Moses Oghenerume Taiga V. Nneka Mercy Moses-taiga (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

SIDI DAUDA BAGE, J.C.A (Delivering the Leading Judgment)

This is an appeal against the judgment of Oyefeso J. sitting at High Court of Lagos State, Ikeja Judicial Division, delivered on 11th April, 2008 in which the Appellant was the claimant. The Notice of Appeal filed by the Appellant to initiate this action is dated the 12th of May 2008, and contains six (6) grounds of Appeal.

The background facts to this action is as contained in the statement of claim filed by the claimant/Appellant at the lower court are as follows:-

(1) The claimant has a subsisting statutory marriage with the 2nd Defendant although they are estranged. On 21st December 1974 both parties were validly married in the St. James Anglican church at Benin city in accordance with the provisions of the marriage Act 1914 (The Act) by virtue of provisions of the Act, the marriage is a monogamous marriage.

(2) The parties lived together until 1994 when they separated. The claimant soon took up cohabitation with a woman who is not a party to this action and there are four children of their family.

(3) The claimant had a chequered relationship with the 1st Defendant firstly about June 1992 lasting about 18 months and secondly in about early 1999. At all material times the 1st Defendant was a girl friend or at bests a mistress to the claimant.

(4) At all material times the 1st Defendant was aware of the facts stated in paragraph 1 above.

(5) There are two twin daughters of the former relationship between the claimant and the 1st Defendant both born on 20th June, 2001.

(6) The 1st Defendant parades herself as the claimant’s wife when in fact she has never been married to him.

(7) On the 19th February 2003, the 1st Defendant presented a divorce petition against the claimant in case No.FD03D02234 in the family Division of the High Court of Justice in London. In this petition she alleged that on 22nd December 1993 the claimant contracted a Customary Marriage with her at Utogba-Uno in Kwale Town in Ndo Kwa West Local Government Area of Delta State by virtue of native law and custom. This assertion was supported by the affidavit of one Chief Edwin Nzele sworn on 12th March 2003 describing the allege ceremony on 22nd December 1993 as he witnessed it.

(8) The claimant avers as follows:

(a) There was no ceremony whatsoever involving the claimant and the 1st Defendant on 22nd December 1993.

(b) Even assuming there was such a ceremony (which is denied) by virtue of the account given of the allege ceremony by an allege witness such ceremony did not create a valid Customary Marriage since, on the account given, it was not performed in accordance with Ukwani native law and custom (the customary law that applies to the 1st Defendant).

(c) Even assuming such a ceremony took place and was performed in accordance with Ukwani native law and custom (both of which are denied) by virtue of the claimant’s pre-existing and subsisting statutory marriage with the 2nd Defendant on 21st December 1974, such ceremony was not only void, but is of no legal effect whatsoever and was incapable of attracting neither a decree of divorce nor a decree of nullity.