ADESEKE v. ADESEKE (2020)

ADESEKE v. ADESEKE

(2020)LCN/14108(CA)

In The Court Of Appeal

(ADO-EKITI JUDICIAL DIVISION)

On Thursday, March 19, 2020

CA/EK/89/2018

Before Our Lordships:

Fatima Omoro Akinbami Justice of the Court of Appeal

Paul Obi Elechi Justice of the Court of Appeal

Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal

Between

ADEFOLAJU EBEN ADESEKE APPELANT(S)

And

FOLAKE MERCY ADESEKE RESPONDENT(S)

RATIO

CRITERIA TO BE CONSIDERED IN HE DETERMINATION OF THE WELFARE OF THE CHILDREN IN MATRIMONIAL CAUSES

In AFOLABI V. AFOLABI (2007) 9 NWLR 9PT. 1039) 305 it was held that award of custody of the children of a marriage that has broken down irretrievably, as in this case, is governed by Section 71 (1) of the Matrimonial Causes Act, which enjoins the Court in proceedings relating to custody, guardianship, welfare, advancement or education of children of the marriage, to take the interest of the children as paramount consideration and the Courts in this regards are “Given Wide discretionary power” which they can exercise according to the peculiar circumstance of each case.

The children of the marriage had been living with their mother in Akure which the Appellant acknowledged. In Afonja vs. Afonja (1971) 1 UILR 105 it was held that certain relevant criteria must be considered in the determination of the welfare of the child as in this case, and they include:
(a) The degree of familiarity of the child with each of parents (parties)
(b) The amount of affection by the child for each of parents.
(c) The respective incomes of the parties
(d) Education of the child
(e) The fact that in the case of children of tender ages custody should normally be awarded to the mother unless other consideration make in undesirable etc. PER ELECHI, J.C.A.

WHETHEROR NOT THE TRIAL COURT HAS THE DISCRETIONARY POWERS TO DETERMINE THE STATUS OF PARTIES IN THE MAINTENANCE AND WELLFARE OF THE CHIDREN OF A MARRIAGE

The trial Court has the discretionary powers to determine as per the status of the parties what is payable for the upkeep maintenance and welfare of the children of the marriage with what conforms with the economic realities of today marriage. So, the issue of the award being arbitrary or unjustifiable does not arise, nor was it a misdirection.

Even the case of Menakaya v. Menakaya (Supra) relied upon by the Appellant does not fall on all four walls with the present. In that case (Menakaya) there was no evidence at all before the trial Court unlike in the present case. In that case, the Supreme Court said:
“Another irregularity which the majority decision of the Court of Appeal upheld is the judgment of the learned trial judge. It is agreed by both the majority Justices and the minority that the judgment of Oninoba J. is not a consent judgment. As I reproduced the facts earlier in this judgment, the learned trial Judge did not receive any evidence before he wrote his judgment. When counsel appeared before him in chambers and put forward the parties’ proposal is and counter proposals is it was clear to the Court that parties were not ad idem. Now it is a big question to ask; where did the learned trial judge find the evidence which guided him to exercise his discretion to decide on the issues of disagreement between the parties? PER ELECHI, J.C.A.

THE GUDINING PRINCIPLES FOR THE CUSTODY OF CHILD OR CHILDREN OF A MARRIAGE

The extant law, that is to say, the Matrimonial Causes Act provided the guiding principle whenever the issue of custody of child or children of marriage is under consideration. This point, Section 71(1) Matrimonial Causes Act provides as follows:
“In the proceedings with respect to custody, guardianship, welfare, advancement or education of the children of the marriage, the Court shall regard the interest of those children as the paramount consideration and subject thereto the Court may make such orders in respect to those matters as he thinks proper.”
What constitute the interest of a child is not however stated in the Matrimonial Causes Act, but the Court must look at the circumstances of each case in distilling that issue. Thus, in the caseWilliams VS. Williams(1987) 2 NWLR (Pt. 54) 66, Kabiri-Whyte JSC observed as follows:
“In the determination of the welfare of a child is a composite of many factors and considerations such as the emotional attachment to a particular parent, mother or father, the inadequacies of the facilities, such as educational, religious or opportunities for proper upbringing are matters which may affect the determination of who should have custody.”
From the plethora of decided authorities, the factors the Court may consider in granting custody of a child include the following:
1. Age and sex of the child;
2. Wishes of the child;
3. Education and Religion;
4. Nationality of the parents; and
5. Equality of the parents: this presupposes that either parent may be entitled to the custody of the child.
The Court is not entitled to prejudge which party will have custody before considering the interest of the child.
In custody matters the decision of the Court is a matter of discretion and therefore this Court will not interfere with the decision of the Court below except a miscarriage of justice has occurred or same was not exercised properly see,ACME BUILDERS LTD. V. K.S.W.B (1999) 2 NWLR (PT. 590 288). PER ELECHI, J.C.A.

WHETHER OR NOT THE APPELATE COURT CAN SET ASIDE THE DISCRETION EXERCISED BY THE HIGH COURT

In Dr. Sola Saraki v. N.A.B. Kotoye (1990) 6 SCNJ 31 at 51, where it was held:
“It is well settled that the Court of Appeal cannot set aside a discretion exercised by the High Court because it would have exercised the discretion differently.”
Also see Solanke v. Ajibola (1968) 1 ALL NLR 46 AT59; (1969) 1 NMLR 253.
Even inspite of the above, in custody proceedings, unless it is abundantly established or made clear that the mother suffers from moral conduct, infections diseases, insanity, lack of reasonable or is cruel to the children etc., custody of the children ought to go to their mother. It is known fact that children of tender age, male or female are ordinarily better off in terms of welfare and upbringing with their mother. There is always that rebuttable presumption in favour of the mother of the children of dissolved or broken down marriage, see ODOGWU V. ODOGWU (1992) NWLR (PT. 215), (1992 LPELR 2229 (SC).
Also Tabansi v. Tabansi (2009) 12 NWLR PT. 1155, the Court of Appeal declared that the Court will mostly favour the wife especially in circumstances where the child or children in question are minors, a girl child or of tender age and will only give the father preference where it can be proved that the conduct of the wife is morally reprehensible and this is not the case here. Also the Court will as earlier on stated in the course of this judgment, decision on custody is entirely at the discretion of the trial judge, to be exercised judicially and judiciously. See Williams v. Williams (Supra) therefore for an appeal against the exercise of discretion to succeed, it must be shown by the Appellant that there has been wrongful exercise of discretion and that the Court acted under a mistake of law or in disregard of principle or under a misapprehension of facts or on the ground that injustice could arise or that no weight or no sufficient weight has been given to relevant consideration or when as it is usually said that discretion was not exercised judicially. See ODUTOLA V. KAYODE (1994) LPELR-226 (SC), (1994) 2 NWLR (PT. 324) 1, (1994) 2 SCNJ 21. PER ELECHI, J.C.A.

PAUL OBI ELECHI, J.C.A. (Delivering the Leading Judgment): This appeal is against the final judgment of the High Court of Ekiti State, Ado Ekiti Judicial Division delivered on the 11th day of June, 2018 by His Lordship, Hon. Justice Daramola wherein the petition and the cross petition were dismissed, maintenance order made and custody of the children of the marriage granted to the respondent in this appeal.

The Appellant being dissatisfied with the entire decision of the trial Court has now appealed to the Court of Appeal, Ekiti State Judicial Division. In the Notice of Appeal dated 5th day of September, 2018 and filed on the 6th day of September, 2018 the grounds are set out in paragraph 3 of the said Notice of Appeal. The reliefs sought in this appeal are as contained in paragraph 4 of the Notice of Appeal.

STATEMENT OF FACTS
The Appellant and the respondent got married on the 14th day of June, 2004 at the Marriage Registry of Akure South Local Government Area of Ondo State. The Appellant through his petition dated 28th day of August, 2015 and filed same date petitioned the trial Court for decree of judicial separation of his

marriage with the respondent on the ground that the marriage has broken down irretrievably based on the following facts;
(i) Abandonment and lack of care and affection by the respondent.
(ii) Intolerant behaviour of the respondent.
(Hi) Desertion by the Respondent.

And an order granting custody of the children of the marriage to the appellant.

The Respondent however cross petition for a decree of dissolution of the marriage between her and the appellant, an order for custody of the children of the marriage and maintenance order.

Appellant learned counsel stated that despite the evidence on record and the specific finding of the trial Court, that the marriage between the appellant and the respondent has broken down irretrievably as contained on page 106 of the Record of appeal, the trial Court failed to make a definite pronouncement on the status of the marriage between the parties in line with the provisions of the law but rather dismissed the petition and the cross petition, granted custody to the respondent and rewarded maintenance order in the sum of N60,000.00 vis-a-vis an order that the appellant be paying two third of three

children school fees without evidence as to means /income of the appellant. More so, in granting custody of the children of the marriage to the respondent, the trial Court based its decision on the age and sexes of the children hence the need for the present appeal.

ISSUES FOR DETERMINATION
In view of the decision of the trial Court and more importantly, from the ground contained in the notice of appeal, the appellant has formulated the following issues for determination.
i. Whether it was not a fundamental error in the Law for trial Court to have held that the marriage between the appellant and the respondent has broken down irretrievably without making a pronouncement on the dissolution of the marriage thus leaving the status of the marriage between the appellant and respondent unresolved. (Ground one of the Notice of Appeal.)
ii. Whether the trial Court was not wrong to have given judgment on an issue which there was no evidence before it whatsoever. (Ground two of the Notice of Appeal.)
iii. Whether the trial Court was not wrong to have held that custody of minors or a girl of tender age will mostly be given to the wife. (Ground

three of the Notice of Appeal.)

LEGAL ARGUMENT ON THE ISSUES
ISSUE 1
Whether it was not a fundamental error in the Law for trial Court to have held that the marriage between the appellant and the respondent has broken down irretrievably without making a pronouncement on the dissolution of the marriage thus leaving the status of the marriage between the appellant and respondent unresolved.
Learned Appellant counsel submitted that it was a fundamental error in law for the trial Court to have held that the marriage between the appellant and the respondent has broken down irretrievably without making a pronouncement on the status of the parties to the marriage.

The appellant in the trial Court petitioned for judicial separation of the marriage while the respondent cross-petitioned for the dissolution of the marriage, pages 1, 6, 13, and 23 of the record of appeal respectively.

Also submitted is the fact that the principal relief of the appellant and the respondent, in the trial Court was either a judicial separation or dissolution of marriage. The trial Court having found that the marriage between the parties has broken down

irretrievably, should as a matter of law and necessity dissolve the marriage. The omission of the trial Court in this regard is a fundamental error in law. See Section 55 of the Matrimonial Causes Act.

Learned counsel contended that it is therefore a matter of necessity not an option for a Court in matrimonial proceeding to make a decree or order upon being satisfied of the existence on the ground in respect of which relief is sought. Hence the trial Court’s failure or omission to dissolve the marriage between the appellant and the respondent, having found out that the marriage between them has indeed so broken down is a fundamental error in law. A petitioner, in this regard the appellant, who is able to satisfy by evidence as contained in the record of appeal that the marriage between him and the respondent has broken down irretrievably is entitled to dissolution of such marriage. This was the position of the Court in Harriman v. Harriman (1989) 5 NWLR (Pt. 119) 6 at 5.

In concluding argument on this issue it is submitted that judgment of the trial Court in not making a pronouncement on the status of the marriage between the appellant and the

respondent, after finding as a fact that the marriage has broken down irretrievably is unclear, unspecific, ambiguous, not capable of easy digestion and execution as required by law.
The Court is urged to so hold and resolve this issue in favour of the Appellant.

Issue 2
Whether the trial Court was not wrong to have given judgment on an issue which there was no evidence before it whatsoever.
It is submitted that the judge was wrong to have given judgment on an issue of maintenance where there was in fact no evidence whatsoever before it on the income of the Petitioner/appellant.
The Court is urged to so hold.

According to learned counsel it appears from the records that there was no evidence or findings by the trial Court as regards the actual salary/income of the appellant during the trial, the monthly support/allowances of Sixty Thousand Naira (N60, 000.00) granted to the respondent is therefore unjustifiably and arbitrarily made and the Court is urged to so hold.
See Section 75 of the Matrimonial causes Act.

Also submitted is that there is no proceedings in respect of the maintenance order granted by the trial Court

since there is no evidence as to the means/salary of the appellant before the trial Court. See Section 70(1) of the Matrimonial causes Act in respect of maintenance of a party.

In view of the above provision of law that the trial Court award of maintenance without evidence of the appellant actual means/salary and other relevant factors is not only arbitrary but unjustifiable in the circumstance of the case.
The judgment of the trial Court on maintenance award is a misdirection. See Menakaya v. Menakaya (1996) 9 NWLR (PT. 472) 256

The Court is urged to hold that the trial Court misconducted itself when it gave judgment in respect of claim for maintenance arbitrarily without regard to the actual earning capacity of the appellant vis-à-vis of the fact that the Court also ordered the appellant to be paying two third of three children of the marriage’s school fees.
The Court is urged to resolve this issue in favour of the Appellant.

ISSUE 3
Whether the trial Court was not wrong to have held that custody of minors or a girl of tender age will mostly be given to the wife.
It is submitted that the trial Court was wrong and

misdirected itself to have held that custody of minors or a girl of tender age will mostly be given to the wife.

On issue of custody in matrimonial proceedings, Section 71(1) Matrimonial Causes Act provides:
In the proceeding with respect to the custody, guardianship, welfare, advancement or education of children of the marriage the Court shall regard the interest of those children as the paramount consideration and subject thereto the Court may make such order in respect to those matters as it thinks fit.

The provision of the law as quoted above is clear and unambiguous which is to the effect that, in granting order of custody in matrimonial proceedings regard must he had to the interest of the children of the marriage and not whether the children are minors, girls, tender in age.

On whether custody of a child of tender age must be awarded to the mother, it was held in the decided case of Nanna v. Nanna (2006) 3 NWLR (Pt. 966) 1 at 37-38 that the fact that a child is of a tender age does not necessarily mean that its custody will always be granted to the mother but the Court will readily do so if it is in the interest of the child.

Therefore there is no immutable principle of law custody of a child of tender age should be awarded to his mother in divorce proceedings. Also Williams v. Williams (1987) 2 NWLR (Pt. 54) 66, Lafun V. Lafun (1967) 1 NMLR 101.
The Court is urged to resolve this issue in favour of the Appellant.

Given that facts of this case and the evidence adduced by parties, the Respondent adopted the three issues as formulated by the Appellant.

ISSUE ONE
Whether it was not a fundamental error in the Law for trial Court to have held that the marriage between the appellant and the respondent has broken down irretrievably without making a pronouncement on the dissolution of the marriage thus leaving the status of the marriage between the appellant and respondent unresolved.
In response to issue one raised by the appellant, it is submitted that this Honourable Court has power to pronounce on the dissolution of this marriage but the claim of the petitioner is that of judicial separation which was dismissed by the honourable Court but the petitioner is now complaining about the refusal of the lower Court to pronounce on dissolution of marriage even when he

has no such claim as is contained at page 6 of the records of Appeal before the Court without more. See the case of DUMEZ NIG LTD V. NWAKHOBA NO POWER TO AWARD A RELIEF OT CLAIMED BY PARTIES.

It is contended that the appellant cannot be expected to cry more than the bereaved, it was the Respondent who sought for the dissolution of marriage rather the appellant should address this Court on failure of trial Court to pronounce on his claim which is Judicial Separation and not dissolution of marriage. It is the respondent that can complain before this Court why her claim which is a dissolution of marriage was not granted.

Failure of trial Court to pronounce on the dissolution of marriage does not in any way affect the judgment of the trial Court. The marriage between the appellant and respondent is deemed dissolved by pronouncing that same has broken down irretrievably, what is more is that the parties here in have been living apart before the institution of this action by the petitioner.

It is hereby stated that in the face of the findings of the trial Court that the marriage has broken down irretrievably then the presumption is that the parties

can no longer be expected to live together as husband and wife. The marriage is already dissolved and it is tantamount to saying the obvious. The fact remains that parties have been living apart since year 2014 almost 2 years before the institution of the action and parties had been to the family Court in Ondo State on the welfare of the children of the marriage, therefore the trial Court was right in holding that the marriage had broken down irretrievable and therefore the parties cannot be expected to live together as husband and wife again.
The Court is urged to resolve this issue in favour of the Respondent.

ISSUE TWO
Whether the trial Court was not wrong to have given judgment on an issue which there was no evidence before it whatsoever.
The welfare and upkeep of the children is always the first issue to be considered before granting the custody of the children to either of the parties and when this custody is to be granted the sex, age and the possibility of taking proper care of the children would have to be considered by the Court.

Looking at the case at hand, all the 3 children of the marriage are currently living

with their mother. Then the Court in exercising its direction granted the custody of the children to their mother who is the respondent in this appeal having put all the factor stated herein into consideration. See the case of Williams vs. Williams 1987 2 NWLR (Pt 54) 66 at 89.

The Court has the power to make an order as to how much is to be paid by Appellant for the maintenance upkeep, welfare and education of the children of the marriage. There is undisputed fact that the Appellant is a senior lecturer in a reputable state University in Ekiti State and this is as contained at pages 75 and 111 of the record of appeal consequent upon which the order for the payment of N60, 000.00 for the maintenance, upkeep and welfare of the 3 children of the marriage was well made by the trial Court.

The trial Court has the discretionary power to determine what is payable for the upkeep maintenance and welfare of the children of the marriage in line with what conforms with the economic reality in the country.

ISSUE THREE
Whether the trial Court was not wrong to have held that custody of minors or a girl of tender age will mostly be given to the wife.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

The trial Court was not wrong or misdirected itself to have held that the custody of minors or a girl of tender age will mostly be given to the wife.

parents.
(c) The respective incomes of the parties
(d) Education of the child
(e) The fact that in the case of children of tender ages custody should normally be awarded to the mother unless other consideration make in undesirable etc.

It is contended that based on ground A above, the familiarity between the respondent and the children of marriage are cordial in nature. This familiarity can be found on the record of Appeal at page 110 where the trial court held thus: and this holding of trial court has never been challenged by the Appellant in this appeal. See the case of IGA VS. AMAKIRI (1976) 11 SC 1.

However the Appellant has never in any way challenged the affection between the Respondent and the children of the marriage.

The respective income of the parties has to be well considered before the custody of children can be granted. At the page 112 of the record of Appeal the trial Court held firmly that both parents that is, Appellant and Respondent are working senior public servants who are capable of funding their children education, the trial Court held further that the Appellant should pay two-thirds while their mother should

pay one-third. The appellant has never challenge the holding of the trial court on the equitable sharing of payment of children school fees and welfare. It is further submitted that the Appellant does not object to this holding of trial court. His silence could only be interpreted as consent. See EMECHETA VS. OGUERI (1997) 8 NWLR (PT. 5160 323 Ratio 11 where the Court of Appeal citing IGA VS AMAKIRI (1976) 11 SCI Illustrated the maxim “silence means consent”.

The appellant said in his brief of argument, that respondent was not ready to take up any responsibility apart from custody of children.

However, the respondent said under cross-examination at pages 84 of the record of appeal that she had been paying her children school fees. This piece of evidence was not denied by the appellant at the lower Court. It is the law that where a piece of evidence is not controverted, the Court is obliged to believe same and act on it. See the case of NATIONAL INSURANCE CORPORATION OF NIGERIA (NICON) VS POWER & INSUSTRIAL ENGINEERING CO LTD. (1986) 1 NWLR (PT. 14) 27 where it was held that it is settled that a Court of law faced with unchallenged or

uncontroverted evidence is entitled to believe such evidence and give it its full weight and value.
Finally, the Court is urged to dismiss this appeal and uphold the judgment of the trial Court.

RESOLUTION OF ISSUES
The resolution of issues in this appeal will be based on the issues formulated by the Appellant as hereunder stated viz.
(i) Whether it was not a fundamental error in the law for the trial Court to have held that the marriage between the appellant and the respondent has broken down irretrievably without making a pronouncement on the dissolution of the marriage thus leaving the status of the marriage between the appellant and respondent unresolved. (Ground one of the notice of appeal.)
(ii) Whether the trial Court was not wrong to have given judgment on an issue which there was no evidence before it whatsoever. (Ground two of the notice of appeal.)
(iii) Whether the trial Court was not wrong to have held that custody of minors or a girl of tender age will mostly be given to the wife. (Ground three of the notice of appeal.

ISSUE 1
Whether it was not a fundamental error in the law for the trial Court to have

held that the marriage between the appellant and the respondent has broken down irretrievably without making a pronouncement on the dissolution of the marriage thus leaving the status of the marriage between the appellant and respondent unresolved.

The appellant who was the petitioner at the Court below instituted this action against the respondent vide the petition filed on the 28th day of August, 2015 against the Respondent seeking the following reliefs which are contained at page 6 of record of divorce appeal.

Petitioner prays for Decree of judicial separation of his marriage with the Respondent on the ground that it has broken down irretrievably or that the Respondent has deserted the petitioner for more than one year before the presentation of this petition.

An order of this Honourable Court, granting custody of the three children of his marriage with the Respondent to the petitioner namely;
Adedamola Davidson Adeseke – 10 Years Old
Adedoyin Lois Adeseke – 8 years Old
Adedolapo Adeseke – 7 years old.

At the trial Court, the totality of the Petitioner’s case is anchored on his claim for a judicial separation and custody of

the children of the marriage while the respondent sought for dissolution of marriage and custody of children.

The petitioner in proving his case gave evidence for himself while the respondent gave evidence in favour of her cross-petition before the trial Court.
The Court after a diligent review at the pieces of evidence adduced by parties gave a well considered judgment by dismissing the claim for dissolution of marriage after holding that the marriage had broken down irretrievably.

It is not in doubt that this Honourable Court has the power to pronounce on the dissolution of the marriage in dispute as being prayed for by the Appellant as an issue which to him is a fundamental error in law. As stated earlier before now, the totality of the Appellant case even at the trial Court is actually anchored on his claim for a judicial separation and custody of the children of the marriage.

The respondent on the other hand sought for dissolution of marriage and custody of children. Both the appellant and the respondent gave evidence in respect of their petition and cross- petition.

Worthy of note is that the claim of the Appellant for judicial

separation had been dismissed by the Honourable Court. The only claim alive now is that of dissolution of the marriage which is not even appellant’s own.

For the Appellant to proclaim as stated in issue No 1 thus;
“Whether it was not a fundamental error in law for the trial Court to have held that the marriage between the Appellant and the Respondent has broken down irretrievably without making a pronouncement on the dissolution of the marriage, thus leaving the status of marriage between the appellant and respondent unresolved.”

I have a strong conviction in my mind that it does not lie in the mouth of the Appellant to contest it as an issue, after all, it was never his claim at the lower Court. By so doing, I think that the Appellant is busy fighting another person’s war. It appears that there is a high level of inconsistency from the Appellant in the presentation of this appeal. He cannot change the position of the goal post at the middle of the game. To address the issue of dissolution of marriage at this stage would be tantamount to awarding to the Appellant a relief which he did not ask for. The Court is not a Father Christmas.

See Dumez Nig. Ltd v. Nwakhoba & Ors (2008) 12 SCM (Pt 2) 504.

It is being contended by the Appellant that the judgment of the lower Court in this suit is not very clear, cogent, specific, unambiguous and not capable of easy digestion and execution and relied on the case of Barigha v. PDP (2013) 6 NWLR (Pt 1349) 106 at 141.

However, the trial judge at page 106 of the record, paragraph two of the record of appeal specifically finds as follows.
“May I say from onset that from the evidence proffered on both sides of the divide, I will not dissipate valuable time on the issue of whether or not the marriage between the parties has broken down irretrievably, it has indeed so broken. The petitioner cross-respondent wanted out while the respondent cross-petitioner also wanted out. They have indeed cancelled themselves out of the marriage that produced three beautiful children”.

The above findings of the trial Court speaks for itself, especially on the position of the trial judge on the issue of dissolution of the marriage. A literal interpretation of the above shows clearly without any doubt that the marriage has been dissolved.

Consequently, I agree with the submission of the Respondent that the trial Court has dissolved the marriage because it has broken down irretrievably as the parties have been living apart before the institution of this action by the petitioner.
Accordingly, this issue is hereby resolved in favour of the respondent.

ISSUE 2
“Whether the trial Court was not wrong to have given judgment on an issue which there was no evidence before it whatsoever.”
The issue in contention here is that the trial judge gave judgment on an issue of maintenance where there was no evidence before it on the income of the petitioner/Appellant. At page 111 of paragraph 2 of the record of appeal the Court held as follows;
“I should say here that neither of the party assisted this Court in any meaningful manner in coming to equitable resolution of this very important issue. The monthly salary/income of the petitioner cross-respondent is not stated by either side of this petition and is therefore unknown to this Court.”

Be that as it may, but the same trial Court from evidence before it also held that and said
“I will therefore take judicial notice of the fact that as a

university don and senior lecturer, the petitioner cross- respondent is in a position to support his three children with a modest monthly support allowance of sixty thousand Naira (N60,000.00)…. Since both the petitioner cross respondent and the respondent cross-petitioner are both working senior public servants, it is my decision that the father of the children shall henceforth and at all time pay two-thirds while their mother shall pay one-third of the school fees until the children shall have acquired their tertiary education.”

There was evidence and in fact, the findings of the trial Court on the economic status of both parties as senior public servants and a university don for that matter. The parties do not need to disclose their bank accounts before the Court. The trial Court has the discretionary powers to determine as per the status of the parties what is payable for the upkeep maintenance and welfare of the children of the marriage with what conforms with the economic realities of today marriage. So, the issue of the award being arbitrary or unjustifiable does not arise, nor was it a misdirection.

Even the case of Menakaya v. Menakaya (Supra)

relied upon by the Appellant does not fall on all four walls with the present. In that case (Menakaya) there was no evidence at all before the trial Court unlike in the present case. In that case, the Supreme Court said:
“Another irregularity which the majority decision of the Court of Appeal upheld is the judgment of the learned trial judge. It is agreed by both the majority Justices and the minority that the judgment of Oninoba J. is not a consent judgment. As I reproduced the facts earlier in this judgment, the learned trial Judge did not receive any evidence before he wrote his judgment. When counsel appeared before him in chambers and put forward the parties’ proposal is and counter proposals is it was clear to the Court that parties were not ad idem. Now it is a big question to ask; where did the learned trial judge find the evidence which guided him to exercise his discretion to decide on the issues of disagreement between the parties?

From the above, it is clear that the trial Court did not misdirect itself when it gave judgment in claim for maintenance as submitted.
This issue is therefore resolved in favour of the Respondent.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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ISSUE 3
“Whether the trial Court was not wrong to have held that custody of minors or a girl of tender age will mostly be given to the wife.”

father, the inadequacies of the facilities, such as educational, religious or opportunities for proper upbringing are matters which may affect the determination of who should have custody.”
From the plethora of decided authorities, the factors the Court may consider in granting custody of a child include the following:
1. Age and sex of the child;
2. Wishes of the child;
3. Education and Religion;
4. Nationality of the parents; and
5. Equality of the parents: this presupposes that either parent may be entitled to the custody of the child.
The Court is not entitled to prejudge which party will have custody before considering the interest of the child.
In custody matters the decision of the Court is a matter of discretion and therefore this Court will not interfere with the decision of the Court below except a miscarriage of justice has occurred or same was not exercised properly see,ACME BUILDERS LTD. V. K.S.W.B (1999) 2 NWLR (PT. 590 288). It is therefore the Appellant’s duty to show how the Court below failed to exercise its discretion properly.
In trying to resolve the issue of children therefore, the lower Court

stood by the established principle of law in all cases pertaining to custody of a child which is that the interest and welfare of the child must be of paramount consideration.
The trial Court made the following findings before awarding custody of the children to the Respondent:
“Now, since March 2014 when the petitioner cross- respondent travelled for two weeks and upon his return the respondent cross-petitioner had moved out of their matrimonial home, the children have been under the care and supervision of the respondent cross – petitioner. It goes without saying that those children are used to being with their mother than their father. From the circumstances of this matter, I have no iota of doubt that the children will feel more comfortable with the present status quo of living with the respondent cross-petitioner. Anything to the contrary will most certainty lead to some dislocation and disequilibrium in their present stable life.”
I can not but agree with the learned trial judge with this level assessment and understanding of the interest and welfare of the children of the marriage.
From the assessment of the circumstances of this

case ably made by the trial judge, I do not find any justification or any sound reason to interfere with the decision of the trial Court on the award of the children to the Respondent. Perhaps, I should point out that the duty of this Court is limited to finding out whether or not the trial Court made proper finding which the evidence before it deserves in awarding custody to the Respondent. It is not the function of this Court to simply set aside the decision of the lower Court on the ground only that it would have reached a different conclusion on some or even all the facts before that Court. In that regards, I find no procedural or substantive error in the award of the custody of the children to the Respondent to correction and interference with the award.
In Dr. Sola Saraki v. N.A.B. Kotoye (1990) 6 SCNJ 31 at 51, where it was held:
“It is well settled that the Court of Appeal cannot set aside a discretion exercised by the High Court because it would have exercised the discretion differently.”
Also see Solanke v. Ajibola (1968) 1 ALL NLR 46 AT59; (1969) 1 NMLR 253.
Even inspite of the above, in custody proceedings, unless it is

abundantly established or made clear that the mother suffers from moral conduct, infections diseases, insanity, lack of reasonable or is cruel to the children etc., custody of the children ought to go to their mother. It is known fact that children of tender age, male or female are ordinarily better off in terms of welfare and upbringing with their mother. There is always that rebuttable presumption in favour of the mother of the children of dissolved or broken down marriage, see ODOGWU V. ODOGWU (1992) NWLR (PT. 215), (1992 LPELR 2229 (SC).
Also Tabansi v. Tabansi (2009) 12 NWLR PT. 1155, the Court of Appeal declared that the Court will mostly favour the wife especially in circumstances where the child or children in question are minors, a girl child or of tender age and will only give the father preference where it can be proved that the conduct of the wife is morally reprehensible and this is not the case here. Also the Court will as earlier on stated in the course of this judgment, decision on custody is entirely at the discretion of the trial judge, to be exercised judicially and judiciously. See Williams v. Williams (Supra) therefore for an appeal

against the exercise of discretion to succeed, it must be shown by the Appellant that there has been wrongful exercise of discretion and that the Court acted under a mistake of law or in disregard of principle or under a misapprehension of facts or on the ground that injustice could arise or that no weight or no sufficient weight has been given to relevant consideration or when as it is usually said that discretion was not exercised judicially. See ODUTOLA V. KAYODE (1994) LPELR-226 (SC), (1994) 2 NWLR (PT. 324) 1, (1994) 2 SCNJ 21.
None of the above instances can be attributed to the consideration awarding the children of the marriage before granting custody of the children to the Respondent. Finally, custody of children is an on-going exercise akin to recurrent decimal. It is a day to day or revolving affair. Whenever any of the spouses discovers that conditions have changed or altered for the worse in respect of the interest, benefit and welfare of the children or child in the custody of another person or spouse, he or she can apply to the Court to review the custody order. The Court upon hearing the parties would reach a decision in the best interest

of the child or children as the case may be. Therefore, all is not lost, as appellant still reserves the right to approach the Court for a review of the order for custody of the children of the marriage in deserving circumstances. See Ayegba v. Ayegba (1979) 3 LRN 232 at 235 (Per Idoko, J. as he then was, now of blessed memory).
This is therefore resolved in favour of the Respondent.

Having resolved all the issues canvassed in this appeal in favour of the Respondent, the fate of this appeal is already known. The appeal has no merit and it is hereby refused.
Consequently, the judgment of the lower Court is hereby affirmed. Parties are to bear their respective costs in prosecuting this appeal.
Appeal Dismissed.

FATIMA OMORO AKINBAMI, J.C.A.: I had the privilege of reading in advance the judgment just delivered by my learned brother Paul Obi Elechi, JCA. He has dealt in great details with all the issues raised in the appeal, and I agree with his reasoning and conclusions in the lead judgment. I have nothing useful to add, I therefore adopt the judgment as mine.
I also dismiss the appeal, I abide with the consequential orders made

in the lead judgment.

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I have had the privilege and opportunity to preview the lead judgment delivered by my learned brother, Paul Obi Elechi JCA and I agree with the reasoning and conclusion reached therein.
In consequence, I also dismiss the appeal and affirm the Judgment of the lower Court and I abide by the orders made therein.
I make no order as to costs.

Appearances:

Adewumi F. O. Esq. For Appellant(s)

Busuyi Bankole Esq. For Respondent(s)