Mrs. Eyitomi Erin Oyedipe V. Mrs. Abimbola M. Oparison & Anor (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

RITA NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment)

This Appeal emanates from the Co-Respondent, in Suit No.ID/I57WD/92 to a Matrimonial causes proceedings in the High Court of Lagos State, Lagos Judicial Division.

It is against the Judgment of Hon. Justice Moni Fiafade, delivered on the 14th day of January 1999, whereby she found the co-respondent guilty of adultery with the Respondent to the Petition.

The Respondents were husband and wife

The Appellant was consequently told to pay the sum of N100,000.00 (One hundred thousand naira) damages.

SNYNOPSIS OF THE CASE

In a Matrimonial Causes proceedings before a Lagos State High Court presided over by Hon. Justice Moni Fiafade, the Appellant was cited as the co-Respondent. The Suit was for Judicial Separation of the 1st and 2nd Respondents.

The 1st Respondent had alleged that the Appellant committed adultery with the 2nd Respondent claiming the sum of Three Million Naira (N3,000,000.00) as damages.

At the trial, the Appellant did not testify but she filed a separate answer to the petition.

The Appellant had proffered two issues for determination. They are:

1. Is the Lower Court’s finding of adultery against the Appellant sustainable in the light of the manifest deficiencies in the pleadings and evidence of the 1st Respondent on that issue?
2. Assuming, but not conceding, that adultery was established, is the lower Court’s consequential award of damages against the Appellant not liable to be set aside when the award did not reflect or flow from a consideration of the relevant principles and procedure, apart from the fact that such claim could only be made in a petition for dissolution of marriage and not one for a judicial separation as presented by the 1st Respondent?

Submitting that Issue No.1 is distilled from the Appellant’s first ground of Appeal, the Appellant argues that when the petition which is copied at Pages 2 – 7 of the Record states in its introductory paragraph, that it was presented on the grounds of adultery, and that the facts relied on by the petitioner as constituting each ground specified above are as follows:

a) Refusal to consummate the marriage

b) Adultery and intolerability,

Pages 4 & 5 of the Record of Appeal. The facts, he argues are not facts at all, but merely a repetition of the grounds.