MRS. CHARITY OKAFOR v. MR. PAUL OKAFOR
(2016)LCN/8249(CA)
In The Court of Appeal of Nigeria
On Friday, the 4th day of March, 2016
CA/K/248/2015
RATIO
APPEAL: WHETHER AN APPELLATE COURT CAN ADOPT, REFRAME OR FORMULATE ISSUES IN THE HEARING OF AN APPEAL
The law is trite, in the hearing of an appeal an Appellate Court can adopt, reframe or formulate issues which it thinks appropriate for the determination of the appeal, provided, the issue, whether adopted, reframed or formulated, is or are predicated on the grounds of the notice of appeal, filed by the appellant. See Latunde v. Lajinfi (1989) 3 NWLR (Pt.108). per. IBRAHIM SHATA BDLIYA, J.C.A.
FAMILY LAW: THE RIGHT TO CUSTODY OF CHILDREN; THE POSITION OF THE LAW ON THE RIGHT TO CUSTODY OF CHILDREN
I think, it is apposite, at this juncture to resort to the position of the law on the right to custody of children in situation where a marriage has been broken down, and the husband and wife (father and mother) are no longer living together. In Okwueze v. Okwueze (1989) 3 NWLR (Pt. 109) P. 321 @ 334, the Supreme Court, when dealing with the right to custody of children of a dissolved marriage which was conducted under Native Law and custom, enunciated that under most systems of Customary Law in Nigeria, a father of a legitimate or legitimated child has absolute right to custody of the child. However, the Customary Laws recognizes that such absolute right of the father will not be entered where it will be detrimental to the welfare or well-being of the child’
In Odogwu v. Odogwu (1992) 2 NWLR (Pt. 225) P.539 @ 560, the Supreme Court enunciated that if the parents are separated and the child of the union is of tender age, it is presumed that 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 for example immorality of the mother, infectious disease on the mother insanity, and or her cruelty to the child. For this purpose custody proceedings could even be adjourned to the judge’s chambers where an informal hearing of the child?s view could be assessed along with those of the parents. Ojo v. Ojo (1969) 1 All NLR 434; Apara v. Apara (1968) l All NLR 241.
E. I. Nwogugu, in his book on Family Law in Nigeria, 1974, (Reprinted 1985) dealing with custody of children under Customary law put the position of the law succinctly thus:
?Under most systems of Customary Law in Nigeria, the father has the absolute right to the custody of his legitimate or legitimated children. On the death of the father, the custody of the child is vested in the male head of the father’s family, though the mother has the day-to-day care of the child. per. IBRAHIM SHATA BDLIYA, J.C.A.
CUSTOMARY LAW: THE POSITION OF CUSTOMARY LAW CONCERNING THE RIGHT TO CUSTODY OF CHILDREN
However, Customary Law recognizes that the father’s absolute right will not be enforced where it will be detrimental to the child’s welfare. For instance, where the child is of tender age, Customary Law requires that it should be left under the care of the mother. In such a case, the father’s right is merely in abeyance, and may be exercised when the child could safely be separated from the mother. “
Margaret C. Onokah, in her BOOK FAMILY LAW, 2002, wrote that:
“Under Customary Law, a father has exclusive custodial right over the children of his marriage. This right extends beyond custody, to “ownership” of the children. Thus his right has been described as capable of transmission to his family members. The wife has no such rights over her children. During separation or on dissolution of a marriage under Customary Law, the father has custody of the children of the marriage. This exclusive custodial right of a father over the children of the marriage does not obtain under statutory marriage. In this latter, the Court determines which of the parents has custody of the children, ‘the paramount consideration being the welfare of the children themselves. This rule of Customary Law hinged on the fact that most Nigerian communities are patrilineal (a few being the opposite matrilineal) by reason of which children belong to their fathers’ lineage”. How can the right of custody of children be determined under the Customary Law? The answer to the foregoing question can be found in the case of Okwueze v. Okwueze (1989) 3 NWLR (Pt.109) P. 321 @
335, wherein UWAIS J.S.C (as he then was) said:
“The only proper manner in which the custody of a child under Customary Law can be determined is by specifically taking evidence to establish what is in the best interest and welfare of the child. Like the Customary Court, the High Court failed to do so. Its decision cannot, therefore, be said not to have caused a miscarriage of justice. Furthermore, the Court of Appeal made the same mistake since it agreed with the decision of the Customary Court which has been shown to have been a misdirection. It too based its decision merely on the request made by the respondent in the Customary Court to have custody of the children and not on evidence adduced to determine the interest and welfare of the children”. per. IBRAHIM SHATA BDLIYA, J.C.A.
JUSTICES
UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria
Between
MRS. CHARITY OKAFOR Appellant(s)
AND
MR. PAUL OKAFOR Respondent(s)
IBRAHIM SHATA BDLIYA, J.C.A. (Delivering the Leading Judgment): On or about the 28th of May 2005, Paul Okafor (the respondent) and Charity Okafor (the appellant) got married under the Tiv Native Law and Custom in Vandekiya Local Government Area of Benue State. They lived together at the Okafor Close, Mahuta Kaduna up to the 16th of May 2014 when the appellant left the matrimonial home without the consent of the respondent. Thereafter, the marriage broke down resulting to their living apart. There are 2 children of the marriage, Precious Onyinye Okafor, 8 years, and Favour Chinyere Okafor 5 years, both female.
The respondent as the petitioner initiated an action against the appellant as the respondent before the Sabon Tasha Customary Court (the trial Customary Court) claiming the custody of the two (2) children of the marriage. After the taking of evidence and addresses of counsel, the trial Court delivered its judgment on the 19th of December, 2014, in favour of the appellant, that is granting the custody of the 2 children to the appellant. Dissatisfied with the judgment, the respondent appealed to the Customary Court of Appeal,
Kaduna state (the Lower Court) on the 5th of January, 2015. The Lower Court delivered its judgment on the 30th of June 2015, in favour of the respondent, whereby the judgment of the trial Customary Court was set aside, with the consequential order of granting the custody of the children to the respondent.
The appellant aggrieved by the judgment of the Lower Court filed a notice of appeal to this Court on 2nd of July 2015 on 3 grounds of appeal. The appellant filed brief of argument on the 4th of September 2015. The respondent filed brief of argument on the 7th of October, 2015. The appeal was heard on the 18th of January 2016; whereat, Amos Esq. who settled the appellant’s brief adopted same, and urged the Court to allow the appeal, set aside the judgment of the Lower Court, and restore that of the trial Court. Akobueze Esq., of learned counsel to the respondent, adopted his brief of argument and did urge the Court to dismiss the appeal for lacking in merit and affirm the judgment of the Lower Court.
On page 4 of the appellant’s brief of argument a lone issue has been distilled from the 3 grounds of the notice of appeal, which is thus:
“Whether considering the evidence placed by the parties before the Lower Court, the Lower Court was right in entering judgment in favour of the respondent thereby granting custody of the two girls who are minors to the respondent.”
The respondent similarly formulated a lone issue out of the 3 grounds of the notices of appeal which can be found on page 3 thereof. It is thus:
“WHETHER the Customary Court of Appeal, Kaduna was not right in law to award custody of the two children of the marriage to the respondent”
The law is trite, in the hearing of an appeal an Appellate Court can adopt, reframe or formulate issues which it thinks appropriate for the determination of the appeal, provided, the issue, whether adopted, reframed or formulated, is or are predicated on the grounds of the notice of appeal, filed by the appellant. See Latunde v. Lajinfi (1989) 3 NWLR (Pt.108). In this regard, the lone issue distilled from the 3 grounds of the notice of appeal by the parties for the appeal is hereunder reframed for the sake of breusty, clarity and precision for the just determination of the appeal.
“WHETHER, CONSIDERING
THE EVIDENCE ADDUCED BY THE APPELLANT AND THE RESPONDENT BEFORE THE TRIAL CUSTOMARY COURT THE CUSTOMARY COURT OF APPEAL (THE LOWER COURT) WAS RIGHT IN ENTERING JUDGMENT IN FAVOUR OF THE RESPONDENT THERE BY GRANTING CUSTODY OF THE CHILDREN OF THE MARRIAGE TO THE RESPONDENT.?
Amos Esq., who settled the appellant’s brief of argument contended that:
“The Lower Court was wholly wrong in its decision in upturning the judgment of the lower trial Court which granted custody to the appellant based on the evidence that was placed before the Court by the Parties.
The learned justices erred fundamentally both in law and on the evidence placed before it in setting aside the judgment of the lower trial Court and entering judgment in favour of the respondent in the appeal before it.”
Learned counsel cited and relied on several decided authorities and Books to buttress his submissions supra, and did urge the Court to allow the appeal, set aside the judgment of the Lower Court’ and in consequence, restore the judgment of the trial Customary Court.
?For the respondent, Akobueze Esq. of learned counsel, submitted that
under Customary Law a father has exclusive, custodial right over the children of a marriage in the event of the dissolution of a marriage. That such right extends beyond custody to ownership of the children. That the wife has no right to the custody of the children of the marriage after the dissolution of such marriage. The case of Aliakam v. Anyanwu (1975) ECSLR p.305 and Family Law by Margaret C. Onokah P.178 as well as Family Law in Nigeria by E. I. Nwaogugu P.260 were relied on to reinforce the submissions supra.
In conclusion, learned counsel adumbrated that:
“That the learned judges of the Customary Court of Appeal, Kaduna rightly considered the factors for awarding the custody and property granted custody to the respondent considering the whole circumstances of this case.
That the two children of the marriage are of the ages of conveniently living with the respondent, their father.
That the appellant considering her economic power is not better than the respondent and the respondent is better placed to take care of the children.
That the appellant’s moral standing is reprehensible and should not be
allowed to live with the children in such an adulterous relationship with the party cited, MR. CHARLES, to protect the children’s morals.
That the general welfare/paramount interest of the children is in favour of grant of the custody to the respondent considering the circumstances.”
The Court has been urged to dismiss the appeal for lacking in merit, and in the result affirm the judgment of the Lower Court.
On pages 103 to 104 of the printed record of appeal, the Lower Court concluded its judgment as follows:
“In conclusion, we agree with the submission of the appellant counsel, that custody could have been better given/awarded to the appellant having consider all the factors surrounding the welfare and the interest of the children. Hence, the interest of the children will be better served and: protected if they are with the appellant. The issue is resolved in favour of the appellant, while the issue of counterclaim fails.
Consequently, the judgment of the trial Court, Sabon Tasha is hereby set aside the custody of the two children of the marriage, namely, Precious Onyinye and Favour Chinyere
Okafor, now ages 10 and 6 years respectively, is hereby given to the appellant.
However, the respondent is at liberty to ask the appellant to take them to her for a visit or spend part of their holidays with her”,
Were the learned judges of the Lower Court right in their reasonings and conclusions supra, whereby the judgment of the trial Customary Court was set aside and the right of the custody of the two children was given to the respondent? I think, it is apposite, at this juncture to resort to the position of the law on the right to custody of children in situation where a marriage has been broken down, and the husband and wife (father and mother) are no longer living together. In Okwueze v. Okwueze (1989) 3 NWLR (Pt. 109) P. 321 @ 334, the Supreme Court, when dealing with the right to custody of children of a dissolved marriage which was conducted under Native Law and custom, enunciated that under most systems of Customary Law in Nigeria, a father of a legitimate or legitimated child has absolute right to custody of the child. However, the Customary Laws recognizes that such absolute right of the father will not be entered where
it will be detrimental to the welfare or well-being of the child’
In Odogwu v. Odogwu (1992) 2 NWLR (Pt. 225) P.539 @ 560, the Supreme Court enunciated that if the parents are separated and the child of the union is of tender age, it is presumed that 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 for example immorality of the mother, infectious disease on the mother insanity, and or her cruelty to the child. For this purpose custody proceedings could even be adjourned to the judge’s chambers where an informal hearing of the child?s view could be assessed along with those of the parents. Ojo v. Ojo (1969) 1 All NLR 434; Apara v. Apara (1968) l All NLR 241.
E. I. Nwogugu, in his book on Family Law in Nigeria, 1974, (Reprinted 1985) dealing with custody of children under Customary law put the position of the law succinctly thus:
?Under most systems of Customary Law in Nigeria, the father has the absolute right to the custody of his legitimate or legitimated children. On the death of the father, the custody of the child
is vested in the male head of the father’s family, though the mother has the day-to-day care of the child. However, Customary Law recognizes that the father’s absolute right will not be enforced where it will be detrimental to the child’s welfare. For instance, where the child is of tender age, Customary Law requires that it should be left under the care of the mother. In such a case, the father’s right is merely in abeyance, and may be exercised when the child could safely be separated from the mother. ”
Margaret C. Onokah, in her BOOK FAMILY LAW, 2002, wrote that:
“Under Customary Law, a father has exclusive custodial right over the children of his marriage. This right extends beyond custody, to “ownership” of the children. Thus his right has been described as capable of transmission to his family members. The wife has no such rights over her children. During separation or on dissolution of a marriage under Customary Law, the father has custody of the children of the marriage. This exclusive custodial right of a father over the children of the marriage does not obtain under statutory marriage. In this latter, the Court
determines which of the parents has custody of the children, ‘the paramount consideration being the welfare of the children themselves. This rule of Customary Law hinged on the fact that most Nigerian communities are patrilineal (a few being the opposite matrilineal) by reason of which children belong to their fathers’ lineage”.
How can the right of custody of children be determined under the Customary Law? The answer to the foregoing question can be found in the case of Okwueze v. Okwueze (1989) 3 NWLR (Pt.109) P. 321 @
335, wherein UWAIS J.S.C (as he then was) said:
“The only proper manner in which the custody of a child under Customary Law can be determined is by specifically taking evidence to establish what is in the best interest and welfare of the child. Like the Customary Court, the High Court failed to do so. Its decision cannot, therefore, be said not to have caused a miscarriage of justice. Furthermore, the Court of Appeal made the same mistake since it agreed with the decision of the Customary Court which has been shown to have been a misdirection. It too based its decision merely on the request made by the respondent
in the Customary Court to have custody of the children and not on evidence adduced to determine the interest and welfare of the children”.
The appellant and the respondent gave evidence before the trial Customary Court Sabon Tasha Kaduna in the petition filed by the respondent (as petitioner) seeking for the right of custody of the 2 children when the marriage broke down and they were living apart. The respondent (as petitioner) testified at the trial Customary Court which have been recorded on pages 43 – 48 of the printed record of appeal. The relevant and material testimony of the respondent to the custody of the 2 children are on page 48. It is thus:
“My names are Paul Okafors; I live at Chief Okafor close No 1; behind Davina suite Mahuta village Kaduna by refinery junction I am a pensioner and a Business may I am 58 Yrs old.
I brought this petition for custody of my two female children namely Precious Onyinye Okafor aged 9 yrs
and Favour Chinyere Okafor aged 5 yrs who are presently staying with me.
The mother of these children is the respondent whom I married under the TIV native law and
custom on the 28th May 2005 in her village in Vandekiya Local Govt of Benue state and land from Aicha Local Govt left Anambra State.
After the marriage we have been staying at No. 1 Okafor Close Mahuta until 16th May 2014 when the respondent left the matrimonial home without any reason and she is living with my friend at Agwan Gimbiya, Jagaba Street; our marriage has broken down as she left me without my consent.
1. I want the custody of my children because I paid the dowry to the parent that is why she was my legally married wife.
2. Since she did not seek my consent or discuss with me concerning breaking the marriage she left with my children that is why I want my children back.
3. I have a legacy and standard law protecting concerning the children so that they can be useful to the society and to bide my character and my culture.
I am therefore looking for the permanent custody of the children as law only having a temporal custody of them.”
?As to the interests and welfare of the 2 children, this is what she said on page 45 of the record of appeal:
“The children are
schooling at covenant star Academy at Agwan Boro and I pay N63,000 per term for them where may take Back fast and lunch; including the break-fast they take before going to school.
I also have a program where I am saving for their education; I also pay N6,000= for their school bus per month and where the bus breaks down I do pick them myself even when the respondent was around.
The children are more comfortable with me because even when their mother was around I am the one that make myself available for the children I also make since that provides what so ever is good a child expects from the father. We are a staying in a six bed room flat with a large compound and a flower Garden for children paying coned by me.
My business premises is situated in front of my compound where I sale Building materials and a provision store that is why I am 24 hrs available in my house.
The place where my children are now i.e my house their house and they are more comfortable there them in a rented house where they were before when the respondent ran away with them. The environment where they were taken to is not suitable
for the children to live.”
The appellant (who was the respondent at the trial Court) gave evidence to support her claim of right to the custody of the 2 children as recorded on page 49 of the printed record of appeal:
“My names are Charity Okafor I live at No.3 Angwan Gimbiya, Jagaba Street N.3 Kaduna: I am a business woman I sale clothes at Angwan Pama Sabo Tasha; I am 31 Yrs old.
I know the petitioner he was my husband; I am aware that the petitioner brought this petition for custody of this two children. Precious Okafor and Favour Okafor. The petitioner cannot be able to take care of the children because they are Girl children and they are too small and being their mother and still alive he don’t have good training to give them for instances the smokes and he is drunkard.
I said they girls and too small because the 1st, girl child as born on 16/6/2006 i.e 8 yrs and the 2nd one was born on the 16/9/2009 i.e about 5 yrs old. I have their birth certificate with me and I can identify the birth certificates by their name issued by the Kaduna North Local Govt. stamp.
Ct: Do you have any objection in
tendering the birth certificate in evidence?
Aneme: we have no objection in tendering the certificates in evidence.
Ct: The birth certificates of the children i.e. Precious and Favour are hereby admitted in evidence a marked Exhibit 2 and 3.”
As to the reason why she objected to the respondent being granted the right of custody of the children, he testified thus on page 50 of the printed record of appeal:
“DW1: The children are his but considering their ages and being Females he cannot be able to take care of them or any other women; when the children grow up if he is still interested in them staying with him then he can have them.
The problem which let to this matter being in Court stated last year Feb 7, 2013 when the petitioner started bringing woman into our matrimonial home and when I caution him he got anger and told me that I am not the one to live his life for him and if I dont think what he is doing that I should have his house; so when the problem became too much sometime in June 2013 he then called my parent to come and when the came he carried me together with my children and hand us over
to my father that he is no longer interested in the marriage, that my father should go with me and my children”.
The evidence of the respondent (as the petitioner) and that of the appellant (as the respondent) at the trial Court, established that:
i. The marriage between the appellant and the respondent was conducted under the Tiv Native Law and Custom.
ii. The children of the marriage, Precious Onyinye Okafor and Favour Chinyere Okafor were 8 and 5 years respectively, at the time of the trial at the Lower Court.
iii. The evidence of the respondent on what he had done or prepared to do for the children on regarding their welfare, education and upbringing have not be controverted by the appellant.
The settled principles of law on the right to custody of children under Customary Law enunciated in the case of Okwueze v. Ukwueze (1989) 3 NWLR (Pt.109) P. 231 @ 334; Family Law in Nigeria by E. Z. Nwogugu P. 260 and Family Law by Magaret C. Onokah pages 178-179 reinforces the Lower Court’s reasoning and conclusion on page 101-102 of the printed record of appeal whereby the judgment of the trial Customary Court was set aside, and the
right of custody of the two (2) children was restored to the respondent thus:
“The trial Court in its judgment, especially on pages 44-45, gave the following reasons why custody was given to the respondent, that –
1. The children are minors, ages 8 & 5 years, hence not in the interest of justice to grant custody to the petitioner.
2. That the respondent enrolled them in school
3. That the respondent has a source of livelihood and stays in a 2 bedroom apartment.
The respondent counsel in his submission contended that the respondent has means of livelihood and had enrolled the children in school as stated by the respondent in her evidence. We have stated the reasons why the trial Court awarded custody to the respondent. The first reason is that the children are minors. The children in question as at the time of the case before the trial Court they were 8 & 5 years. See page 9 of the record in the evidence of PW1, the petitioner. It should be noted that the union between the appellant and the respondent was contracted under TIV Native Law and Custom. Generally in most if not all tribes in
Nigeria, children custody is to the father especially when they are of the ages of three to five. In Family Law by Margaret C. Onokah, on page 179 it was stated that:
“Although a woman may have custody of the those children who are of tender age at the time of the divorce, this is only temporal. When the children have reached the age of three to five years, their father exercises his right to have them under his custody”
In the instance case as we have stated supra, the children in question as at the time of the judgment before the trial Court, they were 9 & 5 years old. It is our humble view, the children at that age can conveniently stay with the appellant. More so, there is no evidence before the trial Court which shows any disaffection or lack of harmony between the appellant and the children.”
The reasonings and conclusions arrived at by the Lower Court cannot be faulted. Consequently, the sole issue raised and argued by learned counsel to the parties in their respective briefs of argument is hereby resolved against the appellant. In the result, the appeal fails, the judgment of the Lower Court delivered on
the 30th of June, 2015, in Appeal No. CCA/KAD/KD/10A/2015 is hereby affirmed. I make no order as to
costs.
?UWANI MUSA ABBA AJI, J.C.A.:?I had a preview of the leading?judgment of my learned brother, Ibrahim Shata Bdliya, JCA, just delivered.?
I agree with the reasoning and conclusions arrived at by my learned brother that the appeal is devoid of any merit. The law was exhaustively considered by my learned brother in the consideration of the issue for determination to the extent that I have nothing useful to add.
I too dismiss the appeal. I abide by the consequential orders made therein including orders as to costs.
ISAIAH OLUFEMI AKEJU, J.C.A.:?I had the opportunity of reading before now the judgment of my learned brother, IBRAHIM SHATA BDLIYA JCA just delivered. I agree that this appeal lacks merit based on the sound reasoning and the resolution of the lone issue by my learned brother, I dismiss the appeal and abide by the consequential order.
Appearances
J. B. Amos with him, C. D. Ishu Esq.For Appellant
AND
E. C. AnemeFor Respondent
