MR. DELE ODUSOTE v. DR. (MRS) TEMITAYO ODUSOTE
(2011)LCN/4660(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 28th day of June, 2011
CA/A/95/2008
RATIO
GROUND OF APPEAL: EFFECT OF THE ISSUES FORMULATED OUTSIDE GROUNDS OF AN APPEAL
…the law is trite that issues formulated outside the grounds of an appeal go to no issue and liable to be struck out for being incompetent along with any argument thereon. See: REGISTERED TRUSTEES OF APOSTOLIC FAITH MISSION v. JAMES (1987) 7 SCNJ. 167. OGBUANYINYA v. OKUDO (No.2) (1990) 21 NSCC (3) 44. OKOYE v. N.C.E. & F. CO. LTD. (1991) 6 R (199) 501 MARK v. EKE (2004) 1 SC (II) 1. PER MOHAMMED LAWAL GARBA, J.C.A
SHALL: WHAT THE USE OF THE WORD “SHALL” IMPLIES
The use of the word “shall” ordinarily means that the provisions are mandatory because the word is used to express a command or directive which does not admit of a discretion. PER MOHAMMED LAWAL GARBA, J.C.A
EVALUATION OF EVIDENCE: WHETHER THE EVALUATION OF EVIDENCE PLACED BY THE PARTIES BEFORE A COURT IS AN EXERCISE OF A DISCRETION BY THE COURT
Evaluation of evidence placed by the parties before a court is not an exercise of a discretion by the court but it is in the discharge of its primary duty or function in the determination of cases that come before it. Evaluation or assessment of the evidence in a case by a court is a legal and binding duty on the court in judicial adjudication and not a discretion. A court has no option or-choice in the determination of cases or disputes between parties but to evaluate the evidence adduced by the parties in support of their respective positions in accordance with established principles and guidelines in order to arrive at its decision/s in the case or dispute. PER MOHAMMED LAWAL GARBA, J.C.A
INTERFERENCE WITH THE EXERCISE OF DISCRETION BY A TRIAL COURT: GROUNDS UPON WHICH AN APPELLATE COURT WILL INTERFERE WITH THE EXERCISE OF DISCRETION MADE BY A TRIAL COURT ON APPEAL
The general position of law is that this Court does not ordinarily interfere with the exercise by a trial lower court, of a judicial discretion in the course of the trial of case except in some defined and recognised situations. The grounds on which an appellate court will interfere with the exercise of discretion by a trial court on appeal include:- (a) where the trial court acted arbitrarily or illegally, or (b) where the trial court had taken into account extraneous or irrelevant matters or factors, or (c ) where the trial court had failed or omitted to take into consideration or account relevant matters or factors, (d) where the trial court misconceived or misapplied established and recognised principles of law to the facts before it. See: EASTERN BREWERIES PLC. v. INUEN (2000) 3 NWLR (650) 662. UKWU v. BUNGE (1997) 8 NWLR (518) 527. C.G.C. (MG.) LTD. v. BABA (2004) 10 NWLR (882) 658. PER MOHAMMED LAWAL GARBA, J.C.A
EVALUATION OF EVIDENCE: RECOGNISED CONSIDERATIONS THAT WOULD GUIDE THE TRIAL COURT IN EVALUATING THE EVIDENCE PLACED BY THE PARTIES BEFORE IT
As a foundation, the law is now firmly settled in our judicial practice that a trial court has a primary duty, after hearing evidence from witnesses and watching their physical demeanour, to assess or evaluate the evidence by placing the material and relevant parts of it having regard to the pleadings, on an imaginary scale and weighing to find out to which side of the party it tilts. The court must show on its record how and why it came to its findings and final determination of the issue before it. In the process of the evaluation or assessment of the evidence, the court would be guided by recognised considerations such as: (i) admissibility of the evidence, (ii) relevancy of the evidence (iii) credibility (iv) probability of the evidence (v) conclusiveness of the evidence. PER MOHAMMED LAWAL GARBA, J.C.A
MATRIMONIAL CAUSES: CIRCUMSTANCE UNDER WHICH CUSTODY OF THE CHILDREN OF A DISSOLVED OR BROKEN DOWN MARRIAGE WILL NOT BE IN FAVOUR OF THE MOTHER OF THE CHILDREN
..in custody proceedings unless it is abundantly clear that the mother suffers from moral conduct, infectious diseases, insanity, lack of reasonable means or is cruel to the children, etc., children of tender age, male or female are ordinarily better off in terms of welfare and upbringing, with the mother. Of course, there may be few exceptions that are far apart where the father may be better than some mothers in the upbringing of the children. There is always that rebuttable presumption in favour of the mother in the consideration of the custody of the children of a dissolved or broken down marriage. See ODOGWU v. ODOGWU (supra). PER MOHAMMED LAWAL GARBA, J.C.A
MATRIMONIAL CAUSES: PRINCIPLES GUIDING ASSESSMENT OF MAINTENANCE IN MATRIMONIAL PROCEEDINGS
In the case of HAYES v. HAYES (2000) 3 NWLR (648) 276 at 294, the principles guiding the assessment of maintenance in matrimonial proceedings were said to include:- (a) the stations in life of the parties and their life styles; (b) their respective means; (c ) the conduct of the parties; (d) existence or non existence of a child/children of the marriage. PER MOHAMMED LAWAL GARBA, J.C.A
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria
REGINA OBIAGELI NWODO Justice of The Court of Appeal of Nigeria
Between
MR. DELE ODUSOTE Appellant(s)
AND
DR. (MRS) TEMITAYO ODUSOTE Respondent(s)
MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment) The Appellant and Respondent in this appeal were husband and wife vide the marriage contracted in 1992 at a marriage registry in New Jersey, the United states of America. The union was blessed with three (3) children, but later had problems which resulted in the Respondent filing a petition against the Appellant at the F.C.T. High Court on the 8/10/04 for the dissolution of the marriage.
After the filing of answer and a cross petition by the Appellant also praying for the dissolution of the marriage, the Respondent amended and further amended her petition in which she sought for reliefs which included decree for dissolution of the marriage and order granting her custody of the children of the marriage.
Each of the Appellant and Respondent testified in support of their respective position as the only witnesses in the trial at the and of which the F.C.T. High Court dissolved the marriage and made order granting custody of the children to the Respondent in the judgment delivered on the 16/11/06.
The Appellant felt aggrieved and dissatisfied with the judgment and so filed an appeal against it vide a notice of appeal dated and filed on the 8/1/07 which appears at pages 312-313 of the record of appeal.
Because of their brevity, I can afford to set out the 6 grounds contained on the notice of appeal, without the particulars. They are thus:-
“(i) The decision of the learned trial judge to award the custody of the three children of the marriage to the Petitioner was not proper exercise of judicial discretion having regards to all the circumstances of the case.
(ii) The decision of the learned trial judge in the award of maintenance was arbitrary and the amount awarded excessive.
(iii) The decision is against the weight of evidence.
(iv) The learned trial judge erred in law when he relied and used the pleadings in the amended petition filed on the 15th day of March 2006.
(v) The learned trial judge erred in low when he relied and used the pleadings in the Further amended petition filed on the 2nd day of May 2006.
(vi) The learned trial judge erred in low when he entertained the Petitioner’s petition and its amended copies when same were not endorsed with the petitioners verifying Affidavit as made mandatory by order V Rule 10(i) of Matrimonial Causes Rules CAP 220 LFN.”
Learned Counsel for the parties to the appeal, in line with the rules of the court had filed briefs of argument which were adopted and relied on by them at the oral hearing of the appeal on the 18/5/11. The Appellant’s brief was filed on the 5/8/08 and adopted by A.O. Adegoroye, Esq. Mr. C.f. Okoye adopted the Respondent’s brief filed on 5/9/08.
At paragraph 2.1-2.3 of the Appellant’s unpaged brief, the following issues were set out for determination in the appeal.
“2.1 Whether or not the Petition upon which the court delivered its judgment is competent in the face order v Rule 10(i) of the Matrimonial causes Rule Cop 220 Laws of the Federation 1990.
2.2 whether or not the custody of the children of the marriage and the quantum of maintenance which the learned trial judge awarded in favour of the Respondent was judicious and a proper exercise of his discretion as required by law.
2.3 Whether the judgment of the trial court is vague because it made no specific directive as to the amount to be paid by Appellant and the time when such responsibility for the education, upkeep, maintenance, medical etc. of any of the children the moment they gain entry into the secondary school shall cease.”
As can easily be noticed, none of the above issues has been indicated to have been distilled from any of the grounds of appeal contained on the Appellant’s notice of appeal. Diligent practice of brief writing requires that a Counsel should clearly indicate from which of the grounds of appeal any issue formulated for decision in the appeal was distilled. Because only issues which come or enure from the grounds of an appeal are competent and live for determination in the appeal, learned Counsel have a duty to clearly state or indicate the grounds from which they formulate issues in their brief of argument and not leave it to speculation.
The learned Counsel for the Respondent has met the requirement of diligence in the issues which he formulated for determination at pages 5-6 of the Respondent’s brief. The issues are as follows:-
“2.1 Whether the complaint or consequences of breach of Order V rule 10(i) Matrimonial Causes Rules Cap 220 Laws of the Federation 1990 is available against the Respondent in the circumstances of this case. (relates to ground vi of the grounds of appeal).
2.2 whether the learned trial judge rightly granted custody of the children of the marriage and awarded maintenance of the children in the circumstances of this case. [relates to grounds i and ii of the grounds of appeal]
2.3 Whether the judgment of the trial court is against the weight of evidence adduced at the trial (relates to ground iii of the ground of appeal).”
The issues 2.1 and 2.2 formulated by both learned Counsel are substantially the same. However a calm reading of the 6 grounds of appeal set out above, would show that the Appellant’s issue 2.3 is not and cannot be said to have been distilled from any of them. As rightly submitted by the learned Counsel for the Respondent in the brief on the issue, the law is trite that issues formulated outside the grounds of an appeal go to no issue and liable to be struck out for being incompetent along with any argument thereon. See: REGISTERED TRUSTEES OF APOSTOLIC FAITH MISSION v. JAMES (1987) 7 SCNJ. 167.
OGBUANYINYA v. OKUDO (No.2) (1990) 21 NSCC (3) 44.
OKOYE v. N.C.E. & F. CO. LTD. (1991) 6 R (199) 501.
MARK v. EKE (2004) 1 SC (II) 1. The Appellant’s issue 2.3 did not arise from and is not related to any of the grounds of appeal contained in the Appellant’s notice of appeal and is therefore an incompetent issue in the appeal. In consequence it is liable to be and is hereby struck out accordingly.
Since the Respondent’s Counsel is allowed by practice to formulate issues from the grounds of the Appellant’s notice of appeal, the issue 2.3 submitted by him for determination and which clearly enures from ground iii, is a competent issue for determination in the appeal.
I would for that reason consider the submissions on the said issue in addition to the issues 2.1 and 2.2 formulated by both learned Counsel. The learned Counsel for the Appellant had submitted on his issue
2.1 that the Respondent’s petition did not meet the provisions of Order V, Rule 10(1) of the Matrimonial Causes Rules which he set out in the brief. He said that the Respondent’s affidavit verifying the facts of her petition was on a separate document contrary to the requirement that the affidavit should be endorsed on the petition, citing MADUKOLU v. NKEMDILIM (1962) 1 ALL NLR 587. According to him, the words “shall” and “on” used in Order V Rule 10(1) make it a condition precedent that the affidavit be endorsed on the petition before it could be heard. The cases of ABBAH v. ABBAH 3 ECSLR 214 at 216-7 and ADIBUAH v. ADIBUAH 1 ECSLR. 127 at 133-4 were referred to where learned Counsel said it was held that unless the verifying affidavit follows immediately at the end of the Petition, the rule has not been complied with. Reliance was also placed on the cases of; UNEGBU v. UNEGBU (2004) 11 NWLR (884) 332 at 354-5, OYEDU v. OYEDU (1972) 2 ECSLR. 730 at 731 and OMODON v. OMODON (1966) NMLR 288 in which it was said to have been held that unless the verifying affidavit is endorsed on the petition and not a separate document, the petition was incompetent.
We were urged “to grant this appeal and set aside the judgment as incompetent.”
On his part, the learned Counsel for the Respondent had submitted that the verifying affidavit of the facts of the Respondent’s petition was endorsed on the further amended petition, contrary to the submission by the Appellant’s Counsel. He pointed out that the verifying affidavit is endorsed as pages 7 and 8 of the further amended petition of the Respondent in compliance with the Evidence Act and the Matrimonial Causes Act.
In the alternative, learned Counsel argued that looking at the facts and circumstances of the case, the breach of Order V, Rule 10(l) was never an issue before the F.C.T. High Court and is a fresh issue raised by the Appellant at this stage. It was the submission by Counsel that leave of court is mandatory before the issue can be raised, relying on the case of NDIC v. AKA HALL & SONS CO. LTD. (2004) 6 NWLR (869) 265 at 266-7. He said since leave was not obtained by the Appellant before the issue was raised, it is incompetent and ought to be struck out. In addition, it was contended that the question of non-compliance with Order V, Rule 10(1) relates to matters of practice and procedure which ought to have been raised at the trial court. For not being raised at the trial, learned Counsel submitted that Appellant is deemed to have waived the right to question it now having taken adequate steps in the petition and attained advantages thereof. ATANDA v. AJANI (1989) 3 NWLR (III) 511 at 545 and NDAYAKO v. DANTORO (2004) 13 NWLR (889) 187 at 219 were cited on the submissions and it was said that the Appellant actively participated at the trial, suffered no injustice and never complained of the irregularity of the verifying affidavit or the petition since he had conceded to the dissolution of the marriage.
In further argument, learned Counsel said the law is trite that a party cannot take advantage of irregularity which he adopted or acquiesced in, on the authority of ITA v. EKPEYONG (2001) 1 NWLR (695) 587 at 613.
The case of UNEGBU v. UNEGBU (supra) was distinguished by learned Counsel and he urged us to resolve the issue against the Appellant.
I would pause here to decide this issue.
The provisions of Order V Rule 10(1) of the Matrimonial Causes Rules which were said to have been contravened by the Respondent’s petition are as follows:-
“A Petitioner shall, by an affidavit written on his petition and sworn to before his petition is filed-
(a) Verify the facts stated in his petition of which he has personal knowledge, and
(b) Depose as to his belief in the truth of every other fact stated in his Petition.”
As a matter of fact, these provisions are very simple, unambiguous and clear. They require that a petitioner should swear to an affidavit on his petition before the petition is filed to verify that all the facts set out in his petition of which he has personal knowledge and then as to his belief in the truth of every other fact in the petition.
By the established and recognised principles of interpretation, the provisions are to be ascribed the plain and ordinary meaning in identifying or determination of their object or intention. The use of the word “shall” ordinarily means that the provisions are mandatory because the word is used to express a command or directive which does not admit of a discretion. As a result, a petitioner has no option or choice in complying with the provisions in respect of his petition, but rather has a duty to do so. Compliance with the provisions therefore is a condition precedent to the filing of the petition in the sense that the affidavit required in the provisions must be sworn to by a petitioner before the petition is filed.
The petition must as a requirement of the provisions, contain the affidavit sworn to by the petitioner before it is or can be property filed.
This is the position established and affirmed by judicial authorities including the ones cited above by the learned Counsel for the Appellant on the issue. However because the affidavit is required to be sworn to before the petition is filed to verify the facts on the petition, the provisions clearly contemplate that the affidavit would accompany the petition by being annexed to and forming part of the processes of the petition to be filed. The provisions do not certainly require that the affidavit shall be endorsed on the petition itself but that it should be sworn on the facts that are set out in the petition. The primary object of the provisions is that a petitioner should make a solemn oath that all the facts set out in the petition are to his knowledge and belief, true and correct and as long as the affidavit was sworn to before the petition was filed and it accompanied the petition, the provisions would have been substantially complied with.
I have noted that upon an application by the Respondent the F.C.T. High Court had on the 9/10/06 made the following orders at page 284 of the record of appeal:-
“In view of the understanding of the learned Counsel for the Respondent, the application for the amendment of the petitioner’s petition is hereby granted
The petitioner’s further amended petition for decree of dissolution of marriage already filed and served on the Respondent is hereby deemed as properly filed and settled.”
The eight (8) pages further amended petition deemed by the F.C.T. High court in the above extract of proceedings of the 9/10/06 is contained at pages 144-151 of the record of appeal. As rightly pointed out by the learned counsel for the Respondent the verifying affidavit of the Respondent was at pages 7-8 of the further amended petition which come immediately after the page on which the addresses for service of the petition were provided. The affidavit is on the petition which precedes it on pages 1-6 thereof and so manifestly satisfies the requirements of order v, Rule 10(1) above. The affidavit is not in a separate document or outside the petition itself, but forms part of it. For that reason the submission by the learned counsel for the Appellant are grossly misconceived and I have no difficulty in finding that the Respondent’s further amended petition has complied with the provisions of Order V, Rule 10(1). In any case, Order XXI of the Rules has made provisions on the effect of non compliance therewith. Rules 2 and 3 have provided as follows:-
“2. Subject to these Rules, non-compliance with these Rules, or with a rule of practice and procedure of o court applicable under the Act to proceedings, shall not render proceedings void unless the court so directs, but the proceedings may be set aside, either wholly or in part as irregular, or may be amended or otherwise dealt with in such manner and upon such terms as the court thinks, fit.
3. Subject to the Act and to these Rules –
(a) a court may at any time, upon such terms as the court thinks fit, relieve a party from the consequences of non-compliance with these Rules, with of practice and procedure of the court applicable to the proceedings or with on order made by the court;
(b) a court may, upon such terms as the court thinks fit, dispense with the need for comp- liance by o party with any provision of these Rules.”
The objects of these provisions are that a non compliance with any provision of the Rules shall not on its own render proceedings void and that a court had the discretion to relieve a party from the consequence of any non compliance or dispense with the need for compliance by a party with any provision of the Rules. Their overall aim is to ensure that substantial and practical justice is done in the cases presented by the parties devoid of technicalities that only relate to the form but not the substance of the case.
The learned Counsel for Appellant did not suggest that even if the verifying affidavit of the Respondent’s petition was sworn to on a separate document, it had caused him any disadvantage or prejudiced his right to answer to the petition. As borne out by the record of the appeal, the Appellant not only answered the Respondent’s petition but also cross-petitioned for the dissolution of the marriage, which was the primary relief sought in the petition. So the challenge by the learned Counsel for the Appellant on the non compliance with the provisions of Order V, Rule 10(1) is only as to the form and not the substance of the petition by the Respondent. The Appellant as evident in the record of appeal, even after becoming aware of the non compliance did not on that ground object to the petition but rather took steps and filed his answer thereto and the cross petition, thereby ignoring or waiving it as being inconsequential. Even if there was the non compliance alleged by the learned Counsel for the Appellant, it has not been shown to have occasioned any miscarriage of justice on the part of the Appellant and so did not render the petition or proceeding therein void. It is condonable and can be overlooked by a court as provided in Rule 3(a) and (b) above.
The issue for that reason, is resolved in favour of the Respondent and against the Appellant.
The next issue was whether the F.C.T. High Court judiciously exercised its discretion in the order granting custody of the children to the Respondent and the amount for maintenance to be paid by the Appellant.
It was submitted by the learned Counsel for the Appellant that the orders for custody of the children and the amount the Appellant was to pay for maintenance were perverse because according to him, the Appellant had demonstrated his unassailed ability to maintain and give good life and education to the children. Pages 219-220 and 252-3 of the record of appeal were referred to by learned Counsel who submitted further that the Appellant had particularized the arrangement he had made for the children if granted custody, which were not cosmetic and that based on the evidence before the F.C.T. High Court, he was/is in a better position to take care of them. He said therefore that the High Court was wrong in giving the Respondent priority in the custody of the children since it was held in the case of RE B (AN INFANT) (1962) 1 ALL ER. 872, that there is no settled rule that a child of tender years should remain in the custody of the mother. Furthermore, that bearing in mind the provisions of Section 71(1) of the Matrimonial Causes Act, the Appellant should have been given custody where the children would grow where their grandparents and other members of their extended family are. The cases of OYELOWO v. OYELOWO (1968) 12 CA (Pt. II) 1 at 9 and IN RE (INFANTS) (1971) 2 ALL ER. 744 were cited as support for the submission.
It was also submitted by learned Counsel that the evidence of the Respondent on maintenance was at variance with her pleadings, not on pleaded facts and therefore goes to no issue, relying on, as authorities, the cases of: AKINBONI o. AKINBONI (2002) 5 NWLR (761) 564 at 579 and NZELU v. NZELU (1997) 3 NLR (494) 472 at 487-9. In the alternative, it was contended that the High Court did not properly evaluate by not applying the guiding principles and factors in the evaluation and that we were urged to set aside the award on maintenance. The cases of AKINBONI v. AKINBONI (supru) and NEGBENEBOR v. NEGBENEBOR (1971) 1 ALL NLR 210 at 215-6 were referred to.
For the Respondent, the learned Counsel relying on the same Section 71 of the Matrimonial Causes Act, Cap 220, Laws of the Federation of Nigeria, 1990, (to be called Cap 220 after now) and Bromley’s Family Law, 6th Edition, 1981 at pages 294-8, had submitted that the High Court had considered the paramount importance of the interest of the children in determining who was to be granted custody in the case. Also citing the case of ODOGWU v. ODOGWU (1992) 2 NWLR (225) 539 at 560, he submitted further that from the evidence before the High Court, the children are of tender ages and so the discretion was properly exercised by, the court in granting custody to the Respondent. In further argument, learned Counsel said the law is that an appellate court does not have inherent jurisdiction to set aside the exercise of a discretion by a trial court unless it is proved to be capricious or based on extraneous factors and did not follow accepted principles. ODOGWU v. ODOGWU (supra) at gage 558 was relied on and it was argued that the Appellant had not shown that the High Court did not exercise its discretion properly. According to learned Counsel, the High Court had properly evaluated the evidence before it and that evidence of the Respondent was in line with the facts pleaded in her petition and so clearly supported, her position. Section 70 of Cap 220 was referred to and it was submitted that the High Court was empowered to make the order for maintenance and that there was evidence that the Appellant can afford the amount ordered by the High Court as maintenance.
We were prayed by learned Counsel to resolve the issue against the Appellant.
It is clear from the submissions by the learned Counsel for the Appellant on the issue that his complaint is against the evaluation of evidence adduced by the parties on the issue of custody and maintenance, and not against the exercise of discretion by the trial court.
Evaluation of evidence placed by the parties before a court is not an exercise of a discretion by the court but it is in the discharge of its primary duty or function in the determination of cases that come before it. Evaluation or assessment of the evidence in a case by a court is a legal and binding duty on the court in judicial adjudication and not a discretion. A court has no option or-choice in the determination of cases or disputes between parties but to evaluate the evidence adduced by the parties in support of their respective positions in accordance with established principles and guidelines in order to arrive at its decision/s in the case or dispute.
So even though the issue as couched by the learned Counsel for the Appellant appears to question the exercise of discretion by the F.C.T. High Court, what was argued in the brief under it is in fact a complaint on the evaluation of evidence by that court.
I would briefly treat when an appellate court would intervene in an appeal and interfere with the exercise by a trial court of its discretion in the course of a trial.
By way of restatement, the general position of law is that this Court does not ordinarily interfere with the exercise by a trial lower court, of a judicial discretion in the course of the trial of case except in some defined and recognised situations. The grounds on which an appellate court will interfere with the exercise of discretion by a trial court on appeal include:-
(a) where the trial court acted arbitrarily or illegally, or
(b) where the trial court had taken into account extraneous or irrelevant matters or factors, or
(c ) where the trial court had failed or omitted to take into consideration or account relevant matters or factors,
(d) where the trial court misconceived or misapplied established and recognised principles of law to the facts before it. See: EASTERN BREWERIES PLC. v. INUEN (2000) 3 NWLR (650) 662.
UKWU v. BUNGE (1997) 8 NWLR (518) 527. C.G.C. (MG.) LTD. v. BABA (2004) 10 NWLR (882) 658.
In an appeal where the exercise of a trial court’s discretion is challenged by an Appellant, he has the burden of showing from the record of the appeal that any one or more of the above grounds exist in order to justify interference by the appellate court.
Since the Appellant’s real complaint in the issue is not on the exercise of any discretion by the F.C.T. High Court, it is unnecessary to say more than the above general position of the law on it.
I now turn to the complaint on the evaluation or assessment of the evidence placed before it on custody and maintenance.
As a foundation, the law is now firmly settled in our judicial practice that a trial court has a primary duty, after hearing evidence from witnesses and watching their physical demeanour, to assess or evaluate the evidence by placing the material and relevant parts of it having regard to the pleadings, on an imaginary scale and weighing to find out to which side of the party it tilts. The court must show on its record how and why it came to its findings and final determination of the issue before it. In the process of the evaluation or assessment of the evidence, the court would be guided by recognised considerations such as:
(i) admissibility of the evidence,
(ii) relevancy of the evidence
(iii) credibility
(iv) probability of the evidence
(v) conclusiveness of the evidence.
After taking into account or consideration of the above factors, the court would then apply the applicable law to the situation presented in the case so as to decide one way or the other. See: MOGAJI V. ODOFIN (19780 4 SC, 91 WHYTE V. JACK (1996) 2 NWLR (431) 407, ADELEKE V. IYANDA (2001) 13 NWLR (729) 1, OKOLI V. OKOLI (2003) 8 NWLR (823) 565.
Like in the case of an exercise of a judicial discretion by a trial court, an appellate court would not lightly or ordinarily interfere with the evaluation of evidence by a trial which had the vintage and therefore advantageous position of seeing and hearing the witnesses give such evidence. The situations in which this Court would interfere in the evaluation of evidence by a trial court are limited. They include:-
(1) where the trial court failed or omitted to take into account the relevant or material factors listed above in its evaluation of the evidence;
(2) where it failed or omitted to consider unchallenged, credible and vital piece/s of evidence;
(3) where irrelevant or inadmissible evidence was considered and relied on;
(4) where the trial court drew wrong inferences from the totality of the evidence. See: LOPEZ v. LOPEZ (1924) 5 NLR. 50. WOLUCHEM v. GUDI (1981) 5 SC.291, BABATUNDE v. MODEL IND. (NIG.) LTD. (2004) 9 NWLR (879) 614.
Thus, where a trial court has carried out a proper assessment or evaluation of the evidence adduced before it, it is not the duty of this Court to re-evaluate or re-assess or evaluate and assess again, such evidence on the ground only that this Court would have reached a different conclusion on the same or even similar facts. What is important is that there was evidence before the trial court from which it drew correct inferences based on proved facts and which can reasonably support its conclusion/s. See:
OMOREGIE v. IDUGIEMWANYE (1985) 2 NWLR (5) 41, ONIFADE V. OLAYOWOLA (1990) 7 NWLR (161) 130, MAUNE V. ABDUL (2001) 4 NWLR (702) 95.
With the above principles of law restated, I would proceed to consider the complaint by the Appellant on the evaluation by the High Court of the evidence on custody of the children. Now both learned Counsel for the parties €re right when they stated that in custody proceedings the interest of the children in question is the paramount consideration in the determination of who among the parents should be granted custody. In that regard, Section 71(1) of Cap 220 has made provisions as follows:-
“71.(1) In proceedings with respect to the custody, guardianship, welfare, advancement or education of 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 those matters as sit thinks proper.”
These provisions plainly had stated that the court in determining the issue of custody, should regard the interests of the children as the paramount consideration. Interests of the children would include their welfare, education, security and overall well being and development.
Therefore the welfare of the children is the prime consideration in the determination of who should be granted custody. In this regard, this Court in the case of TABANSI v. TABANSI (2009) 12 NWLR (1155) 415 at 432 had stated that:-
“Except the conduct of a wife is morally reprehensible, it is better in on estranged marriage for the child of the marriage, moreso if that child is a girl and of a tender age, to be left in the care and custody of the wife.” Although there is no rule of law which says that a female child or a child of tender age should remain in the custody of the mother when a marriage is dissolved, however it cannot also be seriously disputed sentiments apart, that children who are female and in their growing or formative years are better cared for and looked after by the mother except the contrary is shown by credible evidence. It is generally presumed that such children would be happier and more at peace because of the closeness and intimacy, which breed affection and familiarity with the mother, who most of the times, was there for them.
So in custody proceedings unless it is abundantly clear that the mother suffers from moral conduct, infectious diseases, insanity, lack of reasonable means or is cruel to the children, etc., children of tender age, male or female are ordinarily better off in terms of welfare and upbringing, with the mother. Of course, there may be few exceptions that are far apart where the father may be better than some mothers in the upbringing of the children. There is always that rebuttable presumption in favour of the mother in the consideration of the custody of the children of a dissolved or broken down marriage. See ODOGWU v. ODOGWU (supra).
It may be recalled that the complaint of the Appellant here is that the trial High Court’s decision was perverse because it gave priority or “paramouncy” to the right of the Respondent to the custody of the children since he has demonstrated his ability to maintain and give good life and education to them. According to the Appellant from the evidence adduced by him and the Respondent, he is in a better position to take care of the children and that they would be better off with him.
The brief of the evidence given by the Appellant is that he is managing Director of Odusote Bookstore with a monthly salary of N28,000.00. That he paid school fees and took care of the children at Ibadan and that the Respondent had a maid and never looked for the family.
For the Respondent the evidence given was that the Appellant was a violent person who had beaten her in the presence of other people including the children. That she works at Abuja on annual salary of N3,600, 000.00 and that she takes care of the children and they are happy staying with her.
In the judgment appealed against, the F.C.T. High Court had while dealing with the issue of custody said inter alia that:-
“So, in deciding what order will be in the best interest of the children of the marriage, a number of factors must be borne in mind They ore; (7) retention of existing position, (2) personality and character of the claimant, (3) sex and age of the children, (4) education, (5) accommodation and material advantages, (6) stability of home life, (z) the parties’ conduct, etc. See Bromley’s Family Law, 6th Edition (1981) p. 294-298.
With regard to retention of existing position, it should be noted that in divorce cases, the retention of existing position appears to be the paramount consideration. See Re W (1965) 3 ALL ER 231 at 249.
In relation to the personality and character of the claimants, the court must always consider who amongst them is likely to be better parent See Re F (1969) 2 Ch 238.
As regards sex and age of the said children, it is instructive to note that normally the mother should hove the core and control of young or sickly children particularly, little girls. See Re F (1969) 2 Ch 238. It should also be borne in mind that it is generally desirable to keep brothers and
sisters together and not to split the family up more than is necessary.
On the factor of accommodation and material advantages, it is pertinent to state that the fact that one claimant to custody or care and control is in a position to give the children a better start in life than another does not give him a prior claim. It is the happiness of the child not its material prospects with which the court is concerned. However, a party’s financial position cannot be ignored entirely. The amount of time and energy that a parent can devote to the children’s care and upbringing is of considerable importance.
This may mean that a mother who can spend the whole of her time with her children will necessarily have an advantage over a father who will be out to work all day, whatever alternative arrangements he con make to hove them looked after. See Re K (1977) 1 ALL ER 647.
Furthermore, the fact that the child has lived for sometime with one parent may in itself be a good reason for not moving him. It is important that he should hove as stable a home life as possible. The court also tries to avoid imposing yet another move on o child who has already been moved about a great deal.
The said three children of the marriage in this proceedings were all born on the In February 1995, 8th April, 1997 and 21st March, 2003 respectively. They are now between the ages of 11 and 13 years. To me they are still tender and need the disciplinary measures of an educated mother like the Petitioner to grow. They have been living with the Petitioner since October, 2004, barely two years now. To disturb the bond between mother and children which they had developed while living with their mother at this stage may be very devastating to them. They are now used to their routine with the Petitioner, who also has a maid that assists in taking care of them. The Respondent on the other hand did not paint a favourable picture that could sways the mind of this court in granting custody to him. As he said, he lives alone right now without any maid or assistant. He was not even prepared to tell the court the plans he had for the children or how much he was prepared to spend on them.
The summation of all these factors point irresistibly to the fact that it is not the intention of this court to disrupt the stability of home life these children hove had in the past two years. The Petitioner appears to me to be in a better position to devote her time as their mother to their care and upbringing since the Respondent is otherwise engaged from Monday to Sunday. Granting custody to the Respondent may have detrimental effect on the children since there is every possibility that they may often be left on their own without any adult around until such time their father would come back from work in the evening.”
From the above extract, the High Court had comprehensively considered all the relevant factors as they relate to the facts disclosed in the case before it and correctly assessed the evidence adduced by both the Appellant and Respondent in line with the requirements of Section 71(l) of Cap 220 in deciding the issue of custody of the children. There is no evidence whatsoever from the Appellant that the 1st Respondent was cruel to the children or had exhibited any immoral conduct which might affect the upbringing of the young children who have been living with her since the separation or movement to Abuja.
In addition, there is no evidence that the Appellant had visited or even cared for the children since then. In the light of the evidence before it, the High Court’s decision granting the custody of the children to the Respondent is on firm terrain and is unassailable because it is solidly supported by the Respondent’s case and evidence.
Related to the issue of custody is that of maintenance on which the Appellant’s Counsel said the Respondent did not support with admissible evidence or that the High Court did not properly evaluate the evidence. Learned Counsel had argued that the Respondent’s evidence is inadmissible because it is at variance with her pleadings although he did not demonstrate from the record of the appeal which pleading was not supported by the evidence given by her. I have however noted that the Respondent had in paragraphs 12.3 and 12.4 pleaded that the Respondent provide maintenance of the children and in the reliefs sought, claimed 50% costs of the maintenance of the children to be borne by the Appellant. Specific claim of N30,000 in respect of each of the three (3) children was made which was calculated as N90,000 monthly. In her evidence though she had stated that she would appreciate the Appellant’s financial contribution in the maintenance of the children in general terms, the evidence of the Respondent at page 189, lines 6 and 7 was that she adopted her claim on maintenance as contained in her petition. Can this evidence which was not in any way challenged, be said to be outside or contrary to the pleadings of the Respondent as argued by the learned Counsel for the Appellant? On the contrary, the evidence is in line or even a direct repetition of the pleadings on maintenance and cannot be said to be at variance with the pleadings.
Furthermore, it was also argued for the Appellant that the F.C.T. High Court did not properly evaluate the evidence or apply the guiding principles and factors. Also that that court did not consider the earning capacity of the parties. Even though the learned Counsel for the Appellant did specifically point out the evidence on maintenance which the High Court did not allegedly evaluate properly or the principles or factors it failed to consider, the High Court had in its judgment stated, while dealing with the issue of maintenance, thus:-
“On issue No. 3, it is trite law that in making a maintenance order as it thinks fit, the court shall have regard to the means, earning capacity and the conduct of the parties to the marriage and ail other relevant circumstances.” [See page 303 of the record of appeal]. By the above statement, the High Court was restating the provisions of Section 70(1) of Cap 220 which provides that:- o70.(I) Subject to this section, the court may, in proceedings with respect to the maintenance of a party to a marriage, or of children of the marriage, other than proceedings for an order for maintenance pending the disposal of proceedings, make such order as it thinks proper having regard to the means, earning capacity und conduct of the parties to the marriage and all other relevant circumstances.”
The High Court was therefore conscious of and had adverted to the requirements of the law in dealing with the issue of maintenance. In the later part of its judgment after the above statement, the High Court proceeded to consider the means and earning capacity of the parties as borne out at page 303, lines 6 to page 304,lines 1 and 2 of the record of appeal. That court had earlier considered the conduct of the parties while dealing with the issues of the dissolution of the marriage and the custody of the children at page 301, lines 1-6, and page 302, lines 29-37 of the record of appeal respectively. In the above circumstances, the record of the appeal clearly shows that the High Court had taken into account and considered the means, the earning capacity and the conduct of the parties in deciding the issue of maintenance. These are the relevant and material principles or factors which the law requires that a court should have regard to in maintenance proceedings.
In the case of HAYES v. HAYES (2000) 3 NWLR (648) 276 at 294, the principles guiding the assessment of maintenance in matrimonial proceedings were said to include:-
(a) the stations in life of the parties and their life styles;
(b) their respective means;
(c ) the conduct of the parties;
(d) existence or non existence of a child/children of the marriage.
Having considered the evidence adduced by the parties on the issue of maintenance in line with above principles or factors, the High Court was right in its decision on the maintenance of the children of the marriage. The decision is supported by the principles stated in the cases of AKINBONI v. AKINBONI and NEGBENEBOR v. NEGBENEBOR both (supra) cited by the learned Counsel for the Appellant. By the submission that the Appellant can not afford the sum of N22,000.00 per month as ordered by the High Court, learned Counsel for the Appellant is confirming that the decision by the High Court to award custody of the children to the Respondent cannot be faulted. As the Managing Director of a Bookstore which can afford to provide an official residence, vehicle and driver and pay for the utilities of the Appellant, the Appellant can sincerely afford the sum of N22,000.00 monthly for the upkeep and maintenance of his three (3) children. If his evidence of how he maintained the children in the absence of the Respondent was a yardstick, he could not have spent a lesser amount in the maintenance of the children during that period. With the inflationary trends in the country which is a matter of common knowledge, the High Court was right to have awarded the sum for maintenance of the children. I find no justification whatsoever for interfering with the findings by the High Court on the maintenance of the children.
In the result, for lacking in merit, the issue is resolved against the Appellant.
I have at the introductory stage of this judgment stated that I would consider the issue 2.3 raised by the learned Counsel for the Respondent since it enures from the grounds of appeal. The issue as a reminder, is whether the judgment of the High Court is against the weight of evidence. Put differently, the issue questions whether the judgment can be supported by the evidence adduced by the Respondent. The issue is a direct challenge or attack on the assessment or evaluation of the evidence adduced by the parties in the case.
I have while dealing with the issue of custody of the children and the order for maintenance found that the High Court had properly and correctly assessed the relevant evidence adduced before it in coming to the conclusion contained in the judgment.
I would like to point out that the issue of custody and the order for maintenance of the children are the pith; the meat and bone of the Appellant’s appeal since he supported the dissolution of the marriage with the Respondent. My findings on custody and maintenance have clearly subsumed the issue of whether the judgment of the High Court is against the weight of the evidence which was properly and correctly evaluated. The issue has therefore been effectively overtaken by the resolution of the said issues.
In the final result, with the resolution of the issues 2.1 and 2.2 against the Appellant and striking out the issue 2.3 for being incompetent, the grounds of the appeal fail and are dismissed. The appeal is dismissed and the decision of the F.C.T. High Court against which it was filed, is hereby affirmed.
The parties are to bear their respective costs of prosecuting the appeal.
PAUL ADAMU GALINJE, J.C.A.: I have had the opportunity of reading in draft, the judgment
just delivered by my learned brother Garba JCA, and I entirely agree with the reasoning contained therein and the conclusion arrived thereat. For the same reasons ably articulated in the lead judgment, which I adopt as mine, I find no merit in this appeal and accordingly dismiss same.
Parties are to bear their respective costs of prosecuting the appeal.
REGINA OBIAGELI NWODO, J.C.A.: I have had the privilege of reading in advance the lead judgment of my learned brother GARBA JCA just delivered. I am in complete agreement with the reasoning contained therein which I adopt as mine. Where the trial court has evaluated the evidence adduced before the court creditably and appraised the facts, the appellant court is divest of the right to substitute its views for that of the trial court.
See Agbir Ogbeh (2006) 11 NWLR (Pt.990) 65 SC; Fagbenro v. Arobadi (2006) 7 NWLR (Pt.978) 174 SC.
The trial court in the instance case discharged its duty in line with the established principles on evaluation of evidence adduced before the court.
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.
The 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. See William v. William (1987) 2NWLR (Pt.54) 66 SC.
I therefore cannot from the evaluation of the evidence by the trial court fault the decision.
Consequently, for the fuller reasons so eloquently set out in the lead judgment, this appeal is devoid of merit and is hereby dismissed. I also affirm the decision of the Federal Capital Territory High Court delivered on 17/11/2006. I abide by the order as to cost.
Appearances
O.A. AdegoroyeFor Appellant
AND
C.I. OkoyeFor Respondent
