FOLASHADE IBILOLA OSHODI (PETITIONER)
1. LATEEF ADEBISI OSHODI (RESPONDENT)
2. SIKIRATU ELEMORO (WOMAN-NAMED)
(1963) All N.L.R. 647
Division: High Court of Lagos
Date of Judgment: 12th December, 1963
Case Number: (Suit No. WD/11/63)
Before: Caxton-Martins, Ag.J.
Petition for Divorce.
The petitioner petitioned for divorce on the grounds of cruelty and adultery with one Sikiratu Elemoro, the woman-named. The respondent, a practising Moslem, denied the charges of cruelty and adultery and averred that the woman named was married to him in 1954 under Yoruba Islamic Law and Custom to the knowledge of the petitioner and before the petitioner was married to him under Yoruba Native Law and Custom; and further that the marriage between him and the petitioner in England in 1956 under the Marriage Act of England was a nullity and therefore the petitioner was not entitled to the relief's sought in her petition.
The marriage in 1954 between the respondent and the woman-named and also the marriage in 1955 under Native Law and Custom between the respondent and the petitioner were both valid polygamous marriages which the law of this country allows to run side by side; but the marriage of 1956 under the Marriage Act of England between the respondent and the petitioner was an attempt to super-impose a monogamous marriage upon a polygamous marriage, and so was a nullity.
Had the petitioner and the respondent attempted in 1956 to get married in Nigeria under the Marriage Act, a caveat would have been lodged and might have been successful because of the valid marriage still existing between the respondent and the women-named.
Case referred to:-
Asiata Onikepe v. Cessario Goncallo Vol. I, N.L.R. 41. Act referred to:-
Marriage Act of England.
Marriage Act Cap. 115 sections 33-35.
PETITION for Divorce.
Olakunri for the Petitioner.
Kotun for the Respondent.
Caxton-Martins, Ag. J.:-In her petition dated 27th day of February, 1963, the wife Folashade prayed against her husband Lateef for dissolution of the marriage on the grounds of cruelty and adultery with Sikiratu the woman-named.
In his answer, dated 29-5-63, the husband respondent denied the charges of cruelty and adultery and averred that the Woman named had been married to him under Yoruba Islamic Law and Customs to the knowledge of the petitioner and before the petitioner was married to him under Yoruba Native Law and Customs; further that the marriage between him and the petitioner in England in 1956 under the Marriage Act of England is a nullity, and that in consequence the petitioner is not entitled to the relief's sought in her petition.
I am satisfied on the evidence that between the three parties to this matter the following relationship exists in sequence:-
(i) Valid marriage in 1954 between the respondent and the woman-named under Yoruba Islamic Law and Customs pertaining to the
(ii) Valid marriage in 1955 in 1955 between the respondent and petitioner under Yoruba Law and Custom.
(iii) Marriage in 1956 between the respondent and petitioner in England under the Marriage Act of England.
On the facts, I believe the evidence of the 1st DW, the father of the respondent, the 2nd DW who celebrated in 1954 the marriage between the respondent and the woman-named. I find that the petitioner knew of this marriage of 1954 between the respondent and the woman-named and that in fact all the three lived together as the two wives of the respondent before the respondent and petitioner left for England. I do not believe the petitioner in her denials of the existence, to her knowledge, of the marriage between the respondent and the woman-named. One cannot help observing that throughout the proceedings the parents of or persons in loco parentis to the petitioner were not called on the issues of the marriage between the parties.
A good deal of ground has been traversed and a number of authorities have been cited, which have in greater or lesser degree an indirect bearing on the precise question which has to be decided in this case. Many of the authorities cited by Counsel for the respondent are in respect of proceedings in England concerning marriages which involve a foreigner who had married in his own home under customs acceptable as rendering valid the polygamous marriage with an English lady in England where the only form of marriage is the union of one man to one woman to the exclusion of all other women. In this case the proceedings are taken out in Nigeria but the authorities provide useful guidance particularly for the type of order to be made at the end of the proceedings.
Defence Counsel referred to the Marriage Act, Cap. 115, sections 33-35, Laws of the Federation of Nigeria, 1958. Section 33(i) reads as follows:-
"A marriage may be lawfully celebrated under this Act between a man and the sister or niece of his 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."
I do not think that sections 33-35 of Cap. 115 are of any help to the petitioner but the difficulty is that the marriage under which the petitioner based her petition was celebrated not in Nigeria but in England. If the petitioner and the respondent had attempted in 1956 to get married in Nigeria under the Marriage Act, no doubt, a caveat would have been lodged and might have been successful because of the valid marriage, as I have found it, still existing between the respondent and the woman-named.
There is an old case which I have found and which throws a great deal of light on the issues involved in this case and it is the case of Asiata by her next friend Asiata Onikepe v. Cessario Goncallo decided in 1900 and reported in Volume 1, N.L.R. at 41-45. The head-notes read as follows:-
"A Christian marriage. Ceremony entered into in a Christian country outside the Colony and Protectorate by two professing Mohammedan natives, who have previously in the same country gone through a marriage ceremony according to Mohammedan rites, held not to bind the parties on their return to Lagos, which is not a Christian country, so as to prevent the man from legally contracting a second Mohammedan marriage, and the issue of such a second marriage will be entitled to share with the issue of the first marriage in the succession to the father's estate."
On the facts, as I find them, the valid marriage in 1954 between the respondent and the woman-named and also the valid marriage in 1955 under Native Law and Customs between the respondent and the petitioner are polygamous and which the Law of this country allows to run side by side, but the marriage of 1956 under the Marriage Act of England between the respondent and the petitioner is an attempt to super-impose a definitely monogamous marriage upon a polygamous marriage.
In 1956 when the respondent and the petitioner went through a monogamous form of marriage in England, the respondent was already a married man in Nigeria and according to the tenets of the followers of the Holy Prophet; he was married not only to the woman-named and to the knowledge of the petitioner, but also married to the petitioner herself under Native Law and Custom.
The practical and legal question to be decided in this case is clearly this: will the courts of this country, in deciding upon the validity of an English marriage contracted outside this country, give effect to what is undoubtedly the status possessed by the respondent in this case and before the marriage in England in 1956?
The answer to this question is to be found in the reasoning in the case already referred to of Asiata v. Goncallo. The respondent has not renounced his faith as a follower of the Holy Prophet. The marriage in 1954 between the respondent and the woman-named under Yoruba Islamic Law and Custom is still subsisting. I, therefore, recognise as a fact the respondent's marriage with the woman-named as a valid marriage still subsisting at the time he went through the ceremony of marriage with the petitioner in England in 1956, and therefore declare the ceremony of 1956 a nullity.
In my view, the practical order to make is to refuse every and all the reliefs which petitioner sought from this Court. The petition against the woman-named is dismissed.
Mr Olahunri:- The petitioner; is still entitled to costs; out-of pocket expenses, £16-10s-10d; ask for 150 guineas costs.
Mr Kotun:- The woman-named and the respondent are each entitled to costs.
Court:- Respondent to pay 40 guineas costs to the petitioner and respondent to pay 10 guineas costs to the woman-named.