OKIDE v. OKIDE (2020)

OKIDE v. OKIDE

(2020)LCN/15301(CA)

In The Court Of Appeal

(MAKURDI JUDICIAL DIVISION)

On Friday, June 05, 2020

CA/MK/150/2016

Before Our Lordships:

Ignatius Igwe Agube Justice of the Court of Appeal

Onyekachi Aja Otisi Justice of the Court of Appeal

Joseph Eyo Ekanem Justice of the Court of Appeal

Between

HENRY OKIDE APPELANT(S)

And

CHIKA OKIDE RESPONDENT(S)

RATIO

CONSIDERATION OF THE PSYCHOLOGICAL WELL BEING OF AN INFANT IN MATTERS OF CUSTODY

There is no doubt that although the preference rule or psychological well being of an infant resorted to by the trial Upper Area Court and affirmed by the Customary Court of Appeal is the first and paramount consideration in matters of custody, it should not be considered in isolation as was held in Williams vs. Williams (1987) All NLR 253 at 259 to 267 where Obaseki, JSC; in his Lead Judgment, reviewed the relevant Laws, Judicial texts as well as English decisions on the vexed issue of custody of children in matters like the one now before us while considering an Appeal from this Court and he agreed at page 259 of the Report with the dictum of Nnaemeka-Agu, JCA (as he then was) who reasoned that the custody of a child essentially entails “not only control of the child but also carries with it the necessary implication of the preservation and care of the child’s person, physically, mentally and morally. In other words, responsibility for the child in regard to his/her needs – food, instruction, clothing and the like (see Wedd vs. Wedd (1984) SASR 104, per Moyo, J., at p. 106). Although Section 71 of the Matrimonial Causes Decree, 1970 treats custody, guardianship, welfare, advancement or education of the child, as if they were separate subjects, it is sometimes difficult to consider any of them in isolation when considering the welfare of a child. They dovetail into each other.” PER AGUBE, J.C.A.

WHETHER OR NOT A DECREE OF DIVORCE OR NULLITY OF MARRIAGE MUST NOT BE MADE ABSOLUTE UNLESS ARRANGEMENTS OF THE WELFARE OF EVERY CHILD OF THE FAMILY HAS BEEN MADE

The above facts not withstanding, as was decided per Belgore, JSC (as he then was) in Odogwu vs. Odogwu (1992) 2 SCNJ (Pt.II) 357 at 373 lines 17-20 (See also (1992) LPELR-2229 (SC) at pages 30-31, paragraphs C-B:-
“Welfare of a child is not the material provisions in the house – good clothes, food, air-conditioners, television, all gadgets normally associated with middle class, it is more the happiness of the child and psychological development. While it is good a child is brought up by complementary care of the two parents living happily together, it is psychologically detrimental to his welfare and ultimate happiness and psychological development if material care, available, is denied him. A decree of divorce or of nullity of marriage must not be made absolute, and a decree of judicial separation must not be granted unless the Court is satisfied that arrangements have been made for the welfare of every child of the family. Welfare of the child is of paramount consideration if possible the Court could consult the child’s wishes in considering what order ought to be made. Re A (An Infant) (1955) 2 All E.R. 202.” PER AGUBE, J.C.A.

WHETHER OR NOT THE APPEAL COURT CAN INTERFERE WITH THE FINDINGS OF FACT OF THE TRIAL COURT

On the authority of Ihunwo vs. Ihunwo (2013) All FWLR (Pt.674) 75 at 90 paragraphs B-C, it is also indubitable as has been held in a plethora of cases, that it is trite that Appeals to Appellate Courts are by way of rehearing and that in rehearing an Appeal, the Appellate Court should reconsider the materials before the trial Court and should not hesitate to over-rule (its) decision even of facts. However, as was decided by the Supreme Court in the recent case of Edosa vs. Ogiemwanre (2019) 8 NWLR (Pt.1673) 1 at 23 paragraphs B-C and 25 paragraphs C-D, following Ogbu vs. Wokoma (2005) 14 NWLR (Pt.944) 118; Ibenye vs. Agwu (1998) 11 NWLR (Pt.574) 372; Okeke vs. Agbodike (1999) 14 NWLR (Pt.638) 215; Nyesom vs. Peterside (2016) 7 NWLR (Pt.1512) 452; Nwokocha vs. A-G, Imo State (2016) 8 NWLR (Pt.1513) 141; Mainstreet Bank Ltd. vs. Binna (2016) 12 NWLR (Pt.1526) 316; this Court like the Apex Court can only interfere with the concurrent findings of a trial Court and the Court of Appeal where such findings are not reasonably justified by the evidence on record thereby occasioning a miscarriage of justice on the Appellant. PER AGUBE, J.C.A.

IGNATIUS IGWE AGUBE, J.C.A. (Delivering the Leading Judgment): By an APPLICATION FOR PETITION FOR DIVORCE dated the 18th day of November, 2014 and filed on the 19th day of November, 2014; the Appellant who was then the Petitioner sought from Respondent the following prayers at the Upper Area Court, Makurdi:-
“25. WHEREFORE the Petitioner prays the Court for the following Reliefs:
(a) Divorce/Dissolution of Customary Law Marriage of the Parties.
(b) AN ORDER that the custody of the only child of marriage be removed from the Motherless Babies Home, Makurdi and be given to the biological father, the Petitioner.”

The Application was predicated by Reasons for Divorce and Reasons for Demanding the Custody of the only Child of the Marriage as can be found at pages 77 and 78 of the Record of Appeal. At the hearing of the case the Appellant as Plaintiff testified and tendered 18 Receipts as evidence that he was responsible for his son’s school fees. Those Receipts were admitted and marked Exhibits “A”-“A18”. He also called a Witness one David Onyeanakwu (the PW2) while the Respondent testified and called Emeka Azifuaku (DW2) but tendered no Exhibits. At the close of evidence and addresses of the learned Counsel for the respective Parties, the learned trial Judge (Ibrahim Mohammed, Esq., CM1), delivered his Judgment awarding custody of the Child of the Marriage Master Chukwuebuka Emmanuel Okide to the Respondent as well as the sum of N30,000.00 (Thirty Thousand Naira) monthly maintenance until it would be necessary to review the order or until the child came of age. See pages 49 to 61 of the Records.

Dissatisfied with the Judgment of the Upper Area Court, the Appellant appealed to the Customary Court of Appeal, Benue State, Holden at Makurdi by a Notice of Appeal with Five Grounds dated 10th June, 2015. After hearing the Parties the Customary Court of Appeal per C.I. Bakare, J., who delivered the Lead Judgment with which Justices C.A. Idye (President/Presiding) and S.S. Chaha (Member) concurred; dismissed the Appellant’s Appeal and affirmed the decision of the lower Court. Aggrieved by the Judgment of the Customary Court of Appeal, the Appellant has again appealed to this Honourable Court by a Notice of Appeal on Four Grounds as reproduced here under albeit without their respective particulars:-
“GROUNDS OF APPEAL:
1. The learned Customary Court of Appeal erred in law by upholding the decision of the trial Upper Area Court when, in resolving the issue of custody and welfare of the child as provided for in our extant laws, they relied on the opinion of a child of ten (10) years in arriving at their decision.
2. The learned Customary Court of Appeal Justices erred in law by upholding the decision of the learned trial Upper Area Court on the interpretation of the word “welfare” of the child and thereby wrongly ruled in favour of the Respondent.
3. The learned Justices of the Customary Court of Appeal erred in law when they relied on ‘tie’ and ‘split’ Custody Order; founded on Statutory and Superior Courts’ authorities, in awarding custody to the Respondent.
4. The learned Justices of the Customary Court of Appeal erred in law by upholding the decision of the learned trial Court, granting a monthly maintenance fee of Thirty Thousand Naira (N30,000.00) only to the Respondent.”
See pages 210 to 228 of the Records as well as 229 to 231 thereof for the Judgment and Notice of Appeal.

Following the transmission of the Record of Appeal hereto, the Appellant’s Brief of Argument dated the 5th day of October, 2017 and filed on the 6th day of October, 2017 was deemed duly filed and served on the 11th of April, 2018 by the Order of this Honourable Court. In the said Brief of Argument settled by P.E. Ikwe, Esq. of Eje P. Ochuokpa & Co. Legal Firm, 2 (Two) Issues were distilled for determination from the Four Grounds of Appeal couched in the following terms:-
“ISSUES FOR DETERMINATION:
1. Whether from the Records, and the extant laws, the learned Justices of the Customary Court of Appeal were right in upholding the decision of the Upper Area Court in awarding the custody of Master Chukwuebuka Emmanuel Okide to the Respondent? (Distilled from Grounds 1 and 2 of the Grounds of Appeal).
2. Whether having regard to the facts of this case and the extant laws, the learned Justices of the Customary Court of Appeal were right in affirming the doctrine of “split” and “tie” and award of N30,000.00 fee (allowance) in favour of the Respondent? (Grounds 3 and 4 of the Grounds of Appeal).”

As for the Respondent’s Brief of Argument dated the 25th of May, 2018 and filed same date, Tarfa D. Achinge, Esq. who settled same adopted the Two Issues as formulated by the learned Counsel to the Appellant as reproduced above.

ARGUMENTS OF LEARNED COUNSEL TO THE PARTIES
ARGUMENT OF THE LEARNED COUNSEL TO THE APPELLANT ON ISSUE NUMBER 1 (ONE):
Arguing this first Issue, the learned Counsel to the Appellant contended that the learned Justices of the Customary Court of Appeal erred in law in their Judgment of the 5th day of May, 2016, affirming the decision of the Upper Area Court in awarding the custody of Master Chukwuebuka Emmanuel Okide to the Respondent. He recalled that in arriving at their Judgment their Lordships quoted copiously from the Judgment of the trial Upper Area Court at page 218 lines 14-22 of the Record of Appeal.

The learned Counsel to the Appellant argued that the preference rule or psychological well being of an infant resorted to/adopted by the trial Upper Area Court as affirmed by the Customary Court of Appeal, although the first and paramount consideration, is not the sole consideration in matters of custody. He then cited and relied on Williams vs. Williams (1987) All NLR 253 to buttress the above submission and added that other fundamental considerations such as a child’s education, good accommodation, security and general needs, ought to have been taken into account as well as the income and positions in life of the parties which are equally important and all which had been shown by the Appellant through the evidence before the Court. Afonja vs. Afonja (1971) UILR 105.

From the foregoing, it was the learned Counsel to the Appellant’s further submission that the concept of Welfare is too wide or extensive to be narrowed down only to psychological well being as held by the Court.

The learned Counsel referred us to pages 21, 205 lines 8-10 of the Record of Appeal to further contend that Master Chukwuebuka Emmanuel Okide, a child of 9 years at the time of trial and on whose evidence the trial Court based its decision, was not matured mentally or developed enough to know where his welfare lay and that the learned Justices of the Court below ought to have given the issue of psychological well being of the child wider consideration and interpretation moreso, as it is clear from the Records that the Appellant who is a Chartered Accountant has been catering for the education and other needs for the proper upbringing of Master Chukwuebuka Emmanuel Okide.

It was his further contention that the Respondent who was granted the custody of the said Child, did not show any iota of evidence that she had any means of income or livelihood but a squatter with her brother, Emeka Azifuaku whose abode is a two bedroom flat with his entire family and it could not be said that the psychological well being of the said Master Chukwuebuka Emmanuel Okide would be guaranteed under such environment. Citing the dictum of Kolawole, J.C.A. in Oyelowo vs. Oyelowo (1987) 2 NWLR (Pt.56) 289 on what Courts have to take into consideration when coming into a decision as to what is in the best interest of children in matters of this nature, he finally submitted on this first Issue that the rightful place of Master Chukwuebuka Emmanuel Okide is his father’s home. We were therefore urged to resolve the Issue in favour of the Appellant.

ARGUMENT OF LEARNED COUNSEL TO THE APPELLANT ON ISSUE NUMBER 2 (TWO):
In respect of the second Issue for determination, the learned Counsel posited that the learned Justices of the Customary Court of Appeal gravely erred in law to have upheld and affirmed the decision of the trial Upper Area Court by holding as they did at pages 221-222 of the Record of Appeal which holding was quoted at page 5, paragraph 4:11 of the Appellant’s Brief of Argument. The learned Counsel noted that their contention is augmented by the Court recognizing the notorious fact that under Customary Law, the father of a child has an absolute right to the custody of the child of the marriage. He noted that the marriage between the Parties was contracted under Customary Law (page 119 of the Records refers) and according to him, Master Chukwuebuka Emmanuel Okide who custody is the issue in this case, was a Child born vide Customary Marriage.

On the book “FORENSIC PSYCHOLOGY” BY LAWRENCE S. WRIGHTS MAN AND SOLOMON M. FULERO, 2ND EDITION AT PAGE 196; which is the Legal Authority that the learned trial Judge based his decision on the psychological well being of the child as against paternity right which same was upheld and affirmed by the learned Justices of the Customary Court of Appeal, it was submitted that the book was authored by an American based on English Law and all decided cases cited in support of their decisions were based on received English Law and not under our Nigerian Customary Law that the marriage in issue was contracted. He further noted that from the evidence on record the marriage between the Parties was contracted under the Native Law and Custom of the Nnobi People of Idemili South Local Government Area of Anambra State (page 19 of the Records refers) and the Court therefore ought to have taken into consideration the principles of Customary Law as it concerns custody of children.

The learned Counsel for the Appellant again relied on the dictum in Oyelowo vs. Oyelowo (1987) 2 NWLR (Pt.56) 259 still on the right to custody of male children to insist that the learned Justices of the Customary Court of Appeal were in grave error in upholding the Judgment of the Upper Area Court awarding monthly allowance of N30,000.00 (Thirty Thousand Naira) to the Respondent. He took the view that there was improper evaluation of evidence by the learned trial Judge in arriving at his Judgment thereby occasioning the Appellant a miscarriage of justice as the Respondent did not lead any evidence in support of the N30,000.00 or as to how the N30,000.00 came about and how it would be applied. It was therefore his further submission that the Court below erred in affirming the decision of the trial Upper Area Court awarding N30,000.00 in favour of the Respondent without proof of how the said amount was arrived about.

On the whole, he urged us to take a holistic look at the entire record with a view to doing substantial justice to the parties as we have the powers to reconsider the entire proceedings in this case. Citing finally the case of Ihunwo vs. Ihunwo (2013) All FWLR (Pt.674) 75 at 908 paragraph C; we were urged to resolve the second Issue in favour of the Appellant and set aside the Judgment of the lower Court, after allowing the Appeal.

ARGUMENT OF THE LEARNED COUNSEL TO THE RESPONDENT ON ISSUE NUMBER 1 (ONE):
Reacting to the argument of the learned Counsel to the Appellant on the first Issue, the learned Counsel to the Respondent referred us to the provisions of Section 23(1) of the Benue State Area Courts Law, Section 69 of the Child’s Right Law, 2009, Section 71(1) of the Matrimonial Causes Act, 1970 as well as the case of Williams vs. Williams (1987) 1 NSCC 455 at 465 lines 19-24; to submit that the interest and welfare of the child basically can be looked from the angle of material needs of the child like food, shelter, access to electronic gadgets and so on and from the psychological angle which emphasizes loving and caring guardians that ensure happiness and moral upbringing of the child which factors must exist together and that the psychological well being of the child and his happiness and welfare cannot be sacrificed on the alter of material provisions. The above position of the law according to the learned Counsel, prompted the pronouncement of Belgore, JSC (as he then was) in Odogwu vs. Odogwu (1992) 2 SCNJ (Pt.11) 357 at 373 lines 17-20.

It was the further submission of the learned Counsel to the Respondent, that it was not in doubt that the Appellant was a man of means, capable of providing for the child of the marriage with adequate materials but that from the evidence at the trial Court, it was obvious that the interest, welfare and happiness of the child would be better with him pitching tent with his mother for the reasons enumerated in paragraph 4:1:3(i) to (iv) pages 6 to 8 of the Respondent’s Brief of Argument which reasons were extracted from paragraphs 5(c), 8(e), 11(e) of the Respondent’s Counter-Affidavit at pages 85-87; page 24 lines 1-5; paragraph 5(c) and (f), 8(d), 9 and 12 at pages 84-90; page 44 lines 20 to page 45 line 4; page 15, lines 3-5; paragraph 8(i) at page 41 lines 5 and 6 and page 40 lines 10-13 of the Records; which warranted the learned Counsel to the Respondent to apply that the boy’s opinion as to who he would want to stay with be sought and which opinion can be found in paragraph 4:1:3(ii) of the Respondent’s Brief of Argument.

The learned Counsel to the Respondent in the light of the above posited that the asking for the boy’s opinion was in order in that a child of ten should be able to know where his interest lies and the Supreme Court had held in Odogwu vs. Odogwu (1992) 2 SCNJ 357 at 373 lines 28-30 per Belgore, JSC (as he then was); that where possible the wishes of the child should be considered. Accordingly, it was submitted that the above Supreme Court decision was in line with the opinion of the learned Authors of “FORENSIC PSYCHOLOGY” cited by the learned trial Judge at pages 59 and 60 of the Record and affirmed by the Court below. We therefore urged to discountenance the learned Counsel to the Appellant’s submission against the reference to the foreign Author at page 6 paragraph 5:13 of the Appellant’s Brief of Argument.

He referred us to the argument of the Respondent in support of the award of the child to her in her evidence-in-chief at page 41 lines 1-6 of the Records as reproduced at page 8 paragraph 4:1:6 of the Respondent’s Brief of Argument which evidence according to him, the Appellant partly corroborated at page 28 lines 2-5 and the Respondent’s evidence-in-chief at page 38 lines 3-13 of the Records. He therefore submitted that it was the fear of being taken to the village and being in custody of an unknown person that prompted his abscondment to meet his mother and finally leaving with the Respondent to Suleja.

He maintained that it would be detrimental to the interest of the Child to award his custody to the Appellant – a father who is a busy Chartered Accountant who keeps late hours, who is fetish and dreaded at home; who does not love his son and who was rejected by his said son (boy) preferring to stay with his mother since the interest and welfare of a child is not all about material provisions but has a lot to do with the psychological well being of the child without which the child cannot enjoy the material provisions. Odogwu vs. Odogwu refers.

It was again the contention of the learned Counsel to the Respondent that in situations like this case where the father has the material resources/provisions and the mother has the love and care needed, the Supreme Court has always advocated a “split order” of the custody of the child to the mother and maintenance to the father. For the above position of law we were referred to Williams vs. Williams (1987) 1 NSCC 455 at 463 lines 10-14; Falobi vs. Falobi (1976) 1 NMLR 169 and in particular the dictum of Upjohn, L.J. cited at page 462 lines 43-49 of Williams vs. Williams (supra).

He contended that the trial Court did exactly what Upjohn, L.J. said as it was clear from the facts of the case that the boy knows that the Appellant has the money but that his mother has the love and that he cannot enjoy his father’s wealth without his mother as also known by his mother from her evidence that though she has the love, time and care for their son, the Appellant’s financial support would be needed to augment what would come from her family as testified by her at pages 33 lines 1-3 and 41 lines 11-13 of the Records which facts the Lower Court took into consideration in making the award of N30,000.00 monthly for the upkeep and the child’s school fees.

Accordingly, in his view, the above award by the trial Court and its affirmation by the Court below was sound both in equity and in law for the fact that even though under most Customary Law systems in Nigeria, the custody of legitimate children is usually given to the father, the Supreme Court has held that the Rule is not followed where the welfare of the child is in jeopardy as was in the case of Okwueze vs. Okwueze (1989) 357 at 364 lines 28-31 per Uwais, JSC (as he then was).

The learned Counsel referred again to the Judgment of the lower Court at pages 219-222 of the Records where extensive findings were made to the evaluation of the evidence of the trial Court in arriving at the conclusion at page 219 lines 4 to 16 of the Records as quoted in paragraph 4:1:11 at page 11 of the Respondent’s Brief of Argument and page 12 thereof. According to him, the findings of the Lower Court as excerpted are not under any interrogation by any of the Grounds of Appeal and accordingly those findings remain valid and subsisting until set aside and that where on Appeal there is no Ground challenging such findings, the Appellant cannot rely on the Omnibus Ground to attack such specific findings. For the above principle reliance was placed on the authority of Mr. Mike Amakeze vs. Mr. Chief Abel Onwudiwe & Ors. (2013) LPELR-20350 (CA) page 20 paragraphs G-B.

The learned Counsel to the Respondent insisted that whereas the Lower Court copiously found that the trial Court did not rely only on the evidence of the Child in arriving at its decision but on the totality of the evidence before the Court, the Appellant not challenging the findings has complained in his Ground 1 of the Notice of Appeal that the award of custody to the Respondent was based on the opinion of the child only which Appellant cannot be allowed to do nor can he complain in his Ground 2 about the Lower Court’s interpretation of the phrase “welfare of the child” in confirming the trial Court’s finding on the issue particularly on the part of the Judgment captured in the whole of page 220 of the Records where the dictum of Belgore, JSC (as he then was) in Odogwu vs. Odogwu (supra) was relied on.

In the final analysis, we were urged to discountenance the submissions of the learned Counsel to the Appellant on this Issue.

ARGUMENT OF LEARNED COUNSEL ON ISSUE NUMBER 2 (TWO):
As earlier argued in paragraph 4:1:8 of the Respondent’s Brief, the learned Counsel posited that the Supreme Court had advocated a “split decision” of custody to a party and the cost of maintenance to the other party in the circumstances where one of the parties has the love, care and time to look after the child and the other party has the material wherewithal and to provide for but lacks the time, love and care to do so.

The learned Counsel reiterated the undisputed fact that the Appellant has the means (his testimony at page 23 lines 20-25 of the Records refer) as well as paragraph 11(d) of the Respondent’s Counter-Affidavit at page 90 of the Records; and page 223 lines 15-23 of the Records/Judgment of the Court below where their Lordships alluded to this fact. He further referred to page 41 lines 11-13 of the Record where the Respondent at the close of her case prayed the Court to award her N30,000.00 as upkeep of the child and his school fees which claim was not challenged because the learned Counsel to the Appellant knew that Appellant was a man of means. Again, the learned Counsel for the Respondent observed that when Respondent’s Counsel asked for payment of the money upfront for one year, the learned Counsel to the Appellant submitted that payment be made monthly to avoid the possibility of the Respondent spending the money and throwing the child into hardship (page 48 lines 23 to page 24 line 2 of the Records refer).

Also the learned Counsel noted, the learned Justices of the Lower Court found that the trial Court made award which was not opposed by the Appellant because he was a man of means and so there was no basis for making any finding as to the Appellant’s means in the circumstances (page 224 lines 9-21 and the Grounds of Appeal on pages 229-231 of the Records refer).

It was therefore submitted on the above basis that it is difficult to appreciate the submissions of the learned Counsel to the Appellant in paragraphs 4:17 and 4:18 of his Brief of Argument that the Lower Court affirmed the monetary award when there was no iota of evidence at the trial Court on how the sum would be applied in spite of the evidence of the Respondent that the money would be for the upkeep of the child and his school fees. (Page 41 lines 11-13 of the Records refer). He asserted that, that piece of evidence of the Respondent was enough to ground the award and that in custody matters the Court making the order is never functus officio as it is trite law that an order of custody and/or maintenance may, on the application of the father or mother of the child be varied or discharged by a subsequent order. For this submission he referred us to Sections 23(2) of the Area Courts Law of Benue State and 67(6) of the Child’s Right Law of Benue State, 2009; to further contend that if the Appellant has ceased to be a man of means after making the order of maintenance, he has a right to apply to the trial Court for the variation or even a discharge of the order. Again, in his view, if the Appellant feels the money is not being utilized or that his son is not being educated, he can apply for a variation of the order having satisfied the Court on why the variation or discharge should be done which Appellant has not done.

Finally, the learned Counsel observed that the Respondent’s Counter-Affidavit to the Motion for Stay of Execution of the Maintenance Award filed at the lower Court in paragraph 4(a) to (f) thereof at pages 133-141 of the Records show that the maintenance allowance was being judiciously used as Master Chukwuebuka Emmanuel Okide who was then a Primary Four Pupil as at when the order was made, is now a JSS1 Student in Secondary School and in a better accommodation as compared to that offered by the Respondent’s elder brother earlier on. The learned Counsel to the Respondent submitted that if the Appellant had applied to the trial Court for a review of the order of custody and/or maintenance, details would have been furnished him.

In conclusion, we were urged to resolve Issue Number 2 (Two) against the Appellant for the reasons stated in paragraph 5.1(a) and (b) of the Respondent’s Brief of Argument, and dismiss the Appellant’s Appeal.

Before resolving the Issues distilled for determination in this Appeal, it is apt at this juncture to have resumé of the facts of the case as disclosed in the Record of Appeal.

The case of the Appellant who was the Petitioner at the trial Court was that he is a Chartered Accountant who got married to the Respondent (then the Defendant) in 1998 under Native Law and Custom of the Igbos (Nnobi to be precise) and both are from Idemili South Local Government Area of Anambra State of Nigeria. According to the Petitioner/Appellant, since they got married and at all times material to the case, they cohabited together in Makurdi until 17th October, 2014 when she absconded from their matrimonial home and in the course of leaving, went to TENDER MINDS NURSERY AND PRIMARY SCHOOL, MAKURDI and forcefully removed the only child of the marriage by name Chukwuebuka Emmanuel Okide without his consent. According to him, as at when the petition was filed the said Child/Son was 9+6 (Nine Years and Six Months) old and an Elementary 4 (Four) Pupil at the aforementioned school.

On the 17th of October, 2014 he drove to Tender Minds Nursery and Primary School to pick up his son but was informed by the School Authorities that his mother came to School and deceptively took the boy to an unknown destination. The Appellant was then forced to go in search of the boy until information reached him that the Respondent had taken their son to Suleja in Niger State and in custody of the Respondent’s brother (the DW2 Emeka Azifuaku). He then reported the matter to the Social Welfare under the Ministry of Women Affairs who advised him to report the matter to the Commissioner of Police, Benue State who upon the report being lodged, detailed some Police Officers to proceed to Suleja and with the help of the Niger State Police Command arrested the Respondent, her brother Emeka and together with his (Appellant’s) Son brought them to Makurdi.

Back to Makurdi, the matter was referred to the Welfare Officer of the Social Welfare Office who could not resolve the issue of custody of their Son and then took the boy to the Motherless Babies Home at High Level to his embarrassment and agony.

Since the issue of divorce is not contested here on Appeal but the crux of the matter is the custody of their Son, the Petitioner/Appellant had stated in paragraphs 18 to 24 of his Petition the Reasons for Demanding the Custody of the only Child of the Marriage: that he was one time a Lecturer at the Benue State Polytechnic, Ugbokolo and a Chartered Accountant by Profession with a Consultancy Firm in Makurdi. He also disclosed that he has landed property both in his Home Town in Idemili South Local Government Area of Anambra State and that as an Accountant and Educationist he was rich enough to train his son to any level. He also claimed that as an ardent Christian he would give the Son a good moral Christian upbringing. The Respondent on the other hand, according to him, had no handwork and was of loose character and very lazy and that being an itinerant house wife, it would not be in the interest and welfare of the child to give her the custody of the Child.

He finally averred in paragraphs 23 and 24 of the Petition that it was not in the interest of the Child to dump him in the Motherless Babies Home when he has a responsible and wealthy father to look after him and that by leaving the child in the Motherless Babies Home, the Child’s education was disrupted and it was not in his interest to disrupt his year of graduation in 2016. He then prayed for the Reliefs set out in paragraph 25(a) and (b) of the Petition.

It would be recalled that the Petitioner/Appellant accompanied his Petition with a Motion On Notice pursuant to Section 23 of the Area Courts Law which Motion dated 18th November, 2014 was filed on the 19th day of November, 2014 praying for the trial Court to grant him an interim custody of his only Son Chukwuebuka Emmanuel Okide who was then at the Motherless Babies Home, pending the determination of the substantive suit.

In the Affidavit of Urgency supporting the Motion, the Appellant repeated the facts pleaded in his Petition but in paragraphs 14 to 21 most importantly averred that his son had been crying and refusing to eat since the 10th of November, 2014 when he was taken to the Motherless Babies Home and that his said son, was not allowed to go to school because the Respondent had been making attempts to abduct the child again from the Home. He further averred that if the custody of his son was not given to him soon, the boy would suffer from psychological trauma and depression and would miss his first term examination for Elementary Four (4) Pupils which was the boy’s class then.

He further stated that if the boy was not released to him, the boy’s educational career would be badly affected for his Son’s custody could not be given to the Respondent who had no business or any forwarding address and who was living a loose life. It was the Appellant’s further case that he lived in his personal House in Makurdi and had the resources to take care of his Son and ensure his moral upbringing and that the balance of convenience was more in giving him custody of his Son than leaving him in a Motherless Babies Home as an Orphan.

It does not appear from the Records that the Respondent filed a Reply to the Petition but from the averments in her Counter-Affidavit to the Affidavit of Urgency filed by Appellant on 18th November, 2014 for an order granting him interim custody of his Son; the Respondent in paragraph 5 thereof gave the detailed circumstances leading to her being driven away by the Petitioner/Appellant from their matrimonial home as follows:-
“5(a) I married the Petitioner on 20/07/1998 and we lived at the Petitioner’s house at Makurdi.
(b) I have an only Son with the Petitioner by name Chukwuebuka Emmanuel Okide. He was born on 30/04/2005 and is currently in Primary 4 at the Tender Minds Nursery and Primary School, Makurdi.
(c) The Petitioner never showed me love as his wife neither did he show love to my Son. The Petitioner’s real gross with me is that I do not support him in fetish practices which he deeply believes in. The Petitioner told me I will suffer since I believe in praying and calling down Holy Ghost Fire instead of joining him in fetish practices.
(d) The Petitioner in keeping with his promise of making me suffer refused to train me in school as he earlier promised my family before I was released to him.
(e) The Petitioner equally refused to empower me to start a business. He gave me N20,000.00 twice to start business and refused to provide food until the money was expended on food. The same Petitioner however could give his relation N300,000.00 to start business.
(f) To demonstrate his hatred for me and anything that has to do with me, the Petitioner refused to give me money to register for anti-natal care when I was pregnant with my son leading to complications at the time of my delivery. The Senior doctor where I was delivered of my baby abandoned me because I did not receive anti-natal care but just came to be delivered of my baby. I was later delivered of my baby after a year and two months following many prayers.
(g) The Petitioner had a lover at Alor, Idemili South Local Government of Anambra State by name Adeobi Onyemesili, a divorcee, whom he used to visit almost every weekend.
(h) On 15th August, 2014, the Petitioner traveled to the village and came back with a grown up boy of about 18 years whom he identified as Tochukwu Okoligwe claiming he met the boy at a beer palour at Alor, Idemili South Local Government of Anambra State. The Petitioner had earlier told me he intended to bring into our home a boy from a beer palour at Alor who had expressed intention to live with him.
(i) My instinct correctly told me that the said Tochukwu Okoligwe was the Son of the Petitioner’s lover at Alor who operates a beer palour and I refused to accept the boy into our home. A quarrel ensured over my refusal to accept the boy and the Petitioner beat me up thoroughly with a stick on 21st August, 2014 and thereafter called two of his family relations namely the owner of D.O. Brother’s Supermarket and Moses Duru claiming I held him hostage and wanted to kill him.
(j) The two men came and inquired into the matter and advised the Petitioner to return Tochukwu Okoligwe to Alor for peace to resume in our home.
(k) The Petitioner heeded this Counsel and took Tochukwu Okoligwe back the next day and returned only to refuse to eat my food that he had been told by the mother of Tochukwu Okoligwe that I will kill him if he continued to eat my food.
(l) On 29th October, 2014, at about 6am, the Petitioner asked me to gather my things and leave his house. The Petitioner called his town’s men by name Sunday Enechukwu and Obi Enugo as well as my relation, Jude Onyeajagwa and told them of his decision to send me away from his house.
(m) The Petitioner’s reason for sending me away was that he overheard me discussing with my elder brother by name Ifeanyi Azifuaku that I wanted to kill him. The Petitioner insisted that I should leave his house the 29th October, 2014 when he spoke to me about the issue but due to most plea from my relations agreed to give me one more day to gather my things before leaving.
(n) The next day being 30th October, 2014, I prepared my bag to leave and carried my son along with me and left the house in the presence of the Petitioner and went to Benue Links Park to board a vehicle to Abuja when the Petitioner came after me and pulled my Son from me at the Park. I stayed back that day and finally left Makurdi the following day being 31st October, 2014 to Suleja where I lived with my elder brother by name Emeka Azifuaku.”

In paragraphs 6, 10-14 she further averred thus:-
“6. That paragraphs 6, 7, 8, 9, 10, 11, 12, 13, 14 and 15 of the Affidavit are a mixture of blatant falsehood and misrepresentation of facts. The true state of affairs falsified and misrepresented in the said paragraphs are as follows:-
(a) Failing to leave Makurdi on 30th October, 2014 as in paragraph 5(n) herein, I went to the Park alone on 31st October, 2014 to board a vehicle to Suleja via Abuja when my son called me that the Petitioner was preparing to take him to the village that same day against his wish. My son requested to track me and go with me to wherever I was going and I asked him to pick a motorcycle and meet me at Benue Links Park and he did and I took him along with me without the knowledge of the Petitioner.
(b) On 7th November, 2014 about 5.30am, the Petitioner along with two Police men from Special Anti-Robbery Squad Unit (SARS) of the Benue State Police Command arrested me and my brother Emeka Azifuaku at my brother’s house at Suleja and took us to “A” Division Police Station, Suleja where my brother and I were accused of Child abduction. We were later transferred to the Police State Headquarters in Makurdi the same day and detained till Saturday, 8th November, 2014.
(c) The O/C SARS interviewed us and said it was not a case of abduction and advised the Petitioner to make amends with me and take his son but the Petitioner refused to fix our marriage but simply demanded for his son. The O/C SARS refused to release my son who opted to go with me to the Petitioner and released my brother and I but further detained my son over the weekend to 10th November, 2014 when he was taken to the Welfare Officer at the Ministry of Women Affairs, Makurdi.
(d) The Social Welfare Officer advised the Petitioner to make amends with me and take his son but the Petitioner refused to fix our marriage but simply demanded for his son. My son opted to go with me when interrogated by the Social Welfare Officer.
(e) The Social Welfare Officer asked my son to choose between going with the Petitioner and being sent to Motherless Babies’ Home and my son opted to be sent to the Motherless Babies’ Home rather that going with the Petitioner.
(f) The Social Welfare Officer thereafter sent my son to the Motherless Babies’ Home and requested that the Petitioner and I go and involve our families in negotiations and resolve the issue of who takes custody of my son before returning to take him.
(g) All efforts by my relations and the towns people of Idemili South to open up discussion with the Petitioner on the issue were rebuffed by the Petitioner until the processes in this suit were served on me at Suleja on 20th November, 2014.
10. That paragraph 19 of the Affidavit is false, malicious and mischievous as I have no antecedents of a loose life. I challenge the Petitioner to furnish particulars of my loose life that he is talking about.
11. That in further response to paragraph 19 of the Affidavit, it is the Petitioner that has a life unsuitable for raising alone a son of 9 years old for the following reasons:-
(a) The Respondent earlier married one Chika Anyabolu from Alor, Idemili Local Government in Anambra State and divorced her on allegation of conspiring to kill him. The only daughter of that union still lives with the Petitioner.
(b) The Petitioner has an extra marital affair with another woman at Alor and it is the reason for my current troubles.
(c) The Respondent wants to divorce me on the allegation of conspiracy to kill him, the same allegation levied against the first wife.
(d) The Petitioner is a Chartered Accountant and has several properties including storey buildings at Onitsha, Asaba and Makurdi refused to train me in school or empower me to do business but made me and my son to live in his house like paupers.
(e) The Respondent is deeply involved in fetish practices to the knowledge and annoyance of everybody in his house.
12. That paragraph 20 of the Affidavit is false in that the Petitioner’s wealth is not for the comfort of my son as captured in paragraph 8(c) and (d) herein and the Petitioner is not capable of meaningful moral upbringing of a child as captured in paragraph 11 herein.
13. That paragraph 21 of the Affidavit is false as the balance of convenience, having regards to paragraphs 8 and 11 herein does not lie in releasing my son to the Petitioner but to me. Money is not all that is needed to bring up a child and my elder brothers, Ifeanyi Azifuaku who works in Lagos and Emeka Azifuaku who is a Pastor with Jesus the Hero Ministries, Suleja have undertaken to assist me in training my son as they have always done.
14. That I make this oath in good faith conscientiously believing same to be true and in accordance with the Act, 2014.”<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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RESOLUTION OF ISSUE NUMBER 1 (ONE):
“WHETHER FROM THE RECORD AND THE EXTANT LAWS, THE LEARNED JUSTICES OF THE CUSTOMARY COURT OF APPEAL WERE RIGHT IN UPHOLDING THE DECISION OF THE UPPER AREA COURT IN AWARDING THE CUSTODY OF MASTER CHUKWUEBUKA EMMANUEL OKIDE TO THE RESPONDENT? (DISTILLED FROM GROUNDS 1 AND 2 OF THE GROUNDS OF APPEAL).”
In the resolution of this Issue, it is necessary to reproduce the provisions of Section 71 of the Matrimonial Causes Act CAP. M7, Laws of the Federation of Nigeria, 2004 and Section 23 of the Area Courts Law, CAP.11 of the Revised Edition of Laws of Benue State, 2004; which were called for interpretation in the course of the proceedings at the trial Area Court and the Lower Court (the Customary Court of Appeal) from which this Appeal emanated.
The said Section 71 of the Matrimonial Causes Act with the heading “Powers of Court in Custody, etc.., Proceedings” provides that:
“(1) In proceedings with respect to custody, guardianship, welfare, advancement or education of children of a marriage, the Court shall regard the interests of those children as the paramount consideration; and subject thereto, the Court may make such order in respect of those matters as it thinks proper.
(2) The Court may adjourn any proceedings within subsection (1) of this section until a report has been obtained from a welfare officer on such matters relevant to the proceedings as the Court considers desirable, and any such report may thereafter be received in evidence.
(3) In proceedings with respect to the custody of children of a marriage, the Court may, if it is satisfied that it is desirable to do so, make an order placing the children, or such of them as it thinks fit, in the custody of a person other than a party to the marriage.
(4) Where the Court makes an order placing a child of a marriage in the custody of a party to the marriage, or of a person other than a party to the marriage, it may include in the order such provision as it thinks proper for access to the child by the other party to the marriage, or by the parties or a party to the marriage, as the case may be.”
Section 23 of the Area Courts Law of Benue State on the other hand stipulates thus:-
“(1) In any matter relating to the guardianship of children, the interest and welfare of the child shall be the first and paramount consideration.
(2) Whenever it shall appear to an Area Court that an order made by such Court, should, in the interests of a child, be reviewed, the Court may, of its own motion or upon the application of any interested person, vary or discharge such order.”
I have carefully perused the pleadings of the Appellant and his Affidavit of Urgency as well as the averments of the Respondent in her Counter-Affidavit to the said Affidavit of Urgency in Support of the Application for interim custody and their respective testimonies in-chief and under cross-examination as adduced and elicited at the trial. The portion of the Judgment of the Customary Court of Appeal (the Lower Court) that has generated the Grounds of Appeal from which this first Issue has been distilled has been quoted in paragraph 4.1 of the Appellant’s Brief of Argument and even at risk of repetition I hereby reproduce same herein. It would be recalled that the Honourable Justice C.I. Bakare who read the Lead Judgment of the Lower Court, prefaced the quotation which he lifted from page 37 lines 15-20 of the Records of the trial Judge’s Judgment thus at page 218 lines 10-14:-
“On Issue One, can it be rightly concluded that the learned trial Judge relied solely on the evidence of Master Chukwuebuka Emmanuel? For purpose of clarity, let us refer to the learned trial Judge’s Judgment on page 37, lines 15-20 where he said:-
“The child in this case, following the preference rule evolved in the book cited above has chosen to stay with his mother. His preference is tied to his welfare which is paramount consideration in issues of custody; the evidence of the Petitioner which is merely tied to paternity right and the means of maintaining the child cannot override the psychological well being in the child. In the present situation, I decline to award the custody of the child to the Petitioner.”
(See page 218 lines 14-22 of the Record of Appeal herein).
The learned Justice of the Customary Court of Appeal also referred to the statement of the learned trial Judge of the Upper Area Court at page 36 line 20 of his Judgment before the decision now complained about which was that: “In issues of custody though fathers have a right over their children, the rider is that the interest and welfare of the child shall be paramount consideration in granting custody. When both parents were tied as to who should have custody of the child, I resort to the psychological jurisprudence of the issue.”

In the instant Appeal, there is overwhelming evidence as copiously pleaded in paragraphs 18 to 24 of the Appellant’s Petition that the Appellant is a man of means, he being a Chartered Accountant who owns a Consultancy Firm in Makurdi and former Lecturer in Benue Polytechnic, Ugbokolo. He also owns landed property both in his home town Alor, Idemili South Local Government Area of Anambra State, Onitsha and Makurdi and by virtue of his standing in society was/is wealthy enough to take care of his son’s education and welfare to any level. He also claimed to be an ardent Christian of the Anglican Communion who should have been able to inculcate sound moral and Christian virtues in his son.

The Appellant’s evidence at the trial Court can be found at pages 19 to 28 of the Records. At page 21 lines 8-17 of the Records, Appellant had testified in-chief that:-
“I registered my son in the School. I pay the school fees. All the receipts for the payment of fees from the Nursery School up to date are here.
Ndefor, Esq.:- I seek to tender the receipts of the school fees of the child to show that the Petitioner has been responsible for the payment of his child’s school fees.
Achinge, Esq.:- No objection.
Court:- The receipts tendered by the Petitioner to prove that he paid his son’s fees from the year 2010 to date which are eighteen (18) in number are admitted in evidence as Exhibits “A1” to “A18”.”

Those Receipts have been availed us and carefully examined and they bear true testimony to the fact of the Appellant’s capabilities as enumerated earlier as far as taking care of the welfare of the only child of the marriage is concerned. Indeed, the Respondent admitted the fact that the Appellant was wealthy enough to have taken care of their son who should ordinarily be allowed to be under the custody of the Appellant in the event of the dissolution of marriage when she deposed in paragraph 11(d) of her Counter-Affidavit that: “The Petitioner is a Chartered Accountant and has several properties including storey buildings at Onitsha, Asaba and Makurdi.” However in the said sub-paragraph she added that the Appellant “refused to train me in school or empower me to do business but made me and my son to live in his house like paupers.”

In the subsequent sub-paragraph (e), the Respondent disclosed that: “(sic) The Respondent (Petitioner?) is deeply involved in fetish practices to the knowledge and annoyance of everybody in his house;” and in paragraphs 12 and 13 of the Counter-Affidavit denied paragraph 20 of the Appellant’s Affidavit as false in that the Petitioner/Appellant’s wealth is not for the comfort of their son as captured in paragraphs 8(c) and (d) of the Counter-Affidavit because the Petitioner is/was not capable of meaningful moral upbringing of the child as captured in paragraph 11 thereof.

Furthermore, paragraph 21 of the Petitioner/Appellant’s Affidavit was denied as false as the balance of convenience, having regards to paragraphs 8 and 11 of the Counter-Affidavit did/does not lie in releasing her son to the Appellant but to her. According to her, “Money is not all that is needed to bring up a child and my elder brothers, Ifeanyi Azifuaku who is a Pastor with Jesus the Hero Ministries, Suleja have undertaken to assist me in training my son as they have always done.”

It would be recalled that in paragraph 7 of the said Counter-Affidavit the Respondent denied paragraph 16 of the Appellant’s Affidavit as a brazen and palpable falsehood as her son referred to in the said paragraph 16 would rather suffer psychological trauma and severe depression if released to the Petitioner. The Respondent then catalogued the evidence of the Appellant’s hatred for their said son in paragraphs 8(a)-(j) and 9 of the Counter-Affidavit as follows:-
“8. That further to paragraph 7 herein, I aver as follows:-
(a) The Petitioner has no iota of love for my son Chukwuebuka Emmanuel Okide.
(b) The Petitioner did not care for my son right from the womb as already captured in paragraph 5(f) herein.
(c) The Petitioner refused to enroll my son in school despite much pleading from me. When my son was about four years old, I pleaded with my elder brothers, Ifeanyi Azifuaku and Emeka Azifuaku to give me money to enroll my son in school and they did. My son started nursery three because of the delay and I, supported by my elder brothers, paid the fees from the date of enrollment until this term when the Petitioner paid my son’s fees. The records of the school and the staff of the school can attest to this.
(d) The Petitioner never cared for the comfort of me and my son. The little comfort my son ever enjoyed was Courtesy of me. When Tochukwu Okoligwe was brought to our home, the Petitioner unlike him bought fuel and put on generator at night when public power supply was out and would always come home with bread and other food items. My son refused to eat all that because they were not meant for him as he was not used to enjoying same.
(e) My son as young as he is knows of the Petitioner’s love for fetish practices and it is one reason he has refused to pitch tent with the Petitioner.
(f) When my son was further detained at the State CID as in paragraph 6(c) herein, the Petitioner only gave him food on Friday, 7th November, 2014. It was me that fed, cared for him and kept him company throughout the weekend till Monday, 10th November, 2014 when he was taken to Social Welfare Office, Makurdi.
(g) My son in a bid to link up with me looked for a phone and called me and tracked me at the Park and went with me to Suleja without the knowledge of his father who earlier took him forcefully from me as in paragraph 6(a) herein.
(h) My son has opted to remain in a Motherless Babies Home rather than going with the Petitioner as in paragraph 6(e) and (f) herein.
(i) The Petitioner is a busy person with the habit of keeping late hours and cannot take care of a child of 9 years old.
(j) My son is of age and will confirm before this Court if asked that he would rather live with me than the Petitioner.
9. That paragraphs 17 and 18 of the Affidavit are false in that the Petitioner does not intend to allow my son continue schooling at his present school but intended to take him to the village as captured in paragraph 6(a) herein.”

