Pastor Mathew Alabi Bankole V. Mrs Victoria Anike Bankole (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ADZIRA GANA MSHELIA, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of Majekodunmi J, of the High Court of Justice Sagamu, Ogun State delivered on the 9th day of March 2006.

The facts leading to this appeal are that the petitioner/appellant instituted divorce proceedings against the respondent at the High Court of Sagamu Ogun State on the ground that the marriage has broken down irretrievably. At the expiration of 28 days allowed to the respondent to file her answers to the petition, the petitioner brought an application to have the suit set down for hearing as an undefended suit. Hearing commenced on 1st February 2006, when petitioner gave evidence on his own behalf, It was later adjourned to enable the petitioner tender his marriage certificate, as the one tendered was according to the court a photocopy.

At the resumed hearing on the 9th of March, 2006, petitioner tendered the original certificate which the court rejected on the ground that being a public document only the certified true copy was admissible. The court there and then dismissed the petition. Dissatisfied with the judgment, petitioner appealed to this court vide his notice of appeal dated 29/3/2006 and filed on 31/3/2006 containing three grounds of appeal.

The Grounds of Appeal read as follows:-

“The learned trial judge erred in law when he arbitrarily and in a high handed manner dismissed the petitioner’s case even though the petitioner was yet to close his case thereby occasioning a miscarriage of Justice.

PARTICULARS

(a) An order of dismissal is appropriately made only where a cause is decided on its merit with all the necessary parties before the court and the plaintiff fails to prove his case.

(b) An order of dismissal presupposes that this point of litis contestatio had been reached and there was divergence of the evidence led from the facts which were a fundamental issue.

(c) Although petitioner had led evidence up to the point of tendering of document which was rejected by the judge did not consider the evidence led vis a vis the facts before erroneously dismissing the suit in a rage of fury and high handed manner.

(d) Where the merit of a case has not been determined by the trial court, an order of dismissal is not only a total aberration but also perfidious.

2. The learned trial judgment (sic) erred in law by refusing to admit in evidence the original copy of the marriage certificate tendered by the petitioner on the ground that it was not certified.

PARTICULARS

(a) Petitioner tendered in evidence the original of the marriage certificate issued to him at the marriage registry at the time the marriage was contracted.

(b) Under the Evidence Act documents must be proved by primary evidence except in certain cases where the original is not available.