CASE SUMMARY OF:
Dr. Osadiaye Osamwonyi v. Itohan Osariere Osamwonyi (1972) - SC
Consent before marriage;
Dissolution of marriage;
Dr. Osadiaye Osamwonyi
Itohan Osariere Osamwonyi
(1972) All N.L.R 792;
(1972) 10 S.C. 1;
LEAD JUDGEMENT DELIVERED BY:
A. Fatayi-Williams, J.S.C.
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Bank: Zenith Bank.
Name: Branham Paul Chima.
Account No.: 2178756839.
LAWYERS WHO ADVOCATED
* FOR THE APPELLANT
- G. M. Boyo
* FOR THE RESPONDENT
The Appellant went through a form or ceremony of marriage with the respondent at the Marriage Registry at Lagos.
Later on the Appellant 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;
This was based on the allegation that the respondent was married to one Patrick Goubadia prior to the marriage between the Appellant and the respondent.
In reply to the petition filed, 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.
Finally, the respondent averred that the Appellant knew all the facts about Patrick Goubadia before they were married.
Whether there was a subsisting marriage between the respondent and Patrick Goubadia prior?
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HOLDING & RATIO DECIDENDI
The Supreme Court upheld the trial court's ruling.
i. In the instant cases, learned trial judge, quite rightly in our view, had found, and this was amply supported by the evidence which he had accepted, that under Benin native law and custom, a daughter could not be married off to a man by her parents without her consent.
ii. Moreover, the learned trial judge had the power, and indeed the duty of deciding in the cases in hand which of the two versions of Benin native law and custom, in respect of which evidence was given before him, is more consistent with the principles of natural justice, equity and good conscience. Having considered the totality of the testimony before him, he came to the conclusion that the consent of the bride-to-be was a condition precedent to a marriage under Benin native law and custom. As this is a straight issue of fact, we see no reason to disagree with his findings on this issue. The learned trial judge, rightly in our view, also found that the respondent, at no time, gave her consent to any marriage under native law and custom with Patrick Goubadia and that unless there was cohabitation as well, payment of dowry alone does not constitute marriage under such native law and custom.
Section 33(1) of the Marriage Act (cap. 115):
"A marriage may be lawfully celebrated under this Ordination between a man and the sister or niece of a deceased wife, but save as aforesaid, no marriage in Nigeria shall be valid which if celebrated in England would be null and void on the ground of kindred or affinity, or where either of the parties thereto at the time of the celebration of such marriage is married by native law or custom to any person other than the person with whom such marriage is had"
As the law stands, in order to invalidate a marriage celebrated under the Marrige Act on the ground that, at the time of the aforesaid marrige, there was a marriage under native law and custom by one of the parties still subsisting, that the marriage under native law and custom must be proved with a high degree of certainty. - A. FATAYI-WILLIAMS, J.S.C. Osamwonyi v. Osamwonyi (1972)
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