Dr. Osadiaye Osamwonyi. V. Itohan Osariere Osamwonyi (1972)

LawGlobal-Hub Lead Judgment Report

A. FATAYI-WILLIAMS, J.S.C. 

On 21st June, 1967, the petitioner, a surgeon, went through a form or ceremony of marriage with the respondent at the Marriage Registry at Lagos. After the said ceremony, the parties lived and cohabited together at the petitioner’s flat on the Lagos University Teaching Hospital Campus, Surulere, Lagos, until 28th June, 1967, when the respondent left for London where she stayed for three months to undergo an in-service training course arranged for her by the Nigerian Prison Service. She returned to Nigeria on 27th September, 1967, and a male child by name Osadebamwen was born by her on 18th January, 1968. The child is still living.

On 6th July, 1968, the petitioner filed a divorce petition in the Benin High Court (Suit No. B/22/68) praying:-

(1) that the marriage in fact celebrated between him and the respondent might be declared null and void;

(2) that the petitioner be granted custody of the said child of the, marriage; and

(3) that the respondent may be condemned in the costs of the suit.

The grounds on which the petition was based are stated in the petition as follows:-

“3. That in 1964 the respondent then Mercy Erabor, spinster was, lawfully married to Patrick Omosiogho Goubadia in Benin City in the Mid-Western State according to Benin native law and custom and that the said marriage was not dissolved until the 14th August, 1967, by the Customary Court No.2, Benin, by an order for a refund of 60(pounds) dowry to the said Patrick Omosiogho Goubadia, according to Benin native and custom.

4. That at the time when the petitioner went through the said form 9 or ceremony of marriage with the respondent, she was already married according to native law and custom to the said Patrick Omosiogho Goubadia in Benin City in the Mid-Western State and the said marriage was subsisting according to Benin native law and custom.
5. The the petitioner was ignorant of the. facts alleged in paragraphs 3 and 4 hereof In that the respondent descnbed herself to him and was known generally as a spinster when the petitioner first met her at Lagos in March, 1967, and at the date of the said form or ceremony of marriage.”

In her reply to the petition filed on 20th August, 1968, the respondent denied being married to the said Patrick Omosiogho Goubadia in Benin City or in any other place according to Benin native law and custom either in 1964 or at any other time. She also denied the marriage under native law and custom alleged in the petition and explained what happened further as follows. In contemplation of a legal marriage under the Marriage Act some time before 1966, the said Patrick Goubadia, unknown to the respondent at the time, went to the respondent’s father and paid him a sum of sixty pounds as dowry. On learning about the payment, the respondent in September, 1966, rejected any proposal by the said Patrick Goubadia for marriage with her and told him so. Whereupon the said Patrick Goubadia, after some abortive efforts to persuade the respondent, abandoned the idea. At no time was the payment of the dowry to the respondent’s father accompanied by any Benin customary marriage rights. The said Patrick Goubadia knew that the respondent was not his wife. With respect to the dissolution of the alleged marriage under native law and custom in August, 1967, the respondent averred as follows:-

“(e) That at no time either before or at the time of the alleged refund of dowry was there any form of marriage subsisting between the said Patrick Omosiogho Goubadia and the respondent and that on the said 14th August, 1967, the respondent was away in the United Kingdom.”

Finally, the respondent averred that the petitioner knew all the facts about Patrick Goubadia before they were married on 21st June, 1967.

The only evidence of the marriage under Benin native law and custom on which the petition was based is to be found in exhibit B, the proceedings in suit S9/97-Gabriel Erabor v. Patrick Omosiogho Goubadia instituted in the Benin City Customary Court No.2 on 14th Agust, 1967. The respondent was not a party to the proceedings in which her father’s claim against Patrick Goubadia was as follows:-

“The plaintiff’s claim is for the dissolution of the marriage between defendant and plaintiff’s daughter Miss Mercy Erabor on refund of 60 (sixty pounds) dowry paid by the defendant on the plaintiff’s daughter since 1964.”

At the hearing in the Benin Customary Court, the respondent’s father testified as follows:-