MRS. MAYOWA ADERONKE OJENIRAN v. MR. JOSHUA FEMI OJENIRAN
(2018)LCN/11807(CA)
In The Court of Appeal of Nigeria
On Friday, the 29th day of June, 2018
CA/IL/112/17
RATIO
COURT AND PROCEDURE: THE EFFECT OF NON-COMPLIANCE
“The essence of the above provisions is that non-compliance with any of the provisions of the Rules would not render the proceedings void as urged by the learned counsel to the appellant but, confers the Court with the discretion to relieve a party from the consequences of non-compliance or dispense with the need for compliance by a party with any of the provisions of the Rules. This is so to ensure that substantial justice is done without deciding the parties’ case on technicalities as to form and not the substance of the case. Therefore, any non-compliance if at all, is an irregularity which should not be allowed to defeat the cause of justice. See ODUSOTE VS. ODUSOTE (supra) and MGBEAHURUIKE VS. MGBEAHURUIKE (2017) LPELR 42434 (CA) and AMAECHI VS. INEC (NO. 3) (2007) 18 NWLR (PT. 1065) P. 105. I hold that the petition before the lower Court was competent. The appellant’s issue (i) fails and is resolved against him.” PER CHIDI NWAOMA UWA, J.C.A.
EVIDENCE: WHERE EVIDENCE REMAINS UNCHALLENGED AND UNCONTROVERTED
“It is trite that evidence which is neither challenged nor controverted which is credible, is good evidence which the Court can and should act on. In the case of OMOREGBE VS. LAWANI (1980) LPELR 2655 (SC) P. 16, PARAS. A – D; (also reported in (1980) 3 – 4 SC P. 108) his Lordship Idigbe, JSC outlined the position of the law simply as: ”where evidence given by a party to any proceedings was not challenged by the opposite party who had the opportunity to do so, it is always open to the Court seised of the proceedings to act on the unchallenged evidence before it (see ODULAJA VS. HADDAD (1973) 11 S.C. P. 35; NIGERIAN MARITIME SERVICES LTD. VS. ALHAJI BELLO AFOLABI (1978) 2 SC 79 AT 81 – 82; see also the privy council on the Nigerian case of ADEL BOSHALI VS. ALLIED COMMERCIAL EXPORTERS LTD. (1961) ALL NLR 917 per lord Guest).”” PER CHIDI NWAOMA UWA, J.C.A.
JUSTICES
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria
Between
MRS. MAYOWA ADERONKE OJENIRAN Appellant(s)
AND
MR. JOSHUA FEMI OJENIRAN Respondent(s)
CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment):
The appeal is against the judgment of the Kwara State High Court delivered on 7th day of February, 2017 by H.A. Saleeman, J., where the Appellant was the Respondent and the Respondent the petitioner for the dissolution of their marriage solemnized on 22nd December, 2012. The marriage was blessed with a male child Alfred Ojeniran born on 21/4/14.
The background facts are that the Respondent petitioned against the appellant for a dissolution of his marriage on the ground that the marriage had broken down irretrievably, in that the Appellant deserted the Respondent. The respondent gave evidence at the trial Court and his father testified on his behalf. The learned counsel to the appellant rested his case on the evidence adduced by the Respondent as petitioner. At the close of the trial, the learned trial judge held that the marriage between the parties had broken down irretrievably under Section 15(2) (c), (d), (e) and (f) of the Matrimonial Causes Act as the Appellant had conducted herself in a way that the respondent could not reasonably be expected to live with her again.
An unconditional custody of the only child of the marriage (Alfred Joshua Femi Ojeniran) a boy of three (3) years of age at the time was awarded to the respondent who is to see to the child’s education, feeding, medical, clothing and general upbringing. The Appellant was granted access to their son within reasonable hours during the day but, the petitioner (Respondent) would be given prior notice to that effect by the Appellant.
The Appellant was dissatisfied with the judgment thus this appeal. From the Appellant’s grounds of appeal, six issues were formulated for the determination of the appeal as follow:
i. ