MR. JOHNSON OBADAIRO KEHINDE v. MRS ADEYINKA OLUKEMI ADUKE KEHINDE (2014)

MR. JOHNSON OBADAIRO KEHINDE v. MRS ADEYINKA OLUKEMI ADUKE KEHINDE

(2014)LCN/7388(CA)

In The Court of Appeal of Nigeria

On Thursday, the 10th day of July, 2014

CA/I/241/2013

RATIO

PRACTICE AND PROCEDURE: PLEADINGS; WHETHER FACTS NOT PLEADED GOES TO NO ISSUE, AND WHETHER PARTIES ARE BOUND BY THEIR PLEADINGS

The position of the law is that facts not pleaded goes to no issue –
Parties are bound by their pleadings. They are to plead all facts they intend to rely upon at the trial and facts not pleaded will go to no issue.
Litigation must follow some restrictive order and not open ended in order to save the time of both the court and litigants. Courts are only enjoined to limit and restrict themselves to pleaded and proved facts See Okwejiminor v. Gbakeji & Anor (2006) 1 SC (pt. 111) 315, Salzgitter Stahl GMBH v. Tunji Dosunmu Industries Ltd. (1010) 3- 5 SC (pt. 11) 54, Cameroon Airline v. Otuturizu (2011) 1-2 SC (111,) 109 and Akande v. Adisa & Anor (2012) 5 SC (Pt. 1) 1. per. MUDASHIRU NASIRU ONIYANGI, J.C.A

EVIDENCE: EVIDENCE CONTRARY TO PLEADINGS; THE CONSEQUENCE OF EVIDENCE ADMITTED WHICH IS CONTRARY TO PLEADINGS

Any evidence which is at variance with the averment in the pleading should be disregarded and discountenanced by the court. See Adeleke v. Iyanda (2001) 13 NWLR (pt. 729) 1 at 21 and Ademeso v. Okoro (2005) 14 NWLR (pt. 945) 308 at 318. A party would only be allowed to call evidence to support his pleadings. The consequence of evidence admitted which is contrary to pleading is that such evidence must be expunged – See Mbani v. Bosi (2006) 11 NWLR (Pt.991) 400 at 412. per. MUDASHIRU NASIRU ONIYANGI, J.C.A

FAMILY LAW: DISSOLUTION OF MARRIAGE; GROUNDS FOR DISSOLUTION OF MARRIAGE

I produce herein under Section 15 (2) (f) which deals on grounds for dissolution of marriage.

Section 15 (1) reads:
“A petition under this Act by a party to a marriage for a decree of dissolution of the marriage may be presented to the court by either party to the marriage upon ground that the marriage has broken down irretrievably”
Section 15 (2)
“The court hearing a petition for decree of dissolution of a marriage shall hold the marriage to have broken down irretrievably if, but only if, the petitioner satisfies the court of one of or more of the following facts.”
Section 15 (2) (f)
“That the parties to the marriage has lived apart for a continuous period of at least three years immediately preceding the presentation of the petition” per. MUDASHIRU NASIRU ONIYANGI, J.C.A

PRACTICE AND PROCEDURE: CROSS-PETITION; THE IMPLICATION OF THE FAILURE OF THE RESPONDENT TO FILE A REPLY TO A CROSS-PETITION
Curiously the petitioner respondent did not file any counter process to the cross-petition of the respondent. It is trite that where a respondent fails to file reply to a cross-petition it would be deemed as an admission of the facts averred in the cross-petition – See the case of Mr. Robert Ayoade Olaleye v. Wema Bank Limited & 1 Or. (2010) LPELR 4744. per. MUDASHIRU NASIRU ONIYANGI, J.C.A

JUSTICE

MONICA BOLNA’AN DONGBAN-MENSEM Justice of The Court of Appeal of Nigeria

ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria

MUDASHIRU NASIRU ONIYANGI Justice of The Court of Appeal of Nigeria

Between

MR. JOHNSON OBADAIRO KEHINDE – Appellant(s)

AND

MRS ADEYINKA OLUKEMI ADUKE KEHINDE – Respondent(s)

MUDASHIRU NASIRU ONIYANGI, J.C.A (Delivering the Leading Judgment): In the divorce petition before High Court of Ogun State corum, Honourable Justice O.O. Majekodunmi, the petitioner sought for the following in paragraph 11 of the petition dated and filed on the 8th day of August 2012.

“That the said marriage be dissolved on the grounds set up”
(See pages 1-2 of Record of Appeal)

At the conclusion of trial the court, in its judgment contained on pages 32 to 45 delivered on 29th day of April, 2013 ordered as follows:-

“The petition of the petitioner fails and is hereby dismissed. The cross petition succeeds in entirety.

1) In the exercise of the powers conferred upon this court by Section 15 MCA. Laws of the Federation 2004, the marriage contracted between the petitioner and the respondent on the 3rd of December, 2002 at the Abeokuta South Local Government Marriage Registry and which is evidenced by Exhibit A herein is hereby dissolved.

2) I award custody of the two children of the marriage
(i) Kehinde Adenike Tolulope (F) and
(ii) Kehinde Samuel Inioluwa (M) to the Respondent.

3) The petitioner is hereby granted reasonable access to the children.
4) It is hereby ordered that the petitioner shall be responsible for the education of the children up to the University level.
(See page 45 of the Record)

Dissatisfied, the petitioner/appellant filed a notice of appeal dated 5th day of May 2013 on the same date. The soul ground upon which this appeal is predicated is:

GROUND OF APPEAL

“The lower court erred in law when it held that custody of the two children be given to the respondent who did not pray for it.”

PARTICULARS OF ERROR

i. The finding is not supported by the evidence on record.

ii. It is a trite law that parties are bound by their pleadings and evidence of facts not pleaded goes to no issue.

iii. It is the law that evidence cannot take the place of pleadings.

iv. The respondent did not in her pleadings pray for custody of the children but rather joint custody.

v. That the character of the respondent as contained in the evidence of the petitioner on record which the Honourable court in is (sic) own wisdom disbelieved does not deserve the grant of custody.

vi. That the interest of the children who are now ten (10) and six (6) respectively were not taking into consideration.

vii. The lower court’s finding is at variance with the materials and evidence before the court.

viii. The children were never invited into the chamber by the trial judge.

Further ground may be filed on receipt of record of Appeal. Other than the foregoing, no further ground of appeal was filed.

The reliefs sought consequent upon this ground are:

(i) An order allowing this appeal and granting the reliefs sought by the petitioner/appellant.

(ii) An order setting aside the judgment of the lower court delivered on the 29th day of April 2013.

(iii) Any other or further order or consequential orders as this honourable court may deem fit to make in the circumstances.
(See pages 46 and 47 of the record)

The fact of this case is that the appellant by his petition filed on the 8th day of August 2012 sought for an order of dissolution of marriage between him and the respondent on the ground that the marriage has broken down irretrievably in that the respondent has behaved in such a way that the appellant cannot reasonably be expected to live with her and since the marriage the respondent had committed adultery and the petitioner finds it intolerable to live with the respondent.

The respondent in reacting to the petition filed an answer and also cross petitioned. (See the answer and cross petition on pages 11 to 15 of the record). Therein the respondent sought for the following Orders:

(I) An order of this honourable court dismissing the petition brought by the petitioner Respondent.

(II) An order of this Honourable court sustaining the cross petition of the respondent/cross petition.

(III) An Order of this Honourable Court dissolving the marriage on the ground that the marriage has broken down irretrievably in that the petitioner/Respondent has behaved in such a way that the respondent /cross petitioner cannot reasonably be expected to live with him.

(IV) An order on the petitioner that the petitioner would be responsible for the educational need of Adenike Tolulope Kehinde and Samuel Adekunle Kehinde up to the University level.

In the trial before the court below, the petitioner testified and called one witness. The respondent gave evidence and called no witness.
Before this court respective counsel filed their brief of argument and adopted them on the 6th day of May 2014. The appellant distilled a sole issue for the determination of this appeal. The issue goes thus:

Whether or not the learned trial judge erred in law when she granted custody of the children of the marriage to the respondent when same was not asked for by the respondent.

In his own adopted brief of argument dated and filed on the 18th day of February 2014, the learned counsel representing the respondent also formulated this lone issue for determination.

“Whether the trial judge is right or wrong in holding the view that the important task on issue of the custody of the children of marriage is to ask and answer not what the essential justice of the case requires, but what the best interest of the children requires.”

In my view, the soul complaint of the petitioner is that the court ought not award the respondent/cross petitioner the custody of the children of the marriage in that the respondent has not asked for such.
That being the case it is my view that the issue formulated by the appellant counsel is more appropriate for the determination of this appeal. I would therefore adopt same, more so when it would take care of the question posed in the issue formulated by the respondent. Before zooming into consideration of the said issue let me put on record that the learned counsel representing the appellant filed a reply to the respondent’s brief of argument dated 28th February 2014.

Now back to the issue by the appellant which somewhere before now I have reproduced in this judgment.
By this appeal the only narrow question stemming from the ground of appeal and the issue formulated is whether or not the court award the custody of the children to the respondent who has not sought for such order.
The argument canvassed on this by the appellant is that the respondent in her pleading averred that she wished that the custody of the two children be given to the appellant and that during holidays they should be with her. It is his contention that the respondent did not ask for the custody of the children in her response to the petition and cross-petition contained in pages 11-15 of the record of appeal. He added that it was during cross examination by the learned counsel representing the appellant that the cross petitioner requested for the custody of the two children. He submits that the court cannot grant relief not claimed by parties and referred to the following cases: Ekpenyong v. Nyong (1975) 2 SC 71 at 81 – 82, Kalio v. Daniel-Kalio (1975) 2 SC 15 at 17 – 19, Makanjuola v. Balogun (1989) NWLR (Pt.108) 192 at 206 and Olurotimi v. Ige (1993) 8 NWLR (Pt.311) 257 at 271.
In deserving case, he said the court have power to grant to a successful litigant such relief as consequential. He cited the case of Chief E.I. Ifeadi & 1 Or v. John Ortsor Ayedze (1998) 13 NWLR (Pt.581) 205 at 232.
Further he submits that it is trite law that court shall not make an order and ask for or make an order against a person without hearing him.
The learned trial judge, he submits did not give adequate consideration of the facts before granting custody of the two children to the respondent who did not ask for it as against the decision in the aforementioned authorities. He urged the court to resolve this against the respondent. It is his contention further that the sole purpose of pleading is to ensure that parties to a case knew the case they will meet at the trial to obviate any surprise. For that reason it is not open to a party to depart from his pleading and put up a different case. It is crystal clear from the respondent’s case that she wanted to approbate and reprobate at the same time. Furthermore, the respondent prayed for joint custody but she made a U-turn when she was giving her evidence that she wanted full custody of the children of marriage. He submits that pleadings are not evidence and that one cannot rely on evidence to prove his case during trial which he did not plead; parties, he added are bound by their pleadings and evidence which is at variance with the averments in the pleadings goes to no issue and should be disregarded by the court. Where evidence is adduced or attempted to be adduced on facts not pleaded, such evidence should not be allowed to be given and where it had been given, it should be discountenanced or expunged. He cited the case of N.D.I.C. v. Oranu (2001) FWLR (Pt.82) 1974, Onamade v. A.C.B. Plc. (1997) 1 NWLR (Pt.480) 123, Njoku v. Eme (1973) 5 SC 293, Okafor v. Olutiakpe (1973) 2 SC 49, and Otain Sons Ltd. v. Idris (1999) 6 NWLR (Pt.606) 330.

In view of the foregoing, he submit that the trial court was in grave error when it abandoned the prayer of the respondent and gave her what she did not ask for. He therefore urged the court to hold that the evidence as led by the respondent is at variance with her pleadings and should be discountenance or expunged. He charged the court to grant the relief sought and allow the appeal in that:

(1) The trial court was wrong to have awarded the custody of the 2 children to the respondent despite variance in her pleading.

(2) The trial court was wrong to have allowed the evidence of the respondent to take the place of pleading.

The learned counsel representing the respondent relied on Section 71 (1) of the matrimonial causes Act 1970 and the fact before the trial court and submits that in proceedings with respect to custody, guardianship, welfare advancement or education of children of marriage, the court shall regard the interest of the children as the paramount consideration, and subject thereto, the court may make such order in respect of these matter as it thinks proper. He added that based on the above provisions of the law the underlisted factors were laid down by the upper court when deciding the issue of custody of children of a marriage, to serve as a guide and take into consideration by the trial court in exercising its judicial discretion, which are:

(a) The ages of the children.
(b) Education
(c) Welfare and general upbringing
(d) Arrangements made for their accommodation
(e) The conducts of the parties to the marriage.
However, the interest of the children at all times should be of paramount consideration.
He cited Nkiru Joy Oduche v. Obiefuma N. Oduche (2006) 5 NWLR (Pt 972) 102.
He submits further that the respondent pleaded for a joint custody between the parties to the marriage and gave evidence on the averment relating to the maintenance and proper upkeep of the 2(two) children of the marriage while the appellant did not include any averment or prayer for custody of the children of the marriage. He added that assuming without conceding to the fact that no pleading was made by the parties with respect to custody of the children, the trial court, by the provisions of Section 71 (1) of the MCA, has been clothed with a wide discretionary powers which it can exercise judicially and judiciously in awarding the custody of the children of a marriage even, to a third party, where the court is satisfied that it is desirable to do so. (See Section 71 (3) MCA). The interest of the children at all times ought to be of paramount consideration and which the learned trial judge put in place in this case.
See Oyelowo v. Oyelowo (1987) 4 SC 32. To every rule, he submits there is an exception, in matrimonial causes the power of a trial judge to grant custody to any of the parties to the marriage, even a third party, is uninhibited and the fact need not be pleaded by the parties before the court can exercise its discretionary power judiciously and judicially once it is exercised in favour of the welfare advancement or education and general interest of the children of a marriage. The appellant has to show that the exercise of a measure of discretion by a court is unwarranted, and or felt short of any acceptable standard, creating an injustice to him, the appellate court is not likely to interfere with such exercise of discretion by the trial court.

This court he added cannot interfere unless it has been shown by proof that there was an improper use of the discretion of the trial court in this matter as alleged by the appellant. The proper role of this court, where there is proper exercise of discretion is not to interfere with the discretion. To do so, as being called upon, merely on the ground that the appellate court would have exercised the discretion differently, is an assault on justice and not within the statutory power of the Appeal Court.
He referred to Solanke v. Ajibola (1968) 1 ALL NLR 46 and Saraki v. Kotoye (1990) 6 SCNJ 31.
The trial Court considered the totality of the evidence of the petitioner and respondent in line with the welfare and proper upbringing of the two (2) children of Marriage and found the evidence of the respondent worthy, being the children’s biological mother, a teacher and the one so close to the children compared to the evidence of the appellant whose nature of his job makes him and his friends to travel a lot and stay out of home. (He referred to page 22 line 17-18 of the record of proceedings). The finding of the court and the decision thereof is unassailable and in line with the law. He cited Buwanhot v. Buwanhot (2011) ALL FWLR (Pt.556) C.A. 532 at 563 para A., Alabi v. Alabi (2008) ALL FWLR (pt.418) CA 245 at 292.
In conclusion he urged the court to dismiss the appeal with substantial cost on the ground that:

1) The trial court is vested with a wide discretionary power under section 71 (1) of the MCA 1970 to award custody of children in a marriage that has irretrievably broken down to the respondent as it did having regards to the utmost interest welfare and education of the children.

2) The appellate court does not ordinarily interfere with the exercise of the discretionary power of the trial court once such power is exercised judicially and judiciously.

3) Custody of the children of a marriage in matrimonial causes can be granted to …of the parties to the marriage, even to a third party without pleading.

Going back to the issue subject of this appeal which is the custody of the two children of the marriage, I would trigger off my consideration on the issue of pleading.
A careful reading of the petition dated 8th day of August 2012 and filed same date exposes the fact that the petitioner apart from pleading the particulars relating to children and propose arrangement for the children said nothing in relation to the custody of the children. For avoidance of ambiguity I would reproduce paragraphs 6 and 7 of the petition.

Paragraph 6
PARTICULARS RELATING TO CHILDREN.

(1) Adenike Tolulope Kehinde (F) 9 years. Rehoboth New Well Nursery and primary School (primary 1) (2) Samuel Adekunle Kehinde (M) 5 years Rehoboth New Well Nursery and primary School (primary 1)

Paragraph 7
PROPOSED ARRANGEMENT FOR THE CHILDREN

(a) That the children are presently with the petitioner
(b) That the petitioner will be responsible for the education of the children up to University level as he has been doing it.
(c) That the children of the marriage are presently in Rehoboth (New Well) Nursery and primary School at Adurape Premises, Oke Lantoro Abeokuta (See page 2 of the Record)
In the oral testimony of the petitioner, he said “….. I have been responsible for the upkeep of our children since they were born and till now; even at times when they were with the respondent. I sent money for their upkeep to her. I will take adequate care of the children as I have been doing. If their custody is granted to me. The respondent had never been admitted into hospital due to any beatings from me. She only got admitted during pregnancies and at delivery of our children. I want the court to dissolve our marriage and grant me custody of my two children of marriage”.
Looking at the state of pleadings, it is clear that the petitioner did not plead any fact on issue of custody of the children to warrant or accommodate his testimony wherein he said:
“I will take adequate care of the children as I have been doing if their custody is granted to me”. (See page 21, paragraph 2 of the record)

The position of the law is that facts not pleaded goes to no issue –
Parties are bound by their pleadings. They are to plead all facts they intend to rely upon at the trial and facts not pleaded will go to no issue.
Litigation must follow some restrictive order and not open ended in order to save the time of both the court and litigants. Courts are only enjoined to limit and restrict themselves to pleaded and proved facts See Okwejiminor v. Gbakeji & Anor (2006) 1 SC (pt. 111) 315, Salzgitter Stahl GMBH v. Tunji Dosunmu Industries Ltd. (1010) 3- 5 SC (pt. 11) 54, Cameroon Airline v. Otuturizu (2011) 1-2 SC
(111,) 109 and Akande v. Adisa & Anor (2012) 5 SC (Pt. 1) 1.

In the light of the foregoing and having found that the petitioner has no place where he pleaded any fact on custody of the children of the marriage that part of his testimony on pages 20 and 21 requesting for custody of the children ought to have been expunged. In exercise of the power conferred on this court under Order 17, of the Court of Appeal Rules that pieces of evidence be and are hereby expunged. Next is to consider the state of pleading of the respondent on issue of custody of the children of the marriage. Somewhere in this judgment I said the respondent cross-petitioned in his reply/answer to the petition, Under paragraph 18 of the cross-petitioner he averred as follows:

Paragraph 18:
PROPOSE ARRANGEMENT FOR THE CHILDREN

(a) RESIDENCE: The Respondent/cross-petitioner wishes that the children reside with the petitioner/respondent while the school is in session and with her when the school is on holidays.
(b) EDUCATION: The children will continue their education in their present school and will progress to higher institution of learning of their choice in future to the best of their ability.
(c) MAINTENANCE: The parties shall be responsible for the children’s upkeep entirely for the duration of the time they shall be with each of them.
To my understanding the respondent cross petitioner in paragraph 18 (a) in her cross-petition pleaded that both herself and the petitioner should be granted custody of the children.
The learned counsel representing the petitioner in his reply to the respondent’s cross-petitioner’s argument on issue of custody of the children of the marriage submits that the learned counsel representing the appellant misdirected himself by stating that custody granted to the respondent despite the fact that her evidence was at variance with her pleadings was at the discretion of the court. To the contrary he submits that the Supreme Court has said that there is no immutable principle of law that custody of a child of tender age should be awarded to his mother in divorce proceedings. He relied on the case of Dr. Akinremi Nanna v. Mrs Ekpehose Nanna (2006) 3 NWLR (pt.966) 1 RATIO 12. He added that in considering the child’s interest paramountly, there are a number of well settled considerations for instance there is no rule that a child of tender age should remain in custody of the mother. He added that there is no rule that when a child is female her custody should be granted to the mother. He relied on Williams v. Williams (1987) 2 NWLR (pt.54) 75 where the court presided over by Obaseki JSC ordered for joint custody of the only child which was granted to the appellant and the respondent respectively. Further, he said an action in custody gives power to deal with custody not indivisibly but divisibly. In other words, the court can deal with each and every aspect of the constituent elements of custody. It can thus give same and control to one parent with access to the other and vest the remaining constituents of custody in the other parent.
He cited Dr. Dennis Paulin Otti v. Denis A. Otti (1972) 7 NWLR (Pt.252) 187.
Finally he submits that since parties are bound by their pleading joint custody ought to have been granted rather than absolute custody to the respondent who has denied the appellant reasonable access to the children of marriage for almost a year now. On that note he urged the court to allow the appeal and dismiss the respondent’s case for the reason adumbrated in the appellant’s brief and reply brief. The petition was filed on the 8th day of August 2012. See pages 1 and 2 of the record.
The petitioner while responding to a question by the learned counsel representing the respondent/cross-appellant as to when the respondent left the matrimonial home replied and said:

“It was on the 27th day of December 2011 that the respondent left home. Some minutes before 9.pm.”
(See page 22 lines 3-4 of the Record)
The respondent in her examination in chief said,

“On the 27th December 2011, the respondent came home late in the night and I prepared his food. We later went to bed. I demanded for sex and he refused. He started to beat me and said whenever he goes to his girlfriend I should go to other men. He beat me and sent me out of the home at 12 midnight. I slept outside that night, he having threatened the neighbours not to allow me into their homes. The next day, as in his habit he took our children to his mother. I was badly wounded. I went to my father’s house on the 28th December 2011 with only one wrapper covering my body. I picked the wrapper from the line outside. Since that, I have never resumed co-habitation with the petitioner”. (The underlined is mine)
See page 24 line 10 to 19 of Record.
The foregoing has brought to lime light the time both the petitioner and the respondent stop living together as husband and wife. I have to bring this out based on analyses of the court on page 39 of the record while resolving the submission of the petitioner on issue one. This has raised the question as to whether or not the petition is competent having regard to Section 15 (2) (f) of the Matrimonial Causes Act. I produce herein under Section 15 (2) (f) which deals on grounds for dissolution of marriage.

The reference made by the court on page 39 of the record in its judgment triggered off my reasoning and the question whether or not the petition ab initio is competent. This petition was filed on the 8th day of August 2012. Both the petitioner and the respondent are in terms as to the episode between them on the 27/12/2011 and which led to the eventual and final vacation of the matrimonial home on the 28th/12/2011.
From 27/12/2011 or 28/12/2012, to 28th day of August 2012 is less than a year. Therefore it is obvious that the petition was filed in less than one year preceding when cohabitation by the parties seized. To say a little it renders the petition ab initio incompetent and ought to be struck out because it was premature when it was filed on 8th/8/2012. However, the respondent cross-petitioned. That again breathes life into the action.
Curiously the petitioner respondent did not file any counter process to the cross-petition of the respondent. It is trite that where a respondent fails to file reply to a cross-petition it would be deemed as an admission of the facts averred in the cross-petition – See the case of Mr. Robert Ayoade Olaleye v. Wema Bank Limited & 1 Or. (2010) LPELR 4744.

The respondent in his cross-petition and evidence asked for joint custody of the children and no more. His response to the question under cross-examination that she wants custody has no bases. It cannot be ascribed to any paragraph of his pleading (cross-petition). Parties are bound by their pleading. See Okolo v. Union Bank (2004) 1 SC (Pt. 1). Also parties would be estoped to lay evidence on facts not pleaded – See Oshodi v. Eyifunmi (2000) 7 SC (pt. 1) 145, and Philips v. Ebaodan Commercial v. Industrial Company Ltd. (2012) 4 SC 47.
If the respondent/cross-petitioner only asked for joint custody of the children of the marriage and there is no negative or adverse response by way of pleading by the petitioner/respondent, such apart from constituting an admission would only be the reasonable order the court would make in the circumstance. That is to say that the court cannot grant to parties what they have not asked for. The court cannot play the role of father Christmas, which can go around granting to parties reliefs not asked for – See Nwanya v. Nwanya (1987) 3 NWLR (pt. 62) 697, Odofin & Anor v. Agu & Anor (1992) LPELR – 2225, Nigerian Maritime Administration and Safety Agency & Anor. v. Hensmor Nigeria Ltd. (2012) LPELR 7931.

Therefore, the grant of custody of the two children of the marriage (i) Kehinde Adenike Tolulope (F) and (ii) Kehinde Samuel Inioluwa (M) to the respondent/Cross-petitioner by the trial judge which cannot be supported by any paragraph of the answer to the petition/cross-petition is erroneous and should not be allowed to stand. In my humble view it is grantiteous same having not been sought by the respondent/cross-petitioner.
Accordingly I answer the sole question in the affirmative. That is to say that the learned trial judge erred in law in granting the custody of the children of the marriage to the respondent when same was not asked for by the respondent. The appeal on that ground succeeds and it is hereby allowed. The order of the court below awarding custody of the two children of the marriage to the respondent/cross-petitioner is hereby set aside while the rest reliefs granted by the trial court other than that of award of custody of the two children of the marriage to the respondent/cross-petitioner stands.
In consequence of the foregoing, and in order not to leave the issue of custody of the said two children in the air I consider it expedient to invoke the powers of this court under section 15 of the court of Appeal Act grant joint custody of the two children to both the appellant and the respondent/cross-petitioner in the manner and as contained in paragraph 18 (a) of the answer/cross petition by the respondent dated 5th day of September 2012.
There shall be no order to cost.

MONICA B. DONGBAN-MENSEM, J.C.A.: The Matrimonial Causes Act 1970 can be said to harbor procedures peculiar to the Act; therefore, issues raised and considered under the Act can also be described as “sui generis”. Section 71(1) & (3) of the Act is one of such provisions which tend to depart from the Rules of pleadings.
Matrimonial causes pertain to issues which affect the family and children are always the most vulnerable of the parties involved. For this reason, a special procedure is put in place to protect the interest of the children, who sometime, are too young to comprehend what is actually at stake.
Further, and as apparent in this appeal, the parents are too involved in their own issues to give a dispassionate consideration to the best interest of the children. Concern for the interest of the children therefore led the legislators to repose a special discretion in the Court to determine, from the peculiar facts of each case, where the children should be. Thus, whether or not the parties plead facts as to custody of the children, the Court has a discretion to pierce through the facts and overlook same if not made in the interest of the children.
In this appeal, the Appellant challenges the discretion of the learned trial Judge in awarding custody of the two children to the Respondent. The reason is that the respondent did not plead for the custody of the children in the petition, and rather averred that the Appellant retains custody of the children while they are in school but surrenders custody when the school is closed for vacation.

In considering the question of custody, the learned trial Judge held thus:-
“…. it is worthy of mention at this stage that the petitioner did not specifically seek an order of custody of the children of the marriage by his petition before this Court as he merely sought a decree of dissolution of the marriage, though he stated in paragraph 7(a) thereof that the children are presently with him. However, by paragraph 18 of the cross-petition (under the heading “proposed children are still of tender years being aged nine and six. Their mother is an educationist and is therefore invaluable to the children. No evidence has been led before this court that she is incapable of taking care of her children. As I have earlier said, custody should normally be awarded to the mother unless other considerations make it undesirable. I am of the respected view that the interest of the children demands that their custody be awarded to their mother, the respondent/cross-petitioner…”
The order of the Court are convey in these terms:
1. ………..
2. I award custody of the two children of the marriage:
(i) Kehinde Adenike Tolulope (F); and
(ii) Kehinde Samuel Inioluwa (M) to the Respondent…”

In electing to exercise the discretion reposed in the Court by Section 71 of the Matrimonial Causes Act, the learned trial Judge found that at their tender age the interest of the children is better guarded by their mother. Further, as a teacher, by profession, it is certainly more beneficial for the children to be with the mother. (See: Buwanhot vs. Buwanhot (2011) ALL FWLR (Pt.556) C.A. 532 at 563; Alabi vs. Alabi (2008) ALL FWLR (Pt.418) CA 245 at 292).
The Appellant seems to have conceded to the fact that the children are better off with their mother because no evidence was placed before the Court asserting the incompetence by the mother to bring up the children.
Rather, there was evidence by the Appellant as to the nature of his job which keeps him out of the home most of the time.
As in the lead Judgment prepared by my learned brother Mudashiru Nasiru Oniyangi JCA, I too hold that no compelling reason has been adduced to move this Court to interfere with the exercise of discretion by the learned trial Judge.
This appeal is hereby dismissed.

ALI ABUBAKAR BABANDI GUMEL, J.C.A.: I agree.
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Appearances

ADEBAYO O. OGUNGBEMI For Appellant

AND

NIYI OGUNJIMI For Respondent