of the federation or a person authorized by him in writing55.

Discretion has the meaning of acting on one's own authority and

judgment. In law, discretion as to legal rulings, such as whether evidence

is excluded at a trial, may be exercised by a judge. Some view discretion

negatively, while some view it positively. Discretion exists at all levels of

law enforcement and in many types of front-line bureaucrats. Discretion

has been called "the Art of suiting the action to particular circumstances"

(Lord Scarman). Those in a position of power are most often able to

54
Ibid rule 29 (4).
55
Rule 32

15
exercise discretion as to how they will apply or exercise that power. The

ability to make decisions which represent a responsible choice and for

which an understanding of what is lawful, right or wise may be

presupposed.56

In the legal system, discretion is often defined as the ability of a judge to

choose where, how and with what severity to sentence a person who has

been convicted. A person chooses to utilize his or her options and decides

which to use, whether this is a police officer arresting a person on the

street (criminal) or evicting someone from an apartment (civil) or

anywhere in between57. There are some arguments that implementing

discretion overrules or weakens the rule of law. However, laws cannot be

written without using discretion and therefore the rule of law serves to

guide discretion towards societal expectations, norms and, at least in part,

public interest.58

DAMAGES OF ADULTERY

At common law, damages are a remedy in the form of a monetary award

to be paid to a claimant as compensation for loss or injury 59.To warrant

the award, the claimant must show that a breach of duty has caused

foreseeable loss. To be recognised at law, the loss must involve damage to

56
Thorburn, (2008). "Justifications, Powers, and Authority". Yale Law Journal. 117
57
Thorburn,(2008) Justifications, Powers, and Authority Yale Law Journal. 117.
58
Shan.M (2013). Harvard Journal of Law & Public Policy.
59
Spartan Steel & Alloys Ltd v Martin & Co (Contractors) Ltd [1973] 1 QB 27

16
property, or mental or physical injury; pure economic loss is rarely

recognised for the award of damages60.

Compensatory damages are further categorized into special damages,

which are economic losses such as loss of earnings, property damage and

medical expenses, and general damages, which are non-economic

damages such as pain and suffering and emotional distress 61. Rather than

being compensatory62, at common law damages may instead be nominal,

contemptuous or exemplary.63 against the third party with whom adultery

was committed.

The law has however changed as claims in cases of adultery against a

third party were eradicated in the constitutional matter RH v DE in 2015.

In 2014, the Supreme Court was faced with the question of whether the

claim for insult against a third party in the case of adultery should

continue to exist. DE sued RH for damages on the basis that RH had an

extra-marital affair with DE’s ex-wife. DE claimed that his personality

rights were infringed, more specifically, that his personality was insulted

and claimed for loss of comfort and society of his spouse. DE succeeded

in respect of the claim for insult but was unsuccessful for the claim for

loss of comfort and society, as there was no evidence that the adultery had

caused the breakdown of their marriage.

60
British Celanese v Hunt [1969] 1 WLR 959
61
Electrochrome v Welsh Plastics [1968] 2
62
Cooter. (1985). "Damages for Breach of Contract". California Law Review. 73.

63
Tabcorp Holdings Ltd v Bowen Investments Pty Ltd [2009] HCA 8

17
The Supreme Court further ruled that considering the changing values of

society and the financial and emotional costs of an action of this nature,

the claim based on adultery was outdated and could no longer be

sustained. The court therefore abolished it.

At the Constitutional Court in 2015, the court based its decision on the

fact that love and respect are the foundations of a solid marriage, not legal

rules. It’s the spouses who vow to be truthful and faithful to each other

and therefore they have the obligation to protect and maintain their

marriage and further, the delictual claim violates the right to privacy.

The court further ruled that the idea of sacrosanctity of marriage and the

protection thereof by the law is far different now and has changed with

the times both in the conception of marriage and the punitive measures it

would go to protect marriage.

So as it stands now, third parties to an adulterous relationship can no

longer be sued for damages.

A husband or wife may in a petition for the dissolution of marriage in

which it is alleged that the other spouses has committed adultery claim

damages against the co respondent. If the necessary conditions are

satisfied, the court may award damages 64 the claim can only be made

against the co respondent and both the other spouses involved in the

Adultery. Consequently, only the for respondent can be condemned to

64
Section 31(1) MCA

18
damages65.

The clan must be made in a petition or cross petition for a decree of

divorce in which it is alleged that the other spouses committed adultery

with the co respondent or which includes that the allegation. In Bamgbala

66
v. Bamgbala The parties were married in Lagos in 1972. About April

1973, the respondent formed an adulterous association with the party

cited. The following year, the petitioner was forced by the respondent to

leave the Matrimonial home. In a petition for judicialseperation, the

petitioner alleged adultery with the respondent and claimed damages.

Bada J held that as the petition was for a decree of judicial separation and

not divorce, theclaim for damages cannot be sustained.

Where the Adultery if the respondent with the third party has been

condoned, whether subsequently revived or not, the court will not award

damages. Moreover, the result will be the same if the decree of

dissolution of marriage based on the fact of the adultery of the co

respondent, or facts including that fact, I'd not granted67.

Damages will not be awarded in respect of adultery committed more than

three years before the date of the petition 68. In Williams v. Williams69. The

supreme Court held that the failure of the respondent to prove that the

petitioners adultery alleged in the cross petition occured within three

65
Alabi v. Alabi (2007) 9NWLR pt 1039. 297
66
1976 5 CCHCJ. p 1431
67
Sec 31(2) MCA
68
section 31(3) MCA
69
,( 1974) 1ALLNLR. 363

19
years of the petition was fatal to his claim for damages for adultery.

Furthermore, the the court decided that in awarding damages in respect of

adultery committed within the three years period, it is immaterial if such

adultery forms part of a continuing adulterous association which

commenced prior to such period70.

Where the court orders the payment of damages, it may direct the manner

in which the damages awarded may be applied. If the court finds it proper

to do so, it may direct that the damages shall be settled for the benefit of

the respondent or the children of the marriage71.

While those in section 31 sub1 and 4 are permissible, those of 2 and 3 are

mandatory. Failure to observe the requirements of the later will result in

the court refusal to award damages72.

4.4.1 Basis for Damages.

It has been established that the principle on which damages are awarded

for adultery is that they are to compensate the husband for the loss of

consortium of his wife and the outrage to his honour and family caused

by the adulterer73. The principle was earlier elaborated by McCardie, in

Butterworth v. Butterworth74. And applies equally to each spouse.

Relevant rules of the governing principle

70
Oliver v. Oliver. 1966. Federal law report. 419
71
Section 31( 4) MCA
72
Alabi v. Alabi 2007. 9 NWLR 297
73
Adeyinka v. Ohuruogu) 1965 1ALLNLR 210
74
( 1920) p126

20
I. The actual value of the wife and husband

There are two aspects of this head of claim the pecuniary and the

consortium. The former refers to the loss by a spouse of the services of

the other. In the case of a husband l, for instance, the important

consideration is the loss of the services of the wife as a house keeper, a

mother to his children, and a partner or an associate in his business75. the

supreme Court held that adultery of the co respondent with petitioner

wife did not occasion any loss to the petitioner because as alleged in the

petition and the evidence, the marriage had broken down before the

association with the co respondent began.

With regard to the consortium aspect it seems that in the light of present ,

only the husband is entitled forever to the loss of the society of his wife.

The applicable criteria is the value of the wife. It has been stated in Apena

v. Apena76 In this case, the court awarded only 100 naira in respect of a

wife who continually committed adultery, with the respondent while in

the Matrimonial home.

ii. The injury to a spouse feeling and blow to his honour. The injury and

blow to the honor of a spouse arising from the adultery of the other

spouse depends to some extent, on the conduct of the co respondent. Such

injury may be aggravated by breach of trust or friendship, treachery or

75
Adeyinka v. Ohuruogu ( 1965) ALL NLR.210
76
1965. ALL NLR. 123

21
gross insult in the plaintiff by tht co respondent. In determining damages,

under this head, regard should be paid to changing social norms77.

77
Ambe v. Ambe (1976) 1 NMLR 28

22