The Respondent’s evidence-in-chief and under cross-examination are in pages 33 to 42 of the Records and she had also chronicled the degree of neglect and deprivations she and her son were subjected to by the Appellant culminating in her (Respondent’s) abscondment with their said son to Suleja and her subsequent arrest together with her Senior brother and even their said son who were detained at the “A” Division of the Suleja Police Station and subsequently by SARS/State CID, Makurdi. The Respondent also related how and why their son opted to remain in the Motherless Babies Home initially rather than being in the custody of his father. See pages 39 to 41 of the Records where the Respondent also related how they went to the Social Welfare Office in an attempt to resolve the misunderstanding between her and the Appellant and how their son was detained there from Friday till Monday in the cell with grown-up suspects.

She further testified as to what transpired at the Social Welfare Office on Monday when their said son was asked to determine where to stay between the two parents until the matter was determined and the boy opted to follow his mother but the Appellant swore over his dead body that this would not happen. The Social Welfare Officer then stated that if the Appellant insisted on having the boy’s custody without the boy’s consent, she would refer the boy to the Orphanage and the Appellant said he would prefer that.

The Respondent also testified that the Social Welfare Officer turned to his son and asked him where he would prefer to stay and the boy chose to go to the Orphanage rather than follow his father and that was how their said son came to be at the Orphanage.

Recall also that the Respondent had testified as to how even after the Appellant had pursued her to Benue Links Park and pulled the boy away from her on 30th October, 2014, the following day being Friday the 31st day of October, 2014, while the Respondent was back to the Benue Links Park, her son called her with his phone asking of her where about and she explained that she was at the said Park where his father had snatched him from her the previous day. Upon being asked why the inquiry about her where about, the said boy replied that he was coming to meet her and he was then instructed to pick an Okada (Commercial Motor-Cyclist) from his destination and when their said son arrived, he informed her (Respondent) that his father told his elder brother to prepare him so as to travel with him to the village for Tochukwu’s mother to take care of him. Their son also informed her that his Senior Sister told their father (Appellant) that he (the son) was waiting (writing?) test at school but his father insisted on going to the village with him so that he would no more go to school and that was the reason why he (the boy) ran away from the house to follow the Respondent (See pages 37 and 38 of the Records).

On the reasons why she would want the custody of their son to be given to her, the Respondent testified at page 41 lines 1-9 of the Records that the child was too fond of her and he was always sick such that he needed her attention particularly as there was no body in the house to take care of the child more so, as the Petitioner/Appellant’s daughter would be proceeding for her Youth Service at the end of February, 2015 and the Appellant (her husband) comes back late in the night. Finally as for the reason why the boy would prefer to remain at the Orphanage she explained that it was because he would want his parents to be reconciled so that he could come back to both of them.

In the face of the irreconcilable positions of the Appellant and Respondent on who should have custody of the only child of their marriage, the Court through the Application of the learned Counsel to the Respondent ordered that the boy be produced in Court and his opinion sought as to his custody. On the 12th of May, 2015, Master Chukwuebuka Emmanuel Okide was called and at pages 44 lines 20-22 to 45 lines 1-4 of the Records, he testified thus:-
“I am ten (10) years old. I want to stay with my mother. My mother cares for me. If I tell her something she will not be angry with me. But for my father if I ask him for something he would be angry with me and he would refuse to give me that thing.
If I request anything from my mother and she does not have, she would not be angry with me. That is all.”

As was rightly submitted by the learned Counsel to the Appellant and going by the dictum of Kolawole, JCA in Oyelowo vs. Oyelowo (1987) 2 NWLR (Pt.56) 239 at 351 paragraphs F-H; in coming to a decision as to what is in the best interest of the children of a marriage that is the subject matter of a divorce suit as provided in Section 71(1) of the Matrimonial Causes Act, 1970 whereby the Courts are enjoined in dealing with questions of custody, welfare, advancement or education of children of the marriage; to regard the interest of the children as paramount consideration, it is indubitable that Judges as members of the society and men of the world will have to take cognizance of what the trend is in the society they live. According to the learned Justice of the Court of Appeal (as then was):-
“The Matrimonial Causes Act is a Nigerian Legislation; it is not a foreign law neither is it a Law for the elite.
The law must therefore be construed bearing in mind the prevailing situation in the society.
In the Nigerian context particularly around the area of jurisdiction of the Court in which the decree was pronounced, male children or the eldest male child occupies a prominent position in Yoruba Family of the father. He is called the Dawodu and to be regarded as such the rightful and natural place is the father’s home. No evidence is required to come to such conclusion.”
Ordinarily, the same situation should have been applicable to the Appeal at hand where the parties are from Alor and Nnobi in Idemili South Local Government Area of Anambra State and by Igbo Custom, the son whose custody is being contested is the first and only son of a Customary Law Marriage of the parties. He is the Diokpala, Okpala, Opara or Okpara of the family and as such the rightful and natural place is his father’s home. Coupled with the fact that his father is well to do and is capable of providing him with all the necessities of life for his welfare, advancement or education, custody ought to be given to the Appellant particularly as the Respondent is a woman of straw.
The above facts not withstanding, as was decided per Belgore, JSC (as he then was) in Odogwu vs. Odogwu (1992) 2 SCNJ (Pt.II) 357 at 373 lines 17-20 (See also (1992) LPELR-2229 (SC) at pages 30-31, paragraphs C-B:-
“Welfare of a child is not the material provisions in the house – good clothes, food, air-conditioners, television, all gadgets normally associated with middle class, it is more the happiness of the child and psychological development. While it is good a child is brought up by complementary care of the two parents living happily together, it is psychologically detrimental to his welfare and ultimate happiness and psychological development if material care, available, is denied him. A decree of divorce or of nullity of marriage must not be made absolute, and a decree of judicial separation must not be granted unless the Court is satisfied that arrangements have been made for the welfare of every child of the family. Welfare of the child is of paramount consideration if possible the Court could consult the child’s wishes in considering what order ought to be made. Re A (An Infant) (1955) 2 All E.R. 202.”
Further at pages 31-32 paragraphs E-C of the above cited Law Report, the Emeritus Law Lord of the Apex Court posited on the factors to be considered in granting custody of a child thus:-
“If the parents are separated and the child is of tender age, it is presumed the child will be happier with the mother and no order will be made against this presumption unless it is abundantly clear that the contrary is the situation – e.g. immorality of the mother, infectious disease on the mother, insanity, and/or her cruelty to the child. These are matters to be tried. Custody proceedings could even be adjourned to Judge’s Chambers where in an informal hearing, the children’s view could be assessed along with those of the parents. Ojo vs. Ojo (1969) 1 All NLR 434, Apara vs. Apara (1968) 1 All NLR 241.”
In the instant case, the Court of trial followed the above laid down principles when their Lordships even summoned the boy in question and he demonstrated that from his father’s hostile attitude to him and his emotional attachment to his mother who was always at his beck and call when ever in need, his psychological well being would be better guaranteed under the custody of his mother.
The fact that he was of the tender age of 9+ at the time of trial, with immature mental capacity would have rendered him a psychological wreck if subjected to his father’s hostile environment or he was taken to the village to be in the care of his father’s Sugar Mummy who had even sent Tochukwu her son to Makurdi that finally destroyed the marriage of the Okides (Appellant and Respondent). Definitely, when one takes the surrounding circumstances of this case together, the life of Chukwuebuka Emmanuel Okide could be in serious jeopardy if taken to the Village in a strange environment.
Even though the Appellant alleged that the Respondent was loose, no convincing particulars were furnished nor was there evidence that she was/is suffering from any infectious disease or insanity. Thus I agree with the submissions of the learned Counsel to the Respondent that the position taken by Belgore, JSC (as he then was) was in tandem with that of the Authors of “FORENSIC PSYCHOLOGY” BY LAWRENCE S. WRIGHTS MAN AND SOLOMON M. FULERO, 2ND EDITION AT PAGE 196 as cited and adopted by I. Mohammed, Esq. CM1, in his Lead Judgment of the Upper Area Court of the Benue State (See page 117 of the present Records on the decision of the California Court concluding that a child of sufficient age and capacity to reason well enough to form an intelligent custody preference, has the right to have that preference seriously considered).
As can be gleaned from page 118 of the Records, it was in the light of the Authors’ view that the learned trial Magistrate/Upper Area Court II Judge called for the view of Chukwuebuka Emmanuel Okide who opted to be with his mother. Apart from the above, the learned trial Upper Area Court’s Judge cited and relied on Okwueze vs. Okwueze (1989) 3 NWLR (Pt.109) 321 at 334; where the Supreme Court adopted the views of the Authors of the text and the dictum of Belgore, JSC in Odogwu vs. Odogwu (supra); that in general under most systems of Customary Law in Nigeria, the father of a legitimate or legitimated child has absolute right to custody of the child but that however, Customary Law also recognizes that the absolute right of the father will not be enforced where it will be detrimental to the welfare of the child.
The trial Court further found that following the preference rule as evolved in the text above cited, the child had chosen to stay with his mother and his preference is tied to his welfare which is of paramount consideration in issues of custody. As for the evidence of the Petitioner, it was held that it was merely tied to paternity right and the means of maintaining the child which cannot override the psychological well being of the child.
In the light of the foregoing, the learned Counsel to the Respondent rightly submitted on the authority of Williams vs. Williams (1987) 1 NSCC 455 at 463 lines 10-14 where the Supreme Court per Obaseki, JSC allowed the Appellant’s Appeal set aside the decision of this Court and ordered that the Respondent shall have joint custody of their daughter Kafilat Abimbola Williams and that while the Appellant should exercise care and control of the child, the education of the child shall be a responsibility of her father/Respondent.
The Supreme Court in arriving at the above decision had cause to consider the dicta of English Justices in Re W. (An Infant) (1963) 2 All E.R. 706 at 711 per Pennycuick, J.; R.W. (JC) (An Infant) (1963) 3 All E.R. p.462 per Ommerod, L.J, and most importantly that of Upjohn, L.J, at page 465 of the Report who in the situation we have found ourselves where the father has the material provisions but the mother of the child has the love, care and affection needed for the custody of the child (“split order principle”) thus held:-
“It seems to me in those circumstances, quite impossible to construe this Section as giving this very emasculated jurisdiction. The Section plainly gives power to deal with custody not indivisibly but divisibly, that is to say in this sense, that the Court can deal with each and every aspect of the constituent elements of custody. It can give care and control to one parent with access to the other and can vest the remaining constituents of custody in the other as the Stipendiary Magistrates did in this case: Take for example which does not arise here but which I have no doubt does frequently arise, parents may be of different religious belief and I can see nothing whatever to prevent care and control and charge of religious upbringing being committed to one parent and all the other constituents of custody vested on the other. This is a question of discretion in each case.” See page 462 of (1987) 1 NSCC (supra).
I am in total agreement with the learned Counsel to the Respondent that the above was what the trial Court did in this case which was affirmed by the Lower Court and as I had earlier held, whereas the Appellant had the means, the Respondent has the love for their son and whereas the son would have preferred a situation where he would be brought up in a harmonious atmosphere because of the status of his parents he preferred the custody of his mother where his psychological development would be better guaranteed. On her part, the Respondent also knows that because of her financial incapability, she would need some money from the Appellant to augment whatever she could get from her family, hence the demand for the sum of N30,000.00 monthly to supplement the upkeep of the child and school fees.
The trial Court having taken into consideration the above circumstances, in line with the provisions of Section 71(1) of the Matrimonial Causes Act, CAP. M7, Laws of the Federation of Nigeria, 2004; Section 23(1) of the Benue State Area Courts Law, and Section 69 of the Child’s Right Law of Benue State, 2009; which emphasize the paramount consideration of the interest of the child in terms of his/her welfare, came to the inevitable conclusion that the interest of Chukwuebuka Emmanuel Okide would be better served if he was under the custody of his mother/Respondent in this Appeal.
Accordingly, the learned Justices of the Customary Court of Appeal as aptly submitted by the learned Counsel to the Respondent, made extensive findings on the evaluation of the evidence of the parties and their Witnesses before coming to the unimpeachable conclusion that from the printed Records, the learned trial Judge fully considered the provisions governing the proceeding for custody and arrived at the conclusion that the parties were tied as to who should have custody of the child. Their Lordships of the Lower Court were also right to have held that it was obvious that the “tie” referred to by the learned trial Judge at page 36 line 20 of the Records (Page 59 lines 14 of the present Records) did not result from the consideration of the opinion of the child alone.
Their Lordships of the Lower Court were also on firm ground to have held that a perusal of page 36 line 10 of the Records clearly shows that the learned trial Judge carefully considered the evidence of the Appellant together with that of the Respondent regarding the issue of custody and then decided that the welfare of the child would be better served by allowing custody to the Respondent. I am in total agreement also that the Lower Court was right to have held that they found no fault with the learned trial Judge’s resolve in considering the evidence of the child along with available evidence before granting his mother his custody.
On the whole, I am of the firm view that from the Records, and the extant Laws on the custody and guardianship of children of dissolved marriage(s) as in this case, the learned Justices of the Customary Court of Appeal were right in upholding the decision of the Upper Area Court awarding custody of Master Chukwuebuka Okide to the Respondent. Issue Number 1 (One) is therefore resolved against the Appellant and in favour of the Respondent.

RESOLUTION OF ISSUE NUMBER 2 (TWO):
“WHETHER HAVING REGARD TO THE FACTS OF THIS CASE AND THE EXTANT LAWS, THE LEARNED JUSTICES OF THE CUSTOMARY COURT OF APPEAL WERE RIGHT IN AFFIRMING THE DOCTRINE OF “SPLIT” AND “TIE” AND AWARD OF N30,000.00 MAINTENANCE FEE (ALLOWANCE) IN FAVOUR OF THE RESPONDENT? (GROUNDS 3 AND 4 OF THE GROUNDS OF APPEAL).”
The grouse of the learned Counsel and indeed the Appellant on this Issue and the Grounds from which it was nominated is the holding of the Court below at page 221 lines 22-26 to page 222 lines 1 of the Records that:-
“From the foregoing, we are of the view that the learned trial Judge was right in deviating from the general Customary Law right of Petitioner over the child since it is the best interest of the child, not the parents, that is of paramount consideration on this.”

It is the contention of the learned Counsel to the Appellant that the learned Justices of the Customary Court of Appeal grossly erred to have so held as quoted above. There is no doubt that the Court below acknowledged the notorious fact that under Customary Law, the father of a child has an absolute right of custody of a child of marriage and that the marriage between the Appellant and Respondent that threw up Chukwuebuka Emmanuel Okide was contracted under Customary Law. See page 221 of the Records where their Lordships alluded to page 37 line 10 of the Record of Appeal from the Upper Area Court and held that the learned trial Judge did not loose sight of the general principle of Customary Law but rightly captured same with due consideration that:-
“In general, under most systems of Customary Law in Nigeria including that of Benue State (which is the lex situs of the contest between the parties) the father of a legitimate child or legitimated child has absolute right to the custody of the child however, Customary Law recognizes that absolute right of the father will not be enforced where it will be detrimental to the welfare of the child.”

I had dealt with this aspect of the grouse of the Appellant in the resolution of Issue Number One (1).

With the greatest respect to the learned Counsel to the Appellant, even though the text “FORENSIC PSYCHOLOGY” by Lawrence S. Wrights Man and Solomon M. Fulero, 2nd Edition at page 196 upon which the learned trial Judge based his decision on the psychological well being of a child as against the paternity right which was upheld and affirmed by the Customary Court of Appeal is authored by an American and all the authorities considered therein were anchored on the received English Law and not Customary Law under which the marriage in issue was contracted, the preference rule or “split” and “tie” concepts have already been entrenched in our jurisprudence as can be found in the dicta of Belgore, JSC in Odogwu vs. Odogwu (supra), Okwueze vs. Okwueze (supra) and indeed Williams vs. Williams (supra) in which as I had held earlier, the Supreme Court respectively adopted the Authors’ views that in general, under most systems of our Customary Laws in this country, the father of a legitimate or legitimated child has absolute right of custody particularly where a male child is involved or is in issue. However, by virtue of the Area Courts Law earlier cited and indeed the Matrimonial Causes Act, the Customary Law also recognizes that such absolute right of the father as insisted by the learned Counsel to the Appellant cannot be enforced where as in this case it will jeopardize or be detrimental to the welfare and psychological well being of the child. Besides, the law is trite that the applicability of any customary law is subject to the repugnancy test, such that where as in this case, the enforcement of the Appellant’s paternity right to absolute custody of the only son of the marriage would have been repugnant to natural justice, equity and good conscience or contrary to public policy, such customary rights would be jettisoned.
This is more so where in this case, from the evidence before the Court, the child had, following the preference rule, chosen to stay with his mother and the preference is tied to his welfare which is of paramount consideration by virtue of the extant Laws earlier cited to wit: Sections 23(1) of the Benue State Area Courts Law; 69 of the Child’s Rights Law of Benue State, 2009 as well as 71(1) of the Matrimonial Causes Act, 2004.
I reiterate as I did earlier on Issue Number 1 (One) that not withstanding the fact that the parties to this Appeal are of Igbo extraction and the dictum of Kolawole, JCA in Oyelowo vs. Oyelowo (1987) 2 NWLR (Pt.56) at 239 that as a male child or children, the right and natural place is their father’s home and that it does not matter how long they stay away from it for they will one day long for it. Nobody is oblivious of the fact that it is in their interest to get familiar with the locality and environment of their father’s home before it is too late for them to be regarded as part of the family of their father.
In the instant case, there is ample evidence that the Appellant was hostile to the child even though he was a man of means and has been responsible for paying the child’s fees from 2010. There is also evidence that the Appellant planned to relocate the child to the village and to leave him under the care of his (Appellant’s) Sugar Mummy which warranted the said child to abscond with his mother to Suleja in his Uncle’s place. Besides, there is also evidence that the said boy chose to remain in a Motherless Babies Home rather than under the custody of his father and when summoned to Court at the trial he chose to be under the custody of his mother who in spite of her lack of means showers him with care, love and affection.
With the greatest respect to the learned Counsel to the Appellant, the learned Justices of the Customary Court of Appeal were not in error to have approved or upheld the decision of the Upper Area Court awarding the Respondent the Sum of N30,000.00 monthly for maintenance and school fees of their son. Rather, as the learned Counsel to the Respondent has rightly submitted, the learned Counsel to the Appellant had at page 48 of the Records during address in lines 23-26 to page 49 lines 1 and 2 of the Records submitted that:-
“Finally on the issue of maintenance, if the Court decides to give custody to the Respondent, the money should be paid monthly to avoid a bulk sum paid thereby throwing the child into hardship.”
Accordingly, it was on the basis of the above submission as rightly pointed out by the learned Counsel to the Respondent, that the learned trial Judge at page 37 line 25 and 38 lines 5-10 of the Judgment of the trial Court held that:-
“The Respondent requested that in the event that she is granted custody of the child, the Petitioner should pay into the Court for her collection a maintenance of N30,000.00 monthly and that the bulk sum of N360,000.00 or N180,000 as yearly or half yearly to be paid to her. The learned Petitioner Counsel objected to that to avoid accumulation and or waste. I agree with the learned Petitioner’s Counsel that the sum shall be paid monthly. In consequence thereof, I hereby make an order for maintenance in the sum of N30,000.00 in favour of Master Chukwuebuka Emmanuel Okide to be paid into the Registry of the Court monthly until it shall be necessary to review this order or until the child comes of age.”
It is pertinent to note as I had also observed in total agreement with the submission of the learned Counsel to the Respondent, that the Court below held that from the above quoted excerpts of the Judgment of the trial Area Court, the Appellant did not contest or object to the award of the maintenance allowance of N30,000.00 monthly but his objection was on the accumulated payment and from the Records that the Petitioner was in agreement with the learned trial Judge for the maintenance sum to be paid monthly. The learned Justices of the Lower Court subsequently held that there was no basis for going into making findings on the Appellant’s means in the circumstances of the case and were of the opinion that with the evidence of Appellant’s means and capacity to cater for the child’s financial needs before the trial Court, the award of N30,000.00 (Thirty Thousand Naira) monthly in favour of the Respondent nay their son, was an exercise of good discretion. See page 224 lines 9-25 of the Record of this Appeal.
As was submitted by the learned Counsel to the Respondent, having not contested the award at the trial, there is no basis for Grounds 3 and 4 and Issue 2 (Two) formulated there from, thus warranting the frivolous argument now questioning the award here on Appeal. The Appellant cannot be heard to approbate and reprobate at the same time. Accordingly, I am of the considered view that the Customary Court of Appeal did not err in law in affirming the award of N30,000.00 (Thirty Thousand Naira) in favour of the Respondent as the learned trial Judge properly evaluated the totality of the evidence before it and found out that the Appellant did not oppose or challenge the award.
From the facts of this case, the question of proof of how the said sum of N30,000.00 was arrived at and how it will be spend did not therefore arise as was rightly found by the trial Court and affirmed by the Lower Court (Customary Court of Appeal), since the Appellant conceded to the award and only contested the accumulated payment. Moreover, the Respondent was clear as to the purpose for which the said sum of N30,000.00 was sought which was/is the maintenance and school fees of the Son in question.
On the authority of Ihunwo vs. Ihunwo (2013) All FWLR (Pt.674) 75 at 90 paragraphs B-C, it is also indubitable as has been held in a plethora of cases, that it is trite that Appeals to Appellate Courts are by way of rehearing and that in rehearing an Appeal, the Appellate Court should reconsider the materials before the trial Court and should not hesitate to over-rule (its) decision even of facts. However, as was decided by the Supreme Court in the recent case of Edosa vs. Ogiemwanre (2019) 8 NWLR (Pt.1673) 1 at 23 paragraphs B-C and 25 paragraphs C-D, following Ogbu vs. Wokoma (2005) 14 NWLR (Pt.944) 118; Ibenye vs. Agwu (1998) 11 NWLR (Pt.574) 372; Okeke vs. Agbodike (1999) 14 NWLR (Pt.638) 215; Nyesom vs. Peterside (2016) 7 NWLR (Pt.1512) 452; Nwokocha vs. A-G, Imo State (2016) 8 NWLR (Pt.1513) 141; Mainstreet Bank Ltd. vs. Binna (2016) 12 NWLR (Pt.1526) 316; this Court like the Apex Court can only interfere with the concurrent findings of a trial Court and the Court of Appeal where such findings are not reasonably justified by the evidence on record thereby occasioning a miscarriage of justice on the Appellant. Just like the Supreme Court, this Court that is sitting on Appeal from decisions of the Upper Area Court and Customary Court of Appeal would be loathe or slow to interfere with the concurrent findings of the two Lower Courts particularly on facts unless such findings are perverse or bedeviled by error on substantive or procedural law which if not corrected will lead to miscarriage of justice.
As far as this Appeal is concerned, I have no reason to interfere with the unassailable concurrent findings of facts by the Upper Area Court and Customary Court of Appeal as they are not bedeviled by any perversity nor any miscarriage of justice occasioned the Appellant.
I am also of the considered view contrary to the contention of the learned Counsel to the Appellant, that the Lower Court did not rely on any wrong principles of law to deny the Appellant the right to the custody of Master Chukwuebuka Emmanuel Okide irrespective of the abundance of evidence that the Appellant and Respondent’s marriage was contracted under Customary Law. There was abundance of evidence that as at the time the Appellant sought the custody of the child of that marriage, the welfare of the said child would have been in serious jeopardy in spite of the enormous wealth of the Appellant.
Thus pursuant to the provisions of the extant laws on custody of children of a dissolved marriage(s), the best interest of the child would be better served, if he was left in the custody of his mother for his care and attention while his father supplied the facilities for his maintenance and education.
If the Appellant who was not denied access to his son still wants him badly, then he should listen to the admonition of the Respondent at page 15 paragraphs 4.2.6 and 4.2.7; that in custody matters the Court making the order is never functus officio as it is trite that such an order can be varied or set aside on the application of any of the parents by a subsequent Order upon sufficient and convincing reasons. The provisions of Section 23(2) of the Area Courts Law and 67(6) of the Child’s Right Law of Benue State, 2009; can be invoked under the circumstances enumerated by the learned Counsel to the Respondent in his Brief of Argument for instance if the Appellant is no longer a man of means or that the maintenance sum is no longer being utilized or that their son is not being educated. Besides, the Counter-Affidavit of the Respondent in the Motion for Stay of Execution shows that the boy is progressing in School and was in JSS1 as of when the application was filed and accordingly the maintenance allowance was being properly utilized for the purpose it was meant.
Finally, at page 119 of the Records which contains the Judgment of I. Mohammed, Esq. CM1 of 28/05/2015, the amount of N30,000.00 was to be paid every month until it shall be necessary to review the Order or until the child comes of age. The Appellant therefore has the right to seek for a review or variation or discharge of the Order since by now the boy should have attained the age of fifteen.

On the whole, I also resolve this Second Issue against the Appellant and in favour of the Respondent. I hold that this Appeal lacks merit and same is hereby dismissed. There shall be no Order as to costs.

ONYEKACHI AJA OTISI, J.C.A.: I was privileged to read in advance a copy of the lead Judgment just delivered by my Learned Brother, Ignatius Igwe Agube, JCA, in which this appeal was dismissed. I agree with and adopt as mine the resolution of the issues arising for determination. I will only make few comments in support.

It can be argued that the most contentious issue that arises for determination in a fractured relationship revolves around the custody of children, who are minors. Charged emotions, coupled with cultural influences, more so in this part of the world, often becloud even the most glaring realities. Judicial pronouncements on the issue of custody of a child or children have consistently emphasized the welfare of the child or children; Williams V. Williams (1987) LPELR-8050 (SC); Odogwu V. Odogwu (1992) LPELR-2229 (SC); In Re B (A Child) (2009) (FC) (2009) LPELR- 178339 (UK). The paramount consideration would always be what is in the best interest of the child, notwithstanding any peculiar customary laws; Okwueze V. Okwueze (1989) LPELR-2539(SC). Thus, in resolving issues of custody, notable concerns include the capacity of the party seeking custody to give the child a balanced upbringing in order to ensure that the child does not become a misfit in society, the capacity to provide good education for the child, and general safety of the child. The wealthier party may not necessarily be able to satisfy these concerns. Money is not the panacea to every need.

Having regard to the totality of the evidence that as adduced before the trial Upper Area Court, including the evidence of the child of the union of the parties hereto, Master Chukwuebuka Okide, I am of the strong view that the lower Court was right to uphold the decision of the trial Upper Area Court that awarded custody of the said Master Chukwuebuka Okide to the Respondent.

For these reasons and for the more comprehensive reasons given in the lead Judgment, I also dismiss this appeal and abide by the orders made therein.

JOSEPH EYO EKANEM, J.C.A.: I had the privilege of reading in advance the lead judgment of my learned brother, Agube, JCA. which has just been delivered. My lord has comprehensively and admirably treated the issues that have arisen for determination in the appeal. I therefore adopt the reasoning and conclusion of my lord in dismissing the appeal for being unmeritorious. I abide by the order as to costs made in the lead judgment.

Appearances:

A.A. Sule, Esq., with him, M.O. Adegene, Esq. and A.E. Abutu, Esq. For Appellant(s)

T.D. Achinge, Esq. For Respondent(s)