MGBODI v. UGIAGBE (2022)

MGBODI v. UGIAGBE

(2022)LCN/17090(CA)

In The Court Of Appeal

(BENIN JUDICIAL DIVISION)

On Wednesday, June 29, 2022

CA/B/131/2021

Before Our Lordships:

Uchechukwu Onyemenam Justice of the Court of Appeal

James Gambo Abundaga Justice of the Court of Appeal

Ademola Samuel Bola Justice of the Court of Appeal

Between

MR. REUBEN CHUCKS MGBODI APPELANT(S)

And

MRS. JEMIMA OGOR UGIAGBE RESPONDENT(S)

RATIO

WHETHER OR NOT THE COURTS AND PARTIES ARE BOUND BY THE PLEADINGS FILED IN A SUIT

It is elementary, yet a fundamental principle of pleadings that both the Court and parties to a case are bound by the pleadings filed in the suit. See LUKE V. RSHPDA & ORS (2022) LPELR-57580(SC), IDACHABA & ORS V. UNIVERSITY OF AGRICULTURE, MAWRDI & ORS (2021) LPELR-53081(SC), BAKARI V. OGUNDIPE & ORS (2020) LPELR-49571(SC), OZOMGBACHI V, AMADI & ORS (2018) LPELR-45152(SC). They cannot go outside the pleadings. No party is allowed to make a case different from what it set out from inception otherwise, it will be an act in futility. The obvious reason behind this hallowed principle of law is that a case retains its original nature from commencement to determination and a Court is not a philanthropist organization that doles out gifts that are not supplicated by recipients. PER ONYEMENAM, J.C.A.

WHETHER OR NOT THE COURT CAN DECIDE ON A MATTER BEFORE IT SUO MOTU

Acceptably, it is a fundamental principle of law that a Court should not take up a point suo motu and decide the matter before it on that point without hearing the parties. The Court must, as a matter of right, invite parties to address it on the said issue especially a party who will be adversely affected by the decision. See ENEYO & ORS V. NGERE & ORS (2022) LPELR-56880(SC), KWENEV V. STATE (2022) LPELR-57561(SC), NCC V. MOTOPHONE LTD & ANOR (2019) LPELR-47401(SC), ZION V. NRC (2021) LPELR-54952(CA).
The term “suo motu” is an abbreviation of the Latin maxim ‘ex proprio suo motu’ which means “by its own motion” and it relates to an action taken by a Court of its own accord, without any request by the parties involved. See KWENEV v. STATE (2022) LPELR-57561(SC); ANGADI V. P.D.P. (2018) 15 NWLR (PT. 1641) 1 (SC). Ordinarily, when a Court raises an issue suo motu, that is, raising an issue on its own motion or raising it as an issue not before the Court or in contemplation of the parties, the parties must be given the opportunity to be heard before a decision is reached on the issue. The reason is to avoid the Court leaving its glorious position of an unbiased arbiter to descend into the arena of conflict. See COLLINS V. DHL INTL (NIG.) LTD. (2022) 2 NWLR (PT. 1813) 87 (SC); STATOIL (NIG.) LTD. V. INDUCON (NIG,) LTD. (2021) 1 NWLR (PT. 1774) 1 (SC). This principle of law is firm because the Court is bound and confined to the issues raised by the parties and anything to the contrary will be a breach of the parties’ right to fair hearing. Fair hearing is a cardinal principle of justice which demands that a party must be heard before the case against him is determined. See ESABUNOR & ANOR V. FAWEYA & ORS (2019) LPELR-46961 (SC), SULE & ORS V. ORISAJIMI (2019) LPELR-47039 (SC); SECTION 36 OF THE 1999 CONSTITUTION (AS AMENDED). Denial of a party’s right to be heard before deciding an issue raised suo motu renders the Court’s judgment null and void and beyond redemption. See IGOIN V. AJOKO (2021) 17 NWLR (PT. 1804) 90 (SC).

However, the principle that a Judge cannot raise an issue suo motu is not sacrosanct. See IDACHABA V. UNIVERSITY OF AGRICULTURE, MAWRDI (2021) 11 NWLR (PT. 1787) 209 (SC). A Judge has the right in our adjectival law to use particular words or phrases, which, in his opinion, are germane to his evaluation of the facts of the case. In so far as he does that in line with the evidence before him, it will be unfair for counsel to castigate such a Judge or accuse him of raising an issue suo motu. See E.F.C.C V. CHIDOLUE (2019) 2 NWLR (PT. 1657) 442. PER ONYEMENAM, J.C.A.

THE POSITION OF LAW ON THE FIRST CONSIDERATION BY THE COURT IN A MATTER RELATED TO CUSTODY OR GUARDIANSHIP OF CHILDREN

Herein, the issue purportedly raised suo motu by the learned trial Judge is the grant of joint custody of Golden to the Appellant and the Respondent. In plethora of authorities, it has long been settled that in any matter relating to the custody or guardianship of children, the interest and welfare of the child shall be of first and paramount consideration. See OKIDE V. OKIDE (2020) LPELR-49989 (CA), YANGE V. MUSA (2018) LPELR-45269 (CA). In other words, the child’s interest and welfare is the guiding principle in an action for custody of children.
SECTION 71(1) OF THE MATRIMONIAL CAUSES ACT, 1970 71(1) provides thus:
“In the proceedings with respect to the custody, guardianship, welfare advancement or education of the children of 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 of those matters as it thinks proper.”
Similarly, this Court has in the case of OBAHAYA V, OBAHAYA (2022) LPELR-57141 (PP, 19-20, PARAS. D-C) (CA) Per ONYEMENAM, JCA stated thus:

“The principle of law is settled and which is that; in proceedings with respect to the custody, guardianship, welfare, advancement or education of the children of a marriage, the Court shall regard the interests of those children as the paramount consideration and subject thereto, the Court may make such order in respect of these matters as it thinks proper. See SECTION 71(1) OF THE MATRIMONIAL CAUSES ACT. Thus, in awarding custody of a child, the Court will consider the care of the child’s person, morally, physically, and mentally, Hence, the welfare and the interest of the child must be accorded paramountcy where an order of custody of the child is to be made. In fact, the welfare of children of a marriage is not only of paramount consideration but a condition precedent for the award of custody. Custody is never awarded as a reward for good conduct nor is it ever denied as punishment for the guilty party’s matrimonial offences.”
Therefore, it follows that custody imposes a responsibility that should not be taken lightly. The primary consideration would always be what is in the best interest of the child, notwithstanding any form of agreement purportedly reached by the parties prior to the proceedings in a custody matter. In deciding what order would be in the best interest of the children of the marriage, some of the factors to be borne in mind include inter alia;

UCHECHUKWU ONYEMENAM, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Edo State sitting in Benin City delivered in SUIT NO: B/654F/2017 by M. N. Asemota, J. on 19th June, 2020, wherein the trial Court granted joint custody of master Golden Uwariekaose Mgbodi to the Appellant and the Respondent.

The brief fact of the case is that the Appellant and the Respondent on 1st October, 1996 got married under the Ugbodu Native Law and Custom in Aniocha North Local Government Area of Delta State, and the marriage was blessed with two children – Michael Aghaebie Mgbodi (male) 23 years and Golden Uwariekaose Mgbodi (male) 17 years. The said marriage was dissolved in 2007 by the Owa-Oyibu Customary Court, Delta State. The Appellant sometime after the dissolution of the marriage purportedly deposed to two affidavits giving custody of the two children of the marriage to the Respondent. The content of the said affidavit was allegedly breached by the Appellant. The Respondent therefore instituted this action at the trial Court for sole custody of master Golden Uwariekaose Mgbodi. She also sought for the payments of maintenance, upkeeps and school fees of the children of the marriage from the Appellant. Upon conclusion of the proceedings, the trial Court delivered its judgment granting joint custody of Golden to the Appellant and the Respondent on 19th June, 2020.

Dissatisfied with the judgment of the trial Court, the Appellant appealed to this Court vide an amended Notice of Appeal filed on 11th November, 2021 but deemed properly filed and served on 18th January, 2022. Counsel on both sides filed their relevant processes as required by the rules of the Court and the Appeal was heard on 5th May, 2022.

Winifred Izuagie Esq., appearing for the Appellant; she adopted and relied on the Appellant’s Brief of Argument filed on 11th November, 2021 but deemed properly filed and served on 18th January, 2022; along the Appellant’s reply brief filed on 17th February, 2022 to urge the Court to allow the appeal.

Douglas Ogbankwa Esq., appearing with B. D. Erekosima Esq., for the Respondent, he adopted and relied on the Respondent’s Brief of Argument filed on 3rd February, 2022 to urge the Court to dismiss the appeal.

In the Appellant’s brief of argument settled by Winifred Izuagie Esq., a sole issue was formulated for determination to wit:
Whether or not the learned trial judge was right in ordering joint custody of Master Golden Uwariekaose Mgbodi by the Appellant and Respondent where the parties, in their respective pleadings and claims, have never pleaded and claimed joint custody thereby granting reliefs/claims not sought by the parties.

In the Respondent’s brief of argument settled by Douglas Ogbankwa Esq., the Respondent adopted the sole issue formulated by the Appellant as the Respondent’s issue for determination.

Upon careful examination of the sole issue raised by the Appellant which was adopted by the Respondent; I have the view that adopting the said sole issue raised by both the Appellant and adopted by the Respondent will substantially determine this Appeal. I shall therefore determine this appeal on the referred sole issue.

SUBMISSIONS ON ISSUE 1
Whether or not the learned trial judge was right in ordering joint custody of Master Golden Uwariekaose Mgbodi by the Appellant and Respondent where the parties, in their respective pleadings and claims, have never pleaded and claimed joint custody thereby granting reliefs/claims not sought by the parties.

Winifred Izuagie Esq., for the Appellant contended that parties are bound by their pleadings, therefore, the trial Court was in error when it granted joint custody to both parties even when the same was not sought by either of the parties. She relied on OKOYA v. SANTILI (1990)2 NWLR (PART 131) 172, ADEKEYE v. ADESINA (2011) ALL F.W.L.R. (PART 571) 1510 AT 1526, OKONJI V. NJOKANMA (1999) 14 NWLR (PART 638) 250 AT 266, DUNIYA V. JIMOH (1994) 3 NWLR (PART 334) 609; Sections 131 and 132 of the Evidence Act, 2011.

She submitted that a party must win relying on the strength of his case and not on the weakness of the Appellant’s case at the trial Court. She relied on LARMIE v. D.P.M. AND SERVICE LTD. (2006) All F.W.L.R. (PART 296) 775 AT 800; HERO v. SHERIFF (2016) All FWLR (PART 861) 1309.

The learned counsel contended that the law strictly enjoins the trial Court to confine or limit itself to the pleadings of the parties before it. Thus, any decision of a Court which proceeds in the absence of the parties’ pleadings or evidence in proof of the pleadings is perverse. He cited LAGOS v. JIBRIN (2010) ALL FWLR (PART 512) 1215 AT 1229, ISAAC V. IMASUEN (2016) ALL F.W.L.R (PART 823) 1894 AT 1902, OKONKWO v. COOPERATIVE AND COMMERCE BANK (NIG) PLC(2003) 8 NWLR (PART 822) 347.

Winifred Izuagie Esq., submitted that the trial Court suo motu raised and decided the issue of Joint custody of the child by the Appellant and Respondent at the stage of judgment thereby setting a case quite different from that which the parties have canvassed before it without giving the parties the opportunity to be heard in the matter before pronouncing on it. She cited AKINLAGUN v. OSHOBOJA (2006) ALL FWLR (PART 325) 53, ALIYU v. ITAUMA (2010) ALL FWLR (PART 510) 765 AT 777, EFFIOM v. C.R.O.S.I.E.C, (2010) ALL F.W.L.R (PART 552) 1610 AT 1634, AJUWON v. AKANNI (1993) 9 NWLR (PART 316) 182.

She submitted that a party cannot be granted a relief not sought by him. He relied on IBRAHIM AND CO. LTD. v. BCC LTD (2007)15 NWLR (PART 1058) 538, MT. MAKHAMBET v. I.T.I.S.A.N (2011) ALL FWLR (PART 585) 385, GRANTING RELIEF/CLAIM OF JOINT CUSTODY NOT BASED ON EVIDENCE.

The learned counsel also submitted that the Respondent admitted the fact that the Appellant is a man of means and that facts admitted need no further proof. She further submitted that the evidence that the Respondent does not have any financial stability was proved beyond contention. He cited OLATUNJI v. ADISA (1995) 2 NWLR (PART 376) 167, G.F. LTD v. EA. GOREM. LTD (2019) ALL FWLR (PART 1019) 889 AT 920, LIVESTOCK FEEDS PLC v. IGBINO FARMS L TD (2002) 5 NWLR (PART 759) 118, ACB LTD v. D.B. CO. LTD. (1992) 9 NWLR (PART 223) 296 AT 302, AGRO MILLERS LTD v. C.M.B. (NIG) PLC (1997) 10 NWLR (PART 525) 469 AT 469, MACAULAY v. NAL MERCHANT BANK LTD. (1990) 4 NWLR (PART 144) 283, MOMODU v. NULGE (1994) 8 NWLR (PART 362) 351, OSSAI-UGBAH VS AGOLO (2014) ALL F.W.L.R. (PART 758) 919 AT 943.

Winifred Izuagie Esq., further submitted that where a statute has provided specifically for the doing of a thing, recourse must first be had to such a situation. Thus, the provisions of Section 72 of the Child’s Right Law, 2007 to consult the wishes of the child must be complied with. She cited SCHRODER AND CO. v. MAJOR AND CO. (NIG) LTD (1989) 2 NWLR (PART 101)1, NIGERIAN NAVY v. GARRICK (2006) All FWLR (PART 315) 45, OKEREKE v. YAR’ADUA (2008) ALL F.W.L.R. (PART 430) 626 AT 654, ORUBU VS NEC AND ORS (1988)5 (PART 94) 323.

She finally submitted that the decision made by a Court in total disregard of the mandatory statutory provision of Section 72 of the Child’s Right Law, 2007 is a nullity. She cited S.E.C. v. OKEKE (2019) ALL FWLR (PART 1020) 91 AT 118, MENAKAYA v. MENAKAYA (2001) 16 NWLR (PART 738) 203. She urged the Court to allow this appeal and set aside the judgment of the trial Court.

Douglas Ogbankwa Esq., for the Respondent in response to this issue submitted that though parties and the trial Court are bound by their reliefs, the Court however is allowed to award less than what was claimed and not more than what the parties have claimed. He relied on OSALADE v. OSALADE (2020) LPELR- 51165 (CA); NNEJI v. CHUKWU (1988) 3 NWLR (PT.81)184.

He further submitted that in a matter such as this, the best interest of the child is the primary interest of the Court. He relied on SECTION 1 OF THE CHILD RIGHTS LAW OF EDO STATE, 2007; OMOTOLANI v. BABALOLA (2021) LPELR-56369 (CA), WILLIAM v. WILLIAM (1987)4 SC 32.

The learned counsel contended that, evidence that the Respondent is a business woman and a woman of means is also uncontradicted and should be deemed admitted. He relied on DG DICN & ANOR V. DINWABOR & ORS (2016) LPELR – 41316(CA), NYOMI & ANOR V. NJOKU & ANOR (2021) LPELR- 55558 (CA).

Douglas Ogbankwa Esq., further submitted that the judgment of the trial Court granting joint custody to the Appellant and the Respondent was not wrongly done as the omnibus clause contained in the Respondent’s statement of claim suffices. He relied on LASISI v. OKOBI & ORS (2021) LPELR- 56055 (CA).

He further contended that the Court is not instructed or obligated to consult the wishes of a child, but to exercise its discretion in the award of custody of a child. Thus, the decision to either consult a child or not is a discretionary power of the trial Court which cannot be interfered with unless it was not exercised judiciously or judicially. He cited SECTION 72 OF THE EDO STATE CHILD RIGHT LAW, 2007; IZUBUIKE V. CUSTOMARY COURT OBINGWA & ORS (2016) LPELR-40460 (CA); Section 66(3) (4) OF THE EDO STATE CHILD RIGHT LAW, 2007; SECTION 1 OF THE CHILD RIGHTS LAW OF EDO STATE, 2007.

He further contended that an affidavit of the Customary Court (Exhibit “D”) cannot override an affidavit of a Federal High Court (Exhibit II C1″). Therefore, the Appellant cannot approbate and reprobate. He relied on DANGOMBE v. LASSANJANG (J257 OF 2013) [2016] NGCA, 61; M. N. I. EMORI ESQ, V. HON. EGWU & ANOR (2016) NGCA, 104.

He urged the Court to resolve the issue in favour of the Respondent and dismiss the appeal.

RESOLUTION OF SOLE ISSUE
It is elementary, yet a fundamental principle of pleadings that both the Court and parties to a case are bound by the pleadings filed in the suit. See LUKE V. RSHPDA & ORS (2022) LPELR-57580(SC), IDACHABA & ORS V. UNIVERSITY OF AGRICULTURE, MAWRDI & ORS (2021) LPELR-53081(SC), BAKARI V. OGUNDIPE & ORS (2020) LPELR-49571(SC), OZOMGBACHI V, AMADI & ORS (2018) LPELR-45152(SC). They cannot go outside the pleadings. No party is allowed to make a case different from what it set out from inception otherwise, it will be an act in futility. The obvious reason behind this hallowed principle of law is that a case retains its original nature from commencement to determination and a Court is not a philanthropist organization that doles out gifts that are not supplicated by recipients.

The Appellant herein has maintained that neither of the parties at the trial Court sought for joint custody, yet, the Court made an order granting joint custody; contending that the said joint custody was an issue raised suo motu by the Court without hearing from the parties.

Acceptably, it is a fundamental principle of law that a Court should not take up a point suo motu and decide the matter before it on that point without hearing the parties. The Court must, as a matter of right, invite parties to address it on the said issue especially a party who will be adversely affected by the decision. See ENEYO & ORS V. NGERE & ORS (2022) LPELR-56880(SC), KWENEV V. STATE (2022) LPELR-57561(SC), NCC V. MOTOPHONE LTD & ANOR (2019) LPELR-47401(SC), ZION V. NRC (2021) LPELR-54952(CA).
The term “suo motu” is an abbreviation of the Latin maxim ‘ex proprio suo motu’ which means “by its own motion” and it relates to an action taken by a Court of its own accord, without any request by the parties involved. See KWENEV v. STATE (2022) LPELR-57561(SC); ANGADI V. P.D.P. (2018) 15 NWLR (PT. 1641) 1 (SC). Ordinarily, when a Court raises an issue suo motu, that is, raising an issue on its own motion or raising it as an issue not before the Court or in contemplation of the parties, the parties must be given the opportunity to be heard before a decision is reached on the issue. The reason is to avoid the Court leaving its glorious position of an unbiased arbiter to descend into the arena of conflict. See COLLINS V. DHL INTL (NIG.) LTD. (2022) 2 NWLR (PT. 1813) 87 (SC); STATOIL (NIG.) LTD. V. INDUCON (NIG,) LTD. (2021) 1 NWLR (PT. 1774) 1 (SC). This principle of law is firm because the Court is bound and confined to the issues raised by the parties and anything to the contrary will be a breach of the parties’ right to fair hearing. Fair hearing is a cardinal principle of justice which demands that a party must be heard before the case against him is determined. See ESABUNOR & ANOR V. FAWEYA & ORS (2019) LPELR-46961 (SC), SULE & ORS V. ORISAJIMI (2019) LPELR-47039 (SC); SECTION 36 OF THE 1999 CONSTITUTION (AS AMENDED). Denial of a party’s right to be heard before deciding an issue raised suo motu renders the Court’s judgment null and void and beyond redemption. See IGOIN V. AJOKO (2021) 17 NWLR (PT. 1804) 90 (SC).

However, the principle that a Judge cannot raise an issue suo motu is not sacrosanct. See IDACHABA V. UNIVERSITY OF AGRICULTURE, MAWRDI (2021) 11 NWLR (PT. 1787) 209 (SC). A Judge has the right in our adjectival law to use particular words or phrases, which, in his opinion, are germane to his evaluation of the facts of the case. In so far as he does that in line with the evidence before him, it will be unfair for counsel to castigate such a Judge or accuse him of raising an issue suo motu. See E.F.C.C V. CHIDOLUE (2019) 2 NWLR (PT. 1657) 442.

Herein, the issue purportedly raised suo motu by the learned trial Judge is the grant of joint custody of Golden to the Appellant and the Respondent. In plethora of authorities, it has long been settled that in any matter relating to the custody or guardianship of children, the interest and welfare of the child shall be of first and paramount consideration. See OKIDE V. OKIDE (2020) LPELR-49989 (CA), YANGE V. MUSA (2018) LPELR-45269 (CA). In other words, the child’s interest and welfare is the guiding principle in an action for custody of children.
SECTION 71(1) OF THE MATRIMONIAL CAUSES ACT, 1970 71(1) provides thus:
“In the proceedings with respect to the custody, guardianship, welfare advancement or education of the children of 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 of those matters as it thinks proper.”
Similarly, this Court has in the case of OBAHAYA V, OBAHAYA (2022) LPELR-57141 (PP, 19-20, PARAS. D-C) (CA) Per ONYEMENAM, JCA stated thus:

(1) retention of existing position
(2) personality and character of the parties
(3) sex and age of the children
(4) education
(5) accommodation and material advantages
(6) stability of home life
(7) the parties conduct, etc.
Usually, the retention of existing position appears to be the premier consideration. The Court should constantly bear in mind that it is mostly necessary to keep siblings together and not to split the family up more than necessary. On the factor of accommodation and material advantages, the fact that one party is in a position to give the child a better start in life than another does not give him/her a prior claim. The happiness of a child not his material prospects would be the Court’s main concern. Nevertheless, a person’s financial position cannot be ignored entirely. The amount of time and energy that a parent can devote to the child’s care and upbringing is of utmost importance. This may mean that a mother who can spend the whole of her time with her child will necessarily have an advantage over a father who will be out to work all day no matter the type of alternative arrangements he can make for the child especially if the child is still a minor. Furthermore, the fact that the child has lived for some time with one parent without complain may in itself be a good reason for not moving him. The stability of the child’s home is important. The Court also tries to avoid imposing yet another move on a child who had already been moved about a great deal.
Now, from the record of this appeal, the child in question as at the time the Petitioner filed the Petition in 2017 was 12 years. Then from 2016 to 2020 when this appeal was filed is about 4 years. The said child by the reason aforesaid is not in the least a child requiring special attention of the Respondent, hence, the reason why the trial Court’s grant of joint custody of the child is comprehensible and reasonable. To allow a child access to both parents in a custody matter is in the best interest of the child of a dissolved marriage except where the negative effects of such a grant outweighs the impact of the grant. Herein, it is of most importance that the child in the instant appeal is equally granted access to the Respondent’s home to bond with his brother who happens to be under the custody of the Respondent. With the facts and circumstances of this case, I hold that the overriding interest of the child is to bond with both the Appellant and the Respondent.
An established principle of family law is that custody of a child of a broken marriage is based on grounds other than the guilt, the blameworthiness or innocence of the parties concerned. I reiterate that, it is not awarded for good conduct simplicita, neither is it denied as a form of punishment for the guilty party’s matrimonial offence. As I remarked earlier, the paramount consideration is the welfare of the child or children of the marriage in the surrounding circumstances of each particular case as what is best must necessarily relate to the welfare, progress, advancement as well as the education of the children of the marriage.
Definitely, it will not be in the best interest of a child to grow to know his father or mother as a stranger. Therefore, it is in the best interest of the child in this case to be in the custody of both parents who both happen to have good plans for him. While the best practices require that a trial Court interviews the children of a dissolved marriage to ascertain in whose custody they want to be; failure to observe that practice will not void the decision of a Court on the custody of the children, unless it can be shown that the custody of the children as granted in the particular circumstance drowns the interest of the children. This is more importantly, where as in this case, the children are grown and no longer permanently live at home but merely visit either parent at their convenience.

Flowing from the above, I view what the Appellant alleged as an issue raised suo motu by the trial Court as not an issue, rather, the Court’s exercise of its discretionary power as it is adjoined to do in the award of custody based on credible evidence before it. I hold that the Court’s discretion was exercised judicially and judiciously.

It is not usual for this Court to interfere with the exercise of the discretionary power of the trial Court exercised judicially and judiciously. See NZEKWE V. ANAEKWENEGBU (2019) LPELR-49002 (SC). As the paramountcy of the best interest of a child in a custody matter cannot be over-emphasised, I hold that the trial Court’s exercise of its discretionary power in granting joint custody as opposed to the parties’ prayers for single parenting is good in law; and in the circumstance, is in the overriding interest of the good of the child of the dissolved marriage in issue.

In all, I do not agree with the learned counsel for the Appellant that the Court’s grant of Master Golden’s custody to both parties is an issue which the parties deserved a right of address.

Therefore, I hold that the trial Court did not raise any issue suo motu.

On the Appellant’s contention that the trial Court erred when it granted custody of Golden to both the Appellant and Respondent, when neither of the parties sought for that relief. Correctly, the Respondent who was the Claimant at the trial Court sought for an order of the Court granting exclusive custody of master Golden Uwarukoase Mgbodi, aged twelve (12) years, a child of both the Claimant and the Defendant to her. On his own, the Appellant who was the defendant at the trial Court counter-claimed against the Respondent and prayed for an order of the Court for the exclusive custody of master Golden Uwarukoase Mgbodi, aged twelve (12) years, a child of both the Claimant and the Defendant/counter-claimant.

The power of the Court is strictly constricted by the reliefs sought. There is no power in any Court to grant a relief that was not claimed except such relief is within orders that can be properly construed as consequential order or lesser relief than that sought by a party. It is settled that a Court can only grant the relief sought by a party, and any orders made outside such prayers must be set aside by an appellate Court. See EKPENYONG & ORS V. IYANG EFFIONG NYONG (1975) 2 SC 71, 80 where the Supreme Court stated as follows-
“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 claims.” See also OKUBULE V. OYAGBOLA (1990) 4 NWLR (PT 147) 723, BOLA IGE V. OLUNLOYO (1984) 1 SC 254 RANSOME KUTI V. A.G FEDERATION (1985) 2 NWLR (PT.6) 211, OBAJINMI V. A.G WESTERN NIGERIA (1968) NMLR 98. The trial Court not being a father Christmas is seriously handicapped when it comes to granting a relief not sought. See IYEN V. FRN (2009) LPELR – 8208 (CA).

While the parties sought for exclusive custody of Golden respectively, the Court granted them joint custody of their son. As the Court cannot grant the relief not sought because it cannot grant what has no reference to the claim of a party or what is beyond the claim of a party but, a Court has the power to grant a party part of the relief claimed. The parties sought for exclusive custody of their son Golden respectively but the Court granted each of them part of what was prayed. The Court granted each of them partial custody of their son. The Court in the circumstance of the facts before it refused to grant any of the parties’ full relief.
The law permits the Court to grant the reliefs of a party to the extent of what is proved based on the pleaded facts. In my humble view, irrespective of the fact that the parties sought for exclusive custody of their son respectively, the trial Court based on the evidence before it was right in law to have awarded the Appellant and the Respondent, joint custody. I hold that the trial Court did not award to the Respondent what she did not claim. The trial Court awarded the Respondent part of the relief she claimed.

Before I conclude, I will like to address the issue of whether an affidavit of a Customary Court can override an affidavit of a Federal High Court. According to the Black’s Law Dictionary, 8th edition:
“An affidavit is a voluntary declaration of facts written down and sworn to by the declarant before an officer authorized to administer oaths, such as a notary public.”

Then, Section 109 of the Evidence Act provides:
“Any affidavit sworn before any judge, officer or other person duly authorised to take affidavits in Nigeria may be used in the Court in all cases where affidavits are admissible.”
Therefore, the competence or validity of an affidavit is not dependent on which Court the affidavit was sworn to but is dependent on the competence of the person who administered the oath. Section 10 (1) of the Oaths Act, 2004 provides:
“It shall be lawful for the Chief Justice of Nigeria, a Justice of the Supreme Court, the President and Justices of the Court of Appeal and any judge of the Federal High Court, a notary public, and any commissioner for oaths, to administer any lawful oath or to take any lawful affirmation or affidavit which may be required to be taken or made for the purpose of complying with the requirements of any law for the time being in force throughout Nigeria or elsewhere, except where such procedure is expressly or by necessary implication manifestly excluded by the terms of such law as aforesaid and the presumption shall be against any such exclusion.” By implication, any of the persons authorized by the above section can administer an oath. In other words, what makes a piece of paper an affidavit competent to support the assertion of both an Appellant and a Respondent in a matter, is the attestation or swearing before the commissioner for oaths, I refer to Section 109 of the Evidence Act.

Similarly, Section 111 of the Evidence Act provides that;
“The fact that an affidavit purports to have been sworn in manner hereinbefore prescribed shall be prima facie evidence of the seal or signature, as the case may be, of any such Court, Judge, magistrate or other officer or person therein mentioned, appended or subscribed to any such affidavit and of the authority of such Court, Judge, magistrate or other officer or person to administer oaths.”
A community reading of the foregoing reveals that no affidavit is inferior to the other. What is paramount is for the Court to be satisfied that the document was sworn to before a person duly authorized. From the record of proceedings before this Court, particularly at pages 137 and 253 of the record, the two affidavits in issue were both sworn before a commissioner for Oaths. As a corollary, both affidavits complied with the provisions of the Evidence Act and Oaths Act, thus, are both admissible in evidence. By virtue of Section 111 of the Evidence Act, the Commissioner for oaths’ signature thereon is prima facie evidence that the affidavits were duly sworn before the person authorized to administer oaths. The weight to be attached to any particular affidavit depends on its competence and validity and not on the Court the affidavit was sworn to. Accordingly, I disagree with the learned counsel for the Respondent that an affidavit sworn to at a Federal High Court carries more legal weight than an affidavit sworn to at a Customary Court. Once an affidavit is competent and valid, it has equal effect and weight in law.

Notwithstanding my position on the legal weight of affidavits sworn to at different Courts, from all I had earlier said; the sole issue is overwhelmingly resolved against the Appellant.

Upon the resolution of the sole issue against the Appellant, this appeal is grossly lacking in merit and the same is dismissed. The judgment of the trial Court in SUIT NO: B/654F/2017 delivered by M. N. Asemota, J. on 19th June, 2020, granting joint custody of master Golden Uwariekaose Mgbodi to the Appellant and the Respondent is upheld.
Parties to bear their own cost.

JAMES GAMBO ABUNDAGA, J.C.A.: I read the draft of the Judgment delivered by my learned brother, Uchechukwu Onyenenam, JCA I adopt the reasoning and conclusion reached therein that the appeal lacks merit.

It was in the pleadings and evidence of each of the parties that they each prayed for sole custody of the child, Master Golden Uwariekaose. The Court however granted them joint custody, which is the grouse of the appellant on the ground that the trial Court took the issue of joint custody suo moto, and made an order on it which was never prayed for. This contention is not tenable. In granting joint custody, the Court considered the paramount interest of the child which a Court is wont to do in matrimonial causes. See Section 71(1) of the Matrimonial Causes Act, 1990.

This reason is enough to sway the determination of this appeal in favour of the respondent. Therefore, I also dismiss this appeal. I abide by the consequential orders made in the leading Judgment.

ADEMOLA SAMUEL BOLA, J.C.A.: I am privileged to have read through in draft of the judgment of this Court delivered by my learned brother, UCHECHUKWU ONYEMENAM, JCA. I am in agreement with his reasoning and conclusion

In Odusote V. Odusote (2011) LPELR – 9056(CA), this Court Per Nwodo JCA (of blessed memory) had this to say following the decision of the apex Court in William V. William (1987) 2 NWLR (Pt. 544)66.
“Furthermore, in proceedings relating to custody of a child, what should be the paramount consideration of the Court is the welfare of the child. This is why the Court enjoys discretionary powers under Section 71(1) of the Matrimonial Causes Act in matters relating to award of custody. This discretion must be exercised in accordance with the peculiar circumstances of each case. In considering the welfare of the child the Court looks at the care of the child, his moral, physical and mental state.”

It is against this background that I adopt the decision of my Lord as encapsulated in the leading judgment to the effect that the grant of the joint custody of the child of the marriage to his parents was not an issue but an exercise of the discretionary power of the trial Court which power was exercised judicially and judiciously for the betterment welfare and overriding interest of the child of the marriage.

This appeal lacks merit. It is accordingly dismissed and the decision of the lower Court affirmed. I abide by the order made.