Joy Oti Olaniyan v. Olufemi Clement Olaniyan (2024)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MUHAMMAD IBRAHIM SIRAJO, JCA (Delivering the leading judgment)

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

The facts of the case leading to this appeal are amenable to easy comprehension due to their straightforwardness.

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 respondents 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 appellants 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 lower court, in a considered judgment dated 05/06/2017, dismissed the appellants petition on the ground that the appellant did not appear in court in person to give evidence in proof of her petition.

Peeved by the decision of the lower court, the appellant approached this court to ventilate her grievance vide a notice of appeal dated and filed on 26/07/2017, predicated on three grounds of appeal. At paragraph 4 of the notice of appeal, copied at pages 125 – 129 of the record of appeal, the appellant sought for the following reliefs:

A. An order of this honourable court allowing the appeal in respect of the petition for a decree for dissolution of marriage.

B. An order of this honourable court setting aside the order made by honourable Justice J. O Pedro (Mrs.) on 6 June 2017 striking out the appellant’s petition.

C. An order granting the reliefs set out in the Petition pursuant to section 15 of the Court of Appeal Act.

Appellant’s brief of argument, filed on 03/07/2019, was settled by James Okoh and Benedicta Onyeodi. Upon being served with the appellants brief, the respondent filed his brief of argument on 22/12/2020. He also filed a motion on notice on 08/01/2021 seeking to regularize his brief of argument which was filed out of time.