FEBISOLA OKWUEZE V. PAUL OKWUEZE
In The Supreme Court of Nigeria
On Friday, the 26th day of May, 1989
SC.202/1985
JUSTICES
KAYODE ESO Justice of The Supreme Court of Nigeria
MUHAMMADU LAWAL UWAIS Justice of The Supreme Court of Nigeria
SALIHU MODIBBO ALFA BELGORE Justice of The Supreme Court of Nigeria
ABDUL GANIYU OLATUNJI AGBAJE Justice of The Supreme Court of Nigeria
EBENEZER BABASANYA CRAIG Justice of The Supreme Court of Nigeria
Between
FEBISOLA OKWUEZE Appellant(s)
AND
PAUL OKWUEZE Respondent(s)
RATIO
THE CUSTOMARY POSITION OF LAW ON THE CUSTODY OF A CHILD
In general, under most systems of customary law in Nigeria the father of a legitimate child or legitimated child has absolute right to custody of the child. However customary law recognises that the absolute right of the father will not be enforced where it will be detrimental to the welfare of the child – see p.260 of Family Law in Nigeria by E.I. Nwogugu. However the position is now different in Ondo State for subsection (1) of Section 22 of the Customary Courts Law, Cap 33 of the Law of Ondo State, 1978 provides that in determining the custody of children born under a customary marriage, the interest and welfare of the children is paramount. The subsection reads –
“22 (1) In any matter relating to the guardianship of children, the interest and welfare of the child shall be the first and paramount consideration.” PER UWAIS, J.S.C
FACTOR TO BE CONSIDERED IN DETERMINING THE CUSTODY OF CHILDREN IN A DIVORCE PROCEEDING
First: “In deciding the award of custody of children, account should be taken of the provisions of Section 23 of the Customary Court Law, 1980 which provides as follows:
“23(1) In any matter relating to tile guardianship and custody of children the interest and welfare of the child shall be the first paramount consideration. (Italics is for emphasis)
(2) Whenever it shall appear to a Customary Court that an order made by such Court, should, in the interest of a child, be reviewed, the court may, of its own motion or upon the application of any of his relatives or guardian vary or discharge such order.”
This customary-law principles of paramountcy of children’s interest and welfare is also enshrined in other Statutory enactments For example, Section 14 of the Marriage Divorce and Custody of children Adoptive Bye-Law Order, 1958 applicable to this State captioned custody of children provides:
When making any order with regard to paternal rights over a child the court:-
(1) shall at the same time make an Order with regard to the custody and upbringing of such child and in the making of such order the interest and welfare of the child shall be the first paramount consideration: (Italics mine for emphasis).
In practice, a young child who is yet to be weaned is generally awarded to the mother but when the child has attained the age of maturity, the child is generally awarded to the father as he (the father) under Customary law has absolute right to the custody of the children but this absolute right will not be enforced where it will be detrimental to the child’s welfare as the principle of paramountcy of children’s interest and welfare supercedes any local custom and has overriding consideration.”
“The superior courts have consistently applied the principle of recognising the child’s interest and welfare as paramount in cases arising under Customary Law. For instance in Olayemi Kasebiye v. Adeyemi Civil Appeal Suit No.JD/22A/60 (unreported) 1st September, 1961, the trial Customary Court awarded the custody of the child to the father. This decision below was in accordance with the applicable customary Law, but awarded the custody of the child instead to the mother in order more nearly to comport with the best interests of the child.
The court will readily grant the custody of a child of tender age to her mother if it is in the interest of the child (See Re: L (1962) 3 AJI E.R. 1; Re: B (1962) 1 All E.R. 872.” PER AGBAJE, J.S.C.
UWAIS, J.S.C. (Delivering the Leading Judgment): The respondent is Ibo from Onitsha in Anambra State of Nigeria while the appellant is Yoruba. Sometime in June, 1967 the appellant got married to the respondent under the native law and custom of Ondo in Ondo State of Nigeria. The respondent was earlier married to another woman. That marriage was subsisting when he got married to the appellant. The appellant was aware of the earlier marriage before she agreed to marry the respondent. There are four children of the marriage between the appellant and the respondent. Three of the children are females while the fourth child is a male.
On the 23rd day of August, 1982 the appellant instituted an action in the Ondo Grade II Customary Court, sitting at Ondo.
The Customary Court stated the appellant’s claim as follows-
“The plaintiff’s claim against the defendant is for the dissolution of their 15 years old marriage on the grounds of lack of love, ill-treatment and rejection since two years ago. Plaintiff to refund N40.00 dowry to her husband.”
When the suit came up for hearing on the same day the claim was brought, the respondent asked for reconciliation but the appellant stated that she would not welcome any reconciliation since she had left their matrimonial home two years ago before her claim was instituted. Nevertheless the Customary Court adjourned the hearing of the case to the 9th day of September, 1982 to enable the parties to reconcile. The respondent could not contact the appellant during the adjournment because she refused to make herself available. Consequently, the reconciliation was aborted.
In her testimony at the hearing of the case, the appellant stated as follows- “I am a trader. I got married to the defendant (i.e. respondent) under native law and custom at Ondo in the year 1967 and I have since then been living with him. I have four issues for him.
Defendant was married to one other woman legally before I became his wife. Defendant’s legal wife and I did not agree a nd defendant’s legal wife and I did not exchange greetings since 1970, still defendant did not reconcile the two of us. My children and the children of the Legal wife did not play together or even exchange greetings. Defendant has a building in his home town, Onitsha but did not give me any room there. I used to live with the defendant’s brother in his own house whenever I went to Onitsha with the defendant. Defendant’s relation did not like me and none of the defendant’s relations has come to visit my own relations since I got married to the defendant in 1967. I have taken note of the above points and therefore decided to divorce him.” (Italics mine)
In his own testimony the respondent confirmed that he got married to the appellant at Ondo in 1967 according to the native law and custom of Ondo. He also stated that he had been married earlier to his first wife before he got married to the appellant. He lived with the two wives at Ibadan for two years before he was transferred as an employee to Ikare. Later he was transferred from Ikare to Owo and it was when he was stationed at Owo that he received a letter from the appellant stating the complaints mentioned in her testimony which has been quoted above. The appellant threatened in the letter to leave the matrimonial home by December, 1979. The respondent testified further that –
Plaintiff (i.e. appellant) packed out of my house on 12th February, 1980 leaving 3 out of the 4 issues she had with me, the fourth child having been staying with the plaintiffs aunt. Plaintiff then told me that she did not come to my house with any child and that she would not leave my house with any child also………..
I am conscious of the fact that plaintiff is willing to run away with all that I have done for her to another man’s house, neglecting my four children who I very much love and hence I want to state that I vehemently oppose the plaintiffs claim. I am however willing to admit the claim if the court wishes is so, on the understanding that I would like to take custody of all my four children”(Italics mine).
After the testimonies of the parties were briefly considered, the Customary Court granted divorce to the appellant and concluded the sketchy judgment as follows-
In this circumstance, therefore, we have no option but to grant that their marriage be dissolved. Judgment for plaintiff, Divorce granted. Plaintiff to pay N40.00 being dowry to defendant. Issues of the marriage 4: (a) Bosede (female) 14 years old (b) Ngozi (female) 12 years old (c) Victor (male) 9 years old (d) Gloria (female) 6 1/2 years old.
Plaintiff to release the immediate custody of Bosede, Ngozi, Victor and Gloria to defendant.”
Not satisfied with the judgment of the Customary Court, the appellant filed an appeal to the High Court of Ondo State holden at Ondo and also applied to the Customary Court for stay of execution of the order of custody of the children of the marriage pending the determination of her appeal by the High Court. The order of stay was granted by the Customary Court. The main complaint of the appellant was in respect of the custody granted to the respondent. Of the three grounds of appeal which she filed, ground I reads-
“1. The Court is wrong in Law and in fact when it granted custody of the children to the defendant without considering the interest and welfare of the children.”
The appellate High Court (Balogun, J) held that the Customary Court did not advert to the provisions of Section 23 of the Customary Courts Law, Cap. 33 of the Laws of Ondo State, 1978 before granting custody to the respondent. The appellate High Court, therefore, considered the provisions of the Section as well as the principles of custody under statutory marriages and decided as follows –
” In short, this is a case in which there has been no proper assessment of the totality of evidence and clearly a case where the decision is against the weight of evidence. In the circumstance the order of the lower Court as to the award of custody must be reversed. (See Chief S. O. Gbadamosi v. M. Aderogba Ajao, (unreported) S.C. (Coram Ademola C.J.N., Coker, Madarikan, JJ.S.C.) 24/6/1968, Woluchem v. Gudi, (1981) 5 S.C. 291 at pp.306-31O; Magnus Eweka v. Bello S.C. 90/1979 (unreported) of 30/1/81 (i.e. Bello v. Eweka, (1981) 1 S.C. 101); Rev. (sic) Kayode Eso, J.S.C. A.R. Mogaji & Ors. v. Odofin, (1978) 4 S.C. 91.
This appeal succeeds, the order made by the lower court granting custody of the children to the defendant is hereby set aside. The custody of all the children is granted to the plaintiff with whom the children have been staying. It is further ordered that these children shall not be removed from her custody but the defendant shall have free access to the children in consultation with the plaintiff. Either party is at liberty to supply (sic) for a variation of this order in future if conditions change. Either party is to bear his or her expenses.”
Consequently, it became the turn of the respondent to appeal against the decision of the High Court to the Court of Appeal, challenging the reversal of the decision of the Customary Court which granted the custody of the children to him. In upholding the appeal, the Court of Appeal (per Omo Eboh, J.C.A.) observed thus-
“I am at a loss to see where the appellate Judge had himself specifically considered the interest and welfare of the children before reaching his decision as to the order he made. I must say that I observe that there was no evidence that the respondent (i.e. the plaintiff) was better able or more suitable to look after the four children than the appellant (i.e. defendant) or had in fact made any arrangement for accommodation and education. It is remarkable that the respondent never said that the appellant was not a suitable person to be granted custody nor did the Judge consider or state why he thought or that the respondent (a trader who travels to Onitsha and other places from time to time) is in a better position to have custody of the four children than the appellant. So it does not appear that the learned appellate Judge gave a proper consideration to the entire case before awarding custody of the four children to the respondent. The appeal therefore succeeds on those grounds.”
The order of custody made by the appellate High Court was therefore set-aside by the Court of Appeal and the order of custody made by the Customary Court giving custody to the respondent was restored. Hence the appellant brought the present appeal. She successfully applied to the Court of Appeal for the stay of the judgment of that Court pending the determination of this appeal.
Six grounds of appeal have been filed and briefs of argument had been exchanged by the parties. In the appellants’ brief four issues have been formulated for the determination of this Court. They read –
“3.1 Whether the Court of Appeal was not wrong in awarding the custody of the children of the marriage of the parties to this appeal to the respondent herein without first ascertaining by due inquiry and adequate consideration the interest and welfare of the children of the said marriage.
3.2 Whether the Court of Appeal did not wrongly apply the decision in Ekpeyong & Ors. v. Nyong & Ors. (1975) 2S.C. 71 to the appeal before them and to the effect that the award of custody of the children of the marriage to the appellant herein by the appellate High Court was wrong in that she never requested or asked for same in her writ.
3.3 Whether the award of custody of the children of the marriage to the respondent herein by the trial court and the Court of Appeal was not based on wrong considerations and whether the said award was supported by clear evidence.
3.4 Whether the learned Justices of the Court of Appeal did not misdirect themselves in law when they held that there was no evidence on which the appellate High Court based its order and conclusion that the issues of the marriage had been staying with the appellant herein before the divorce decree was made by the trial court.”
The respondent has adopted all the issues in his brief of argument.
Now it is clear from the foregoing that the crucial issue in this appeal is the complaint against the reversal of the decision of the High Court which gave the custody of the children to the respondent. This is obvious from the first three out of the four issues that have been formulated.
First of all there are more to the case in the Customary Court than really meets the eye. The appellant in her evidence showed that the respondent was “legally married” to his first wife before he married her according to native law and custom. The question that follows is: do the words “legally married” refer to a marriage under the Marriage Act, Cap. 115 of the Laws of the Federation of Nigeria, 1958 If the answer is in the positive, then the next question is was the marriage between the appellant and the respondent in fact valid in view of the decision in Onwudijoh v. Onwudijoh, (1957) 11 E.R.L.R. and Craig v. Craig (1964) L.L.R 96 and the provisions of Section 35 of the Marriage Act, which states-“35. Any person who is married under this Act, or whose marriage is declared by this Act to be valid, shall be incapable, during the continuance of such- marriage, of contracting a valid marriage under customary law; but, save as aforesaid, nothing in this Act contained shall affect the validity of any marriage contracted under or in accordance with any customary law, or in any manner apply to marriages so contracted.”
This observation becomes necessary because if in fact there was no valid marriage between the parties in this case, the question of determining the custody of the children cannot be said to have come under the jurisdiction of the Customary Court; but will be governed by the provisions of Infants Law, Cap 49 Laws of Ondo State, 1978 in which case the jurisdiction of the Customary Court would have been ousted. (See Section 7 thereof and Omodion v. Fasoro & Anor. (1960) W.N.L.R. 27). However this point did not occur to any of the lower courts nor to the learned counsel in the appeal, nor was it raised in the course of hearing the appeal.
Be that as it may, assuming the point does not arise, it is clear from the quotation of the testimony of the respondent in the Customary Court that he wanted custody of the children but the Customary Court merely dealt with the issue peremptorily. The appellant made no reference in her testimony to the issue of custody but was pre-occupied with her claim for divorce, and she was not asked by the Customary Court any question on the issue of custody. There was therefore no sufficient evidence on which the custody of the children could have been determined by the Customary Court.
In general, under most systems of customary law in Nigeria the father of a legitimate child or legitimated child has absolute right to custody of the child. However customary law recognises that the absolute right of the father will not be enforced where it will be detrimental to the welfare of the child – see p.260 of Family Law in Nigeria by E.I. Nwogugu.
However the position is now different in Ondo State for subsection (1) of Section 22 of the Customary Courts Law, Cap 33 of the Law of Ondo State, 1978 provides that in determining the custody of children born under a customary marriage, the interest and welfare of the children is paramount. The subsection reads –
“22 (1) In any matter relating to the guardianship of children, the interest and welfare of the child shall be the first and paramount consideration.”
The Customary Court in deciding that the respondent should have custody of the children made no reference to the provisions of the subsection and it is clear from its brief judgment that it in fact did not take the subsection into consideration before it granted the custody of the children to the respondent. The Customary Court therefore misdirected itself. If the Customary Court had adverted to the provisions it no doubt would have considered in general the practice under Yoruba customary law which has been stated by R.O. Ekundare in his booklet titled – Marriage and Divorce under Yoruba Customary Law; where it is stated as follows on p.64 thereof-
“In the case of a dissolution, the customary court will consider what is best for the child. If the child is too young, e.g. if it has not been weaned, the court will grant an interim order giving the custody to the mother notwithstanding the fact that she has been found to be the guilty party. If the child has attained, say, the age of five, the court will have to consider who can best take care of the child. If the court is convinced that the father can best provide for the child, especially when the mother has no independent means of her own, the child will be put in his custody, notwithstanding the fact he was the guilty party. The sex of the child is also taken into consideration. A female child is considered to be more comfortable with the mother, while a male child is considered to fit in with the father. The court may refuse to grant custody to either of the parents, if the court is convinced that none of them is capable of giving the child the best care. In such a case the court may decide to grant custody to a guardian (in most cases, a relative)”. (Italics mine).
From the foregoing it is obvious that the failure of the Customary Court to take all the aforesaid into consideration in granting custody to the respondent had led to a miscarriage of justice. The High Court was right in adverting to the provisions of Section 22(1) of the Customary Courts Law, Cap. 33 but it based its decision on custody of children under Statutory marriage by following a number of English decisions. This is obviously a misdirection. 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.
There is one other point that I consider pertinent in this appeal. It is the ages of the children in question as at today. In September, 1982, when the Customary Court heard the case, Bosede was 14, Ngozi was 12, Victor was and Gloria was 6 1/2. It is now more than 6 years since the proceedings in the Customary Court took place. In effect, the ages of the children are now over 20, 18, 16 and 13 respectively. Have the children not now passed the age of infancy under which they may be considered to need close parental care and attention The word “child” has not been defined under the Customary Courts Law, Cap. 33 nor is it defined under the interpretation Law Cap. 51 of the Laws of Ondo State 1978. However, the Children and Young Persons Law Cap. 21 of the Laws of Ondo State 1978 defines “child” as a person under the age of 14 years and the Infants Law, Cap. 49 of the Laws of Ondo State, 1978 defines “child” as a person under the age of twenty one years. But Section 7 of the Infants Law specifically provides that its provisions on guardianship and custody of children do not apply to children who are subject to Customary Law. The ordinary meaning of child is not also very helpful. Webster’s New Twentieth Century Dictionary, Unabridged, 2nd Edition defines “child” as a boy or a girl in the period before puberty. And it defines “puberty” as the age of 14 for male and 20 for female. This does not correspond with the definition under the Children and Young Persons Law. The Concise Oxford Dictionary, 17th Edition defines “child” as a person who has not reached the age of discretion. Section 70 of the Matrimonial Causes Act 1970 provides that a child who has attained the age of twenty-one is not entitled to maintenance. There is, however, no provision in the Act as to age limit with regard to custody. In England, Section 42 of the Matrimonial Causes Act, 1973 empowers Courts to make order, as they think fit, for the custody and education of a child who is under the age of eighteen. This power notwithstanding it is not usual for the courts in England to make a custody order in respect of a child who has reached the age of sixteen – see Hall v. Hall (1945) 62 T.L.R. 151 C.A. where the order for the custody of a child of the age of seventeen was discharged. Admittedly the provisions of our Matrimonial Causes Act, 1970 do not apply to marriages contracted under customary law – see section 69 thereof; but in the absence of any specific provisions under the relevant customary law or any statute or rule applicable to customary courts, it may be desirable to seek guidance under the provisions of other laws; such as the Children and Young Persons Law Cap. 21, Infants Law Cap 49 and the Matrimonial Causes Act, 1970 with regard to custody of the children of a marriage under customary law.
In the light of the foregoing, I am of the view that in the absence of any specific provision under the Customary Courts Law, Cap. 33, the age of 16 can be considered to be the reasonable age below which a Customary Court in Ondo State would consider the issue of custody of children of a marriage performed under Customary law.
Now the reliefs sought by the appellant in her notice of appeal are –
“1. That the decision of the Court of Appeal be set-aside.
2. That the decision of the High Court be restored.
3. Any further order or orders that the Supreme Court deems fit to make in the circumstance.”
In effect if the decision of the High Court were to be restored, the custody of all the children of the customary marriage is to be given to the appellant.
This is not possible in view of the different ages above 16 which three of the children have attained. The only child that still requires parental care is in my opinion Gloria who is presently below the age of 16. She is in fact 13 years and 2 months old. However, Gloria being a female, I do not deem it necessary to remit the case to the Customary Court to determine which of the parents should have her custody. I am inclined to give her custody to the appellant – her mother, in accordance with the practice under Yoruba customary law as stated in Marriage and Divorce under Yoruba Customary Law by R.O. Ekundare.
In the result the appeal succeeds. The decisions of the High Court and the Court of Appeal are hereby set-aside. The decision of the Customary Court in respect of the custody of all the children is also set aside. The appellant is hereby granted the custody of Gloria who is the youngest of the children. There is no order as to costs in favour of any of the parties. Each party is to bear its costs.
ESO, J.S.C.: The appellant was the plaintiff in the Ondo Grade II Customary Court. She brought a claim for the dissolution of their 15 years old marriage on the grounds of- Lack of love; ill treatment; and rejection for two years previous to the claim.
She did not ask for custody of any of her four children of the marriage.
At the trial the defendant her husband opposed the claim for divorce and would only admit it on terms. He gave evidence and said –
“I am conscious of the fact that plaintiff is willing to run away with all that I have done for her to another man’s house, neglecting my four children who, very much love and hence I want to state that I vehemently oppose the plaintiffs claim.”
The Court dissolved the marriage and awarded custody without hearing the plaintiff on the issue of custody to the defendant.
The plaintiff appealed to the High Court and the only issue in that Court was issue of custody. That Court held that there was no proper assessment of the totality of the evidence. The Court allowed the appeal and awarded the custody to the plaintiff saying-
“The custody of all the children is granted to the plaintiff with whom the children have been staying.”
Now there was no evidence that the children stayed with the plaintiff after she had abandoned the matrimonial home and so one could understand the reversal by the Court of Appeal of the order of the High Court after hearing the parties on appeal.
The issue before us is as to whom custody should be awarded. There is no doubt that no court has examined really the main issue in custody cases.
Sub-section (1) of Section 22 of the Customary Court Law (Cap. 33) of the Laws of Ondo State 1978 which is definitely applicable to this case provides-
“22(1) In any matter relating to the guardianship of children, the interest and welfare of the children shall be the first and paramount consideration.”
Upon a strict adjudication, the proper order this court should make is to remit the issue of custody to the Customary Court to take evidence upon which S.22(1) of the Customary Courts Law could be based.
The order to be made in this case has given me a great concern. For the purpose of any order is to see to the justice of the case, especially as the trial court could have had jurisdiction to make an order on custody as an ancillary order.
I have had a preview of the judgment which has just been read by my learned brother, Uwais, J.S.C., and I am in complete agreement with his treatment of this matter. Only the youngest child Gloria could be said to need custody now as all the other children are practically of age.
I cannot conceive of giving the custody of Gloria to the defendant for when the plaintiff left the matrimonial home, Gloria was staying with the plaintiffs aunt and was not with the father. Defendant said in his evidence –
“Plaintiff packed out of my house on 12th February, 1980 leaving 3 out of the 4 issues she had with me, the fourth child having been staying with plaintiffs aunt.”
Gloria is a girl who would at her age need a mother’s care and guidance more than a father’s. Though there is no evidence of the custom in regard thereto in Ondo, judicial notice could be taken of a notorious Yoruba custom that a mother usually takes custody of her daughter. Indeed it is notorious that a father never seeks custody of his daughter in a mailer of dissolution of marriage for the reasons of the type of care the female requires.
I will therefore allow this appeal and I abide by all the orders made by my learned brother, Uwais, J.S.C., including his order as to costs.
BELGORE, J.S.C.: I read beforehand the lead judgment of my learned brother, Uwais, J.S.C., with which I agree. I make the same consequential orders he has made.
AGBAJE, J.S.C.: The plaintiff, Mrs. Febisola Okwueze, sued the defendant, Mr. Paul Okwueze, in a Grade II Customary Court of Ondo State, holden at Ondo claiming against him the following relief:-
“The plaintiffs claim against the defendant is for dissolution of their 15year old marriage on the grounds of lack of love, ill-treatment and rejection since two years ago. Plaintiff to refund N40.00 dowry to her husband.”
The actual trial of the case began on 9/9/82 ended and proceeded to judgment on the same day. The whole of the proceedings and judgment in the customary court was short. For reasons hereinafter I will reproduce it verbatim:-
“Plaintiff present, Defendant present. Defendant informs the court that all efforts made by him and his friends to reconcile with the plaintiff proved abortive, because plaintiff did not make herself available since both of them, i.e. he and the plaintiff left the court on 23rd August, 1982.
Plaintiff says that she is not willing to reconcile with the defendant anymore.
Plaintiff sworn on bible states in Yoruba, my name is Febisola Okwueze, I live at 306, Isale-Ijebu Street, Akure. I am a trader. I got married to the defendant under native law and custom at Ondo in the year 1967 and I have since then been living with him. I have four issues for him.
Defendant was married to one other woman legally before I became his wife, defendant’s legal wife and I did not agree and defendant’s legal wife and I did not exchange greetings since 1970, still defendant did not reconcile the two of us. My children and the children of the legal wife did not play together or even exchange greetings. Defendant has a building in his hometown, Onitsha but did not give me any room there. I used to live with the defendant’s brother in his own house whenever I went to Onitsha with the defendant. Defendant’s relations did not like me and none of the defendant’s relations has come to visit my own relations since I got married to the defendant in 1967. I have taken note of the above points and therefore decided to divorce him. In answer to a question, plaintiff says that she was aware that defendant had a legal wife before she agreed to marry him in 1967 because defendant told her that his legal wife would not be offended.
Defendant sworn on bible states in English. My name is Paul Okwueze. I am a civil servant. I work in the Ministry of Agriculture, Produce Division, Ikare-Ondo State. I married the plaintiff under native law and custom of Ondo State in June 1967 at Ondo. Plaintiff and I went into hiding soon after we got married because of the Nigerian Civil War and plaintiff and I, with my senior wife and my children, plaintiff’s children inclusive, lived together in one house at Ibadan for about 2 years after which I was transferred to Ikare. Plaintiff and her 2 children followed me to Ikare. Plaintiff had another 2 children for me after I had left Ibadan on transfer.
Plaintiff only brought to my knowledge about all she gave as her reasons to divorce me in a letter which she wrote to me while I was on transfer to Owo, in 1969. Plaintiff wrote in the letter under reference that she would pack out of my house at the end of December, 1979. I wrote to the plaintiff that the reasons she gave in her letter were not reasonable to make her take such a decision so as to dissolve our marriage. I made it known to the plaintiff that the building I own at Onitsha is let out to tenants and that I did not even reserve any room to myself or to my senior wife. I explained to the plaintiff that she could see that I use to live elsewhere whenever I went to Onitsha. None of my relations has ever quarreled with the plaintiff since I got married to her in 1967. Plaintiff had always lived with my people whenever she went to carry on with her trade at Onitsha. One of my brothers even brought his son from where he worked at the University College Hospital, Ibadan to live with the plaintiff because of the cordial relationship between that my junior brother and the plaintiff. It is in view of the above facts that I wish to state that plaintiff’s reasons as to why she has decided to divorce me is full of lies.
Plaintiff packed out of my house on 12th February, 1980 leaving 3 out of the 4 issues she had with me, the fourth child having been staying with the plaintiff’s aunt. Plaintiff then told me that she did not come to my house with any child and that she would not leave my house with any child also. It is evident that I did all that has been humanly possible to raise the status of the plaintiff to the position she is at the moment she (plaintiff) is now a landlady at Ondo through my help. Plaintiff and I decided to buy cars at the same time and we chose the car numbers at the same time before plaintiff left my house. Plaintiff has now bought her own car. I have financed every private business being owned by the plaintiff.
I am conscious of the fact that plaintiff is willing to run away with all that I have done for her to another man’s house, neglecting my four children who I very much love and hence I wish to state that I vehemently oppose the plaintiff’s claim. I am however willing to admit the claim if the court wishes is (sic) so on the understanding that I would like to take custody of all my four children.
(Court). We have taken note of the statements made by the plaintiff and the defendant and we believe that plaintiff is bent on divorcing the defendant because there is no love between her and the legally married senior wife of the defendant. Although plaintiff stated that defendant’s relations did not like her, plaintiff did not dispute one fact that she brought one of the children of the defendant’s junior brother from Ibadan to live with her, which we believe.
We also take note of the fact that plaintiff did not at anytime in her statement made mention of anytime when defendant did not treat her in the way that she did not like. We believe that defendant tried everything in his power to show his love to the plaintiff but that plaintiff is bent on divorcing the defendant, because the love is just not there between plaintiff and defendant anymore and this is through the plaintiff.
In this circumstance, therefore, we have no option but to grant that their marriage be dissolved. Judgment for plaintiff. Divorce granted, Plaintiff to pay N40.00 being dowry to defendant.
Issues of the marriage 4: (a) Bosede (female) 14 years old (b) Ngozi (female) 12 yrs old (e) Victor (male) 9 yrs old (d) Gloria (female) 6 1/2 yrs. old.
Plaintiff to release the immediate custody of Bosede, Ngozi, Victor, and Gloria to defendant.”
The plaintiff being dissatisfied with the judgment appealed against it to an Ondo High Court. The appeal was heard by Balogun, J., who in his judgment given on 27/4/83 allowed the plaintiff’s appeal and set aside the order for custody made by the Customary Court in favour of the defendant.
In the course of arriving at this decision, the appellate High Court Judge directed himself as follows as to the law applicable to the case before him:
First: “In deciding the award of custody of children, account should be taken of the provisions of Section 23 of the Customary Court Law, 1980 which provides as follows:
“23(1) In any matter relating to tile guardianship and custody of children the interest and welfare of the child shall be the first paramount consideration. (Italics is for emphasis)
(2) Whenever it shall appear to a Customary Court that an order made by such Court, should, in the interest of a child, be reviewed, the court may, of its own motion or upon the application of any of his relatives or guardian vary or discharge such order.”
This customary-law principles of paramountcy of children’s interest and welfare is also enshrined in other Statutory enactments For example, Section 14 of the Marriage Divorce and Custody of children Adoptive Bye-Law Order, 1958 applicable to this State captioned custody of children provides:
When making any order with regard to paternal rights over a child the court:-
(1) shall at the same time make an Order with regard to the custody and upbringing of such child and in the making of such order the interest and welfare of the child shall be the first paramount consideration: (Italics mine for emphasis).
In practice, a young child who is yet to be weaned is generally awarded to the mother but when the child has attained the age of maturity, the child is generally awarded to the father as he (the father) under Customary law has absolute right to the custody of the children but this absolute right will not be enforced where it will be detrimental to the child’s welfare as the principle of paramountcy of children’s interest and welfare supercedes any local custom and has overriding consideration.”
“The superior courts have consistently applied the principle of recognising the child’s interest and welfare as paramount in cases arising under Customary Law. For instance in Olayemi Kasebiye v. Adeyemi Civil Appeal Suit No.JD/22A/60 (unreported) 1st September, 1961, the trial Customary Court awarded the custody of the child to the father. This decision below was in accordance with the applicable customary Law, but awarded the custody of the child instead to the mother in order more nearly to comport with the best interests of the child.
The court will readily grant the custody of a child of tender age to her mother if it is in the interest of the child (See Re: L (1962) 3 AJI E.R. 1; Re: B (1962) 1 All E.R. 872.”
“Finally in Re F (an infant) The Times, November, 18, 1975 held:
“(1) approving J. v. C (1970) A.C. 668at 710, 711, that when all relevant facts, relationships, claims and wishes of parents, risks, choice, other circumstances are taken into account and weighed, the course to be followed will be that which is most in the interest of the child’s welfare as that term is now understood.”
(2) Following Ward v. James (1966) 1 Q.B. 273 “the Court of Appeal will interfere if it can see that the Judge has given no weight (or no sufficient weight) to those consideration which ought to have weighed with him and so his discretion can be reviewed.”
I would say that most of the decisions cited above are on custody of children born under Statutory marriage but the principles as to the interest and welfare of the children are the same.”
Applying the above principles to the case before him, the learned appellate High Court Judge held:-
“In the present appeal before me, the lower Court never took into consideration the welfare and the interest of the children nor did it take into consideration the salient factors enumerated above and part of which were revealed in the evidence before awarding the custody of the children to the defendant/respondent. For example the court did not consider the fact that the defendant/respondent had no other wife living with him and that he had no stable place of abode as he was being transferred from place to place. All these factors will affect the education, welfare, general upbringing, health and stability of the children.
In short, this is a case in which there had been no proper assessment of the totality of evidence and clearly a case where the decision is against the weight of evidence. In the circumstance the order of the lower court as to the award of custody must be reversed.”
The learned Judge made the following order:-
This is appeal succeeds, the order made by the lower court granting custody of the children to the defendant is hereby set aside. The custody of all the children is granted to the plaintiff with whom the children have been staying. It is further ordered that these children shall not be removed from her custody but the defendant shall have free access to the children in consultation with the plaintiff.”
The defendant was not satisfied with the judgment. So he in turn appealed against it to the Court of Appeal, Benin Division. His appeal was successful. That court, coram, Eboh, Okagbue and Ikwechegh, JJ .C.A. in its judgment dated 21st March, 1985, upheld all the grounds upon which the defendant attacked the judgment or the appellate High Court. According to the lead judgment of Eboh, J.C.A. in which the other two learned Justices concurred, the first reason for allowing the defendant’s appeal is as follows:-
“Arguing the appeal before this court on 29/1/85, counsel to the appellant submitted that the appellate Judge was wrong in law in making an order of award of custody of the four children to the respondent when she never claimed or asked for such a relief in the court below.
It is significant that counsel to the respondent said nothing to the contrary of this submission and of course no such thing could be urged since the plaintiff, in her simple divorce action made no claim for custody of the children in her writ and she did not ask for such relief during her evidence in the Customary Court Grade II, Ondo. I regard this point as important on the authority of 71 at pp.80 – 81 where Ibekwe, J.S.C. laid down the following principle:-
“A court of law may award less, and not more, than what the parties have claimed. A fortiori, the court should never award that which was never claimed or pleaded by either party. It should always be borne in mind that a court of law is not a charitable institution; its duty, in civil cases, is to render unto everyone according to-his proven claim.”
This ground of appeal therefore succeeds.”
The next reason for the success of the defendant’s appeal in the Court of Appeal is as follows:
I have most carefully read through the judgment of the appellate Judge and I am of the view that although he correctly stated the principles upon which an award of custody of children of a marriage are based, he did not appear to have quite as correctly applied these principles to the established facts of this case. In the first place, I do not agree with his reasoning or conclusion that a civil servant, because of the fact that he is subject to transfer from time to time, cannot have a stable home. I think it is obvious that the Customary Court took the view, rightly in my own opinion that the appellant was a good, responsible and suitable man, as a father, to be given the custody of the four children in view of the unyielding and uncompromising attitude of the respondent (as plaintiff). It is the attitude and practice of the courts to grant custody of young children to their mothers even where they are blame-worthy or their conduct is not complimentary but the custody of the children of customary marriages, where the children are already sufficiently matured, is usually granted to their fathers. In this case, as at September 1982, the four children of the customary marriage in issue were already matured (in the sense that none of them was still a small child) for they were as follows:-
1. Bosede – Female aged 14 years
2. Ngozi – Female aged 12 years
3. Victor – Male aged 9 years
4. Gloria – Female aged 6 1/2 years.”
And then the defendant’s appeal in the Court of Appeal succeeded because of the following view of Omo J .C.A. in his lead judgment:-
“I am at a loss to see where the appellate Judge had himself specially considered the interest and welfare of the children before reaching his decision as to the order he made. So it does not appear that the learned appellate Judge gave a proper consideration to the entire case before awarding custody of the four children to the respondent.”
And finally the Court of Appeal was of the view that appellate High Court Judge misdirected himself as to the facts in the following order for custody he made namely:-
“The custody of all the children is granted to the plaintiff with whom the children have been staying.” the wrong implication being that the children in question have for some time immediately before the date of the order have been staying with the plaintiff.
In the end the Court of Appeal made the following orders:-
“This appeal succeeds substantially on all the grounds and it is accordingly allowed. The judgment of the High Court, Ondo delivered 27th April, 1983 is hereby set aside and the order made therein granting custody of the four children to the respondent (Febisola Okwueze) is hereby reversed and annulled.
The Judgment of the Customary Court Grade II, Ondo delivered on 9th September, 1982 together with the order granting custody of the four children to the appellant (Paul Okwueze) is hereby upheld and affirmed.”
The plaintiff is dissatisfied with the judgment of the Court of Appeal. So she has again lodged an appeal this time, against the judgment of the Court of Appeal.
Briefs of arguments have been filed on both sides and issues arising for determination on the grounds of appeal filed by the plaintiff have been clearly identified in the briefs. In the circumstances I do not consider it necessary to refer again to the grounds of appeal. According to the brief of argument for the plaintiff filed by her solicitor Taiwo Kupolati, Esqr. of Gani Fawehinmi’s Chambers, the issues arising for determination in this appeal are as follows:-
ISSUES FOR DETERMINATION
“Whether the Court of Appeal was not wrong in awarding the custody of the children of the marriage of the parties to this appeal to the respondent herein without first ascertaining by due inquiry and adequate consideration the interest and welfare of the children of the said marriage.
Whether the Court of Appeal did not wrongly apply the decision in Ekpenyong & Ors. v. Nyong & Ors. (1975) 2 S.C. 71 to the appeal before them and to the effect that the award of custody of the children of the marriage to the appellant herein by the appellate High Court was wrong in that she never requested or asked for same in her writ. Whether the award of custody of the children of the marriage to the respondent herein by the trial court and the Court of Appeal was not based on wrong considerations and whether the said award was supported by clear evidence.
Whether the learned Justices of the Court of Appeal did not misdirect themselves in law when they held that there was no evidence on which the appellate High Court based its order and conclusion that the issues of the marriage had been staying with the appellant herein before the divorce decree was made by the trial court.”
Counsel for the defendant S.K.A. Adedoyin Esqr. of Adegbite Adedoyin & Co. in the brief of arguments for the defendant agreed to the issues as formulated by counsel for the plaintiff.
I will take issue 2 first, whether or not the Court of Appeal was correct in its application of the decision in Ekpenyong & Ors. v. Nyong & Ors. (supra) to the effect that a court of law not being a charitable institution should never award that which was never claimed or pleaded by either party, in this case. I have referred earlier in this judgment to the passage in the lead judgment of Eboh, J.C.A. where this decision was applied.
There is no doubt as observed by the Court of Appeal that there was no formal claim by the plaintiff in her claim for custody of the children of the marriage in the event of the dissolution of the marriage by the court. And indeed the plaintiff did not say in evidence in court that she wanted custody of the children. The latter does not mean of course that it is implied that she did not want custody of the children. All that can be legitimately said on the above state of affairs is that in her claim and in her evidence she did not ask for custody of the children. If this were all that matters on the point at issue in a case which originated in a customary court I might be inclined to agree with the Court of Appeal that there is room for the application of the decision in Ekpenyong and Ors v. Nyong & Ors. (supra) in this case. I am conscious of it that in Olalekan v. CO.P. (1962) 1 All N.L.R. 487 at 490 this court has held that the customary courts in Nigeria are the survivals of the old Native Courts to which the Common Law and some of its technicalities are unknown and foreign. I am also aware of it that there are decisions of the highest court of this country at one time or another to the effect that what matters in proceedings in Native Courts is substance and not form – see for instance Okuma v. Isutsu 10 W.A.C.A. 89. It has also been said that in order to find out the claim in a Native Court one must not limit oneself to the claim, one must look at the evidence.
I have looked at the claim and the evidence in this case before I concluded that the plaintiff has not asked for the custody of the children of the marriage. In other words, I have allowed myself to be guided by the authorities I have just cited by looking not only at the claim in this case, which is form but also at the substance, which is the evidence of the plaintiff before saying that she had not asked or prayed for the custody of the children of the marriage.
As I have said above if this were all that matters I might have been inclined to agree with the Court of Appeal in its application of decision of Ekpenyong v. Nyong (supra) in this case. But it is not and for the following reason.
The order for custody in this case is an ancillary order. It is a pendant to the order dissolving the marriage in this case. There is no dispute that the customary court has jurisdiction to make an order for custody consequent upon dissolution of a marriage. This takes me to the provisions of Order XI rule 1 of the Customary Courts Rules of Ondo State which say:-
“1. A court may in its discretion make any order within its powers and jurisdiction which it considers the justice of the case demands whether or not the order has been asked for by the party who is entitled to the benefit thereof:
Provided that judgment shall not be given, except as to costs, for a greater sum of money than that claimed in the particulars of claim.”
Because of the above provisions it appears to me that one cannot fault the order of a customary court of Ondo within its powers and jurisdiction on the ground solely that the party who is entitled to the benefit of the order has not asked for it.
Truly enough the defendant in whose favour the Customary Court made the order asked for the order. It was the appellate High Court who made the order for custody in favour of the plaintiff who did not ask for it.
This necessarily takes me to the provisions of Section 46 of the Customary Courts Law of Ondo State which relate to procedure, practice and manner of appeal in the High Court of Ondo State in appeals from a decision of customary court to the High Court:-
“46. Subject to the provisions of this Law, the procedure, practice and manner of appeals shall be in accordance with the rules made under this Law, the High Court Law, and any other written laws empowering the making of such rules.”
It appears clear from the above statutory provisions to me that the provisions of Order XI rule 1 of the Customary Courts Rules are applicable in the High Court of Ondo State in its appellate jurisdiction over a decision of a Customary Court as it is here.
So I am satisfied that because of the provisions of Order XI rule 1 of the Customary Courts Rules, the decision in Ekpenyong v. Inyang (supra) cannot be applied here. So I agree with counsel for the plaintiff that the Court of Appeal was in error in relying on Ekpenyong v. Nyong, in holding that the appellate High Court was wrong in making a custody order in favour of the plaintiff since the latter did not ask for the same.
I can now go on to the consideration of the other issues in this case. But before I do so I have to touch on the ages of the subjects of the custody order as at now, about seven years after the customary court made the custody order the subject of the dispute now before us on appeal, and their significance in the con of custody orders generally.
At the time the custody order was made in the customary court on 9/9/82 Bosede, female was 14 years old, now at 26/5/89 she is 20 years 8 months; Ngozi, female, 12 years old, now 18 years 8 months; Victor male, 9 years, now 15 years 8 months; and Gloria 6 1/2 years now 13 years 2 months. If the custody proceedings were in a High Court and in respect of the children of a marriage under the Act it is clear, following the practice and procedure in such matters in England, it would not be usual to make custody order in respect of a child who has reached the age of sixteen, see Hall v Hall (1945) T.L.R. 151 C.A. where the order for the custody of a child of the age of seventeen was discharged. The principle behind this rule as I see it is that custody order can only rationally be made in respect of children and young persons and not in respect of persons who can be said to have reached the age of manhood or womanhood.
Every legal system including native law and custom recognises the status of a minor i.e. the status of a person who has not attained the age of manhood or womanhood. Having attained the latter age, the legal system says a minor attains his or her majority and loses the status of a minor.
We do not have before us in this case the relevant native law and custom as to age limit in custody orders. But having regard to what I have just said above that custody orders can only rationally be made in respect of the minors of the children of any marriage.
The rule as to age limit will in my judgment apply in custody proceedings in customary courts governed by native law and custom. The next question that arises is this, what should the age limit be I do not think we will be justified to apply the age limit of 16 I mentioned earlier on in this judgment as a rule of thumb in the custody proceeding in this case.
Happily we are not without assistance from the legislature as to what the age limit should be. I now turn to Children and Young Persons Law of Ondo State Cap. 21 Laws of Ondo State. This is a law to make provision for the welfare of the young and the treatment of young offenders and for the establishment of juvenile courts. Part 8 of the Law deals with possession and custody of children and young persons. Section 40 of this law provides as follows:-
“40. The Executive Council may by order notwithstanding any customary law to the contrary declare that in any area in the State described in such order no person shall give or acquire the custody, possession, control or guardianship of any child or of any young person or of any female of any specified age below the age of seventeen years or shall remove any such female from such area save in accordance with rules made by the Executive Council and such rules may be either general or made in respect of any particular area in the State.”
Then we have section 23(1) of the Customary Courts Law 1980 which says:”
23(1) In any matter relating to the guardianship and custody of children the interest and welfare of the child shall be the first paramount consideration”. (Italics for emphasis).
It appears therefore to me that the definition of the word “child” and “young person” in section 2 of the Children and Young Persons Law of Ondo State gives one a clue as to the age limit in custody proceedings notwithstanding any customary law to the contrary. In that section “child” is defined:-
“Child means a person under the age of fourteen years”
and “young person” is defined thus:
“young person means a person who has attained the age of fourteen years and is under the age of seventeen years.”
The Matrimonial Causes Act 1973 U.K. provides that the court may make such order as it thinks fit for the custody and education of any child of the family who is under the age of eighteen. And I have said that in England it is not usual to make a custody order in respect of a child who reached the age of sixteen. The local legislation I am relying on in this case for assistance as to the limitation placed upon the age of a child in respect of whom a custody order could be made says a young person, or for that matter a child, is a person under the age of 17 years.
From the foregoing I am satisfied that the rule that a custody order will not be made in respect of a child who has reached the age of sixteen can validly apply in the case now before us on appeal. The corollary to this rule is that a custody order made in respect of a child under the age of 16 will lapse, or cease to be operative when that child attains the age of 16.
Now I go on with the consideration of the other issues arising for determination in this appeal, bearing in mind what I have said about the limitation placed upon the age of a child in respect of whom a custody order could be made.
I will take the remaining three issues together, for the arguments on them to overlap. And in the final analysis the three issues boil down to the consideration of the point whether the award of the custody of the children to the defendant by the trial customary court which was restored by the Court of Appeal, having set aside the custody award to the plaintiffs by the appellate High Court, was right and proper having regard to the law and the totality of the evidence on the point. Central to the point I am considering are the provisions of Section 23 of the Customary Courts Law of Ondo State which say that in a matter of this nature the interest and welfare of the child shall be the first and paramount consideration. I must also keep it constantly at the back of my mind that in dealing with the proceedings in customary courts what matters most is substantial justice without regard to technicalities. In this regard counsel for the plaintiff has drawn our attention to the following passage from the judgment of Nnaemeka-Agu, J.S.C. in Olujinle v. Adeagbo (1988) 2 N.W.L.R. (Pt.75) 238 at 251:-
“But the learned Chief President (of Ibadan City No.2 Grade ‘A’ Customary Court) appears to have forgotten that he was presiding over a native tribunal; and that another principle of perhaps greater antiquity and veneration is that native tribunals are courts of substantial justice and that as a corollary to the fact that there are no pleadings or other technical rules of procedure in such courts is the fact that it is permissible to look at the claim, findings and even evidence given in such courts to find out what the real issues were.”
The appellate High Court in overturning the custody order in favour of the defendant held that the trial customary court never took into consideration the welfare and the interest of the children of the marriage before making the order it made. More specifically the appellate High Court Judge said there had not been by the trial court a proper assessment of the totality of the evidence before it. Then the appellate High Court Judge gave the custody of the children to the plaintiff without himself showing in what respect he had considered the welfare and the interest of the children having regard to the totality of the printed evidence. The Court of Appeal, Benin Division rightly in my view criticized this latter aspect of the judgment of the appellate High Court Judge. The Court of Appeal for its part as per the lead judgment of Omo, J.C.A. construed the judgment of the trial court as follows:-
“There can be no doubt from the way the appellant testified before the Customary Court and the way he solicited for reconciliation with his wife (although she had deserted him and the children for about three years) showed the appellant out as a responsible, considerate and suitable person who had the interest and welfare of the four children upper-most in his mind hence he specially requested the court to grant him custody of the children if all his efforts at reconciliation failed and the court had no alternative than to dissolve the marriage as the respondent was then insisting upon. This, to my mind, was how the customary court saw it hence the order as to custody of the children which the court made in the case in favour of the appellant, who was a civil servant, has a secure job and would be able to cater for their interests and welfare which in the present con include their maintenance, needs, and education.”
I have reproduced the whole of the proceedings and judgment in the Customary Court in this judgment. On a very careful reading of that judgment, it appears crystal clear to me that the reasons the Court of Appeal attributed to the trial court for the custody order it made did not appear on the face of the judgment of that court nor were they the necessary implications of the evidence before that court or of any of the findings of that court. In effect the Court of Appeal based its judgment on surmises which it wrongly called the views of the trial court.
What the Court of Appeal in my view should have done, having rightly again in my view, held that the appellate High Court made the custody order it made without itself considering the welfare and the interest of the children of the marriage was to have considered the desirability of sending back the custody issue for a retrial, if on the printed evidence without regard to technicalities the order for custody in favour of the plaintiff or the defendant could not properly be made if due regard were to be paid to the welfare and interest of the children of the marriage as the first and paramount consideration.
In respect of Gloria a female aged 6 1/2 years at the time of the trial and now 13, for reasons hereinafter appearing, an order for custody can properly be made with due regard being paid to her welfare and interest as the first and paramount consideration.
As regards the other children of the marriage there was no sufficient material on the printed evidence upon which a custody order in favour of the plaintiff or the defendant can be granted consistently with due regard being paid to the law that their welfare and interest shall be the first and paramount consideration. So in their case the proper order the Court of Appeal should have made, having set aside the custody order made by the appellate High Court, was to have sent the custody issue in respect of them to the trial court for a retrial. But the Court of Appeal did not do this. It wrongly in my view restored the custody order of the trial court.
And now when I am giving judgment in the appeal lodged against the judgment of the Court of Appeal, the ages of these three children are as follows, Bosede, 20 years 8 months; Ngozi 18 years 8 months; Victor 15 years 8 months. I have said earlier on in this judgment that in the custody proceedings now before us a custody order will not be made in respect of a child who attained the age of 16 years. So in respect of Bosede and Ngozi who have attained the age of more than 16 years no custody order can be made in respect of them and any subsisting custody order in respect of them has lapsed. In respect of Victor who is now 4 months short of the age of 16, it is clear to me having regard to the course of events in this country that by the time the order for retrial of the custody proceeding is drawn up and transmitted to the appropriate authorities, by the time the latter received the order and empanelled a new panel to take it and by the time the actual hearing of the proceeding is concluded and judgment given, a period of more than 4 months from now would have elapsed. This means that by then, Victor would have attained his sixteenth birthday and would no longer be a subject of custody order. For the above reasons it seems to me a sheer exercise in futility to send the custody order in respect of Bosede, Ngozi, and Victor for a retrial.
I now come to Gloria a female aged 6 1/2 at the time the custody order was made by the trial court. Both the appellate High Court and the Court of Appeal were agreed on the customary law on the point. And the contrary has not been suggested to us. The law is as follows as per the lead judgment of Omo Eboh, J.C.A. who having said that the appellate High Court Judge correctly stated the principles applicable in custody proceeding like the one now before us in this appeal said:-
“It is the attitude and practice of the courts to grant custody of young children to their mothers even where they are blameworthy or their conduct is not complimentary but the custody of the children of customary marriages, where the children are already sufficiently matured, is usually granted to their fathers.”
Having said that much he went on to say that Gloria aged 6 1/2 years as at September 1982 was then mature in the sense that she was then not a small child. One cannot, in my view, without doing violence, to the word “mature”, say that a child of 6 1/2 years is mature. This is a matter of drawing the proper inference from an undisputed fact. The appellate court is in as good a position as the trial court to draw the proper inference in this case from the undisputed fact that Gloria was 6 1/2 years old at the time the custody order was made at the trial court. In my judgment the proper inference from that fact is that Gloria was not mature. She is a child of tender age who should not be deprived of the tender care and affection of her mother, if due regard were to be paid to her welfare and interest as the first and paramount consideration in the custody proceeding. So on the law and the fact custody of Gloria could only have been properly awarded to her mother the plaintiff.
For the above reasons and the fuller reasons given in the lead judgment of my learned brother, Uwais, J.S.C., which I have had the privilege of reading in draft, the plaintiff’s appeal succeeds. The judgment of the Court of Appeal in this case restoring the judgment of the trial customary court is also set aside by me. The judgment of the appellate High Court awarding custody of Gloria to the plaintiff is restored by me too. The judgment of the appellate High Court awarding custody of Bosede, Ngozi and Victor to the plaintiff is hereby set aside too. For reasons I have given above I make no order for the retrial of the custody proceeding in respect of them. I too make no order as to costs.
CRAIG, J.S.C.: I have had the privilege of a preview of the judgment of my learned brother, Uwais, J.S.C., and I agree with his reasoning and the legal conclusions reached.
For the reasons contained in the said judgment, I would allow the appeal and set aside the judgment of the lower Court. I also make the same consequential orders as are contained in the lead judgment.
Appeal allowed.
Appearances
Taiwo Kupolati, Esq. For Appellant
AND
S.K.A. Adedoyin For Respondent