Whether It Is Mandatory for a Petitioner in a Matrimonial Causes Action to Testify Personally Before He/She Will Be Entitled to the Reliefs Sought

CASE TITLE: OLANIYAN v. OLANIYAN (2024) LPELR-62816(CA)
JUDGMENT DATE: 13TH AUGUST, 2024
PRACTICE AREA: FAMILY LAW
LEAD JUDGMENT: MUHAMMAD IBRAHIM SIRAJO, J.C.A.

SUMMARY OF JUDGMENT:

INTRODUCTION:

This appeal borders on dissolution of marriage.

FACTS:

This appeal is against the judgment of the High Court of Lagos State (Coram: Hon. Justice J.O. Pedro (Mrs.), delivered on 05/06/2017.

The Appellant, who was the petitioner at the lower Court, got married to the Respondent at the Marriage Registry, Lagos, on 23/12/1993. The Appellant and Respondent cohabited at Flat 10a, 17/19, Boyle Street, Onikan, Lagos, from the date of marriage until March 2006, when they ceased to live together. As Petitioner, the Appellant filed her Notice of Petition together with the Petition for decree of dissolution of marriage and other originating processes on 18/09/2012. The sole ground for the petition is that the marriage between the parties has broken down irretrievably in that the parties have lived apart for a continuous period of over six years immediately preceding the presentation of the petition. The Respondent filed an answer to the petition in which he urged the Court not to dissolve the marriage as there was no disagreement between him and the Appellant. He also pleaded that the two of them owned some named properties jointly, including a company. The Respondent’s answer elicited the filing of a reply by the petitioner. There are no children of the marriage.

Issues having been joined, the petition went into trial with both the Appellant and the Respondent calling a sole witness each. The Appellant’s nephew testified on her behalf while the Respondent gave evidence in person. As PW1, the Appellant’s nephew informed the lower Court that the Appellant lived in the United Kingdom. Exhibits were tendered by both parties. After the adoption of final written addresses by counsel representing the parties, the Court, in a considered judgment dated 05/06/2017, dismissed the Appellant’s petition on the ground that the Appellant did not appear in Court in person to give evidence as proof of her petition.

Peeved by the decision of the Court, the Appellant appealed.

ISSUES FOR DETERMINATION:

The Court considered the following issues:

1. “Whether the lower Court was right in law to hold that the Appellant failed to prove to the Court’s satisfaction that the parties to the marriage had lived apart for three (3) years in order to show that the marriage had broken down irretrievably.”

2. “Whether the lower Court was right in law to hold that the only mode of satisfaction for an order of dissolution of marriage is for the Petitioner to give oral testimony of that fact.”

DECISION/HELD:

In conclusion, the appeal was allowed.

RATIOS:

• APPEAL- BRIEF OF ARGUMENT: Effect of failure of respondent to file brief of argument in an appeal; whether the case of the appellant will automatically succeed
• COURT- POWER OF COURT: Purpose and scope of the powers of the Court of Appeal under Section 15 of the Court of Appeal Act; conditions that must exist before the Court can invoke and exercise its powers under this Section
• EVIDENCE- CALLING OF WITNESS(ES): Whether a party must be physically or personally present to give evidence before he can defend a case
• MATRIMONIAL CAUSES- DISSOLUTION OF MARRIAGE: Statutory provision as regards grounds for dissolution of marriage
• MATRIMONIAL CAUSES- DIVORCE PROCEEDINGS: Rules of evidence applicable to matrimonial proceedings
• MATRIMONIAL CAUSES- DISSOLUTION OF MARRIAGE: What a petitioner must establish under Section 15(2)(f) of the Matrimonial Causes Act
• MATRIMONIAL CAUSES- MATRIMONIAL PROCEEDING(S): Whether it is mandatory for a petitioner to testify personally before he/she will be entitled to the reliefs sought

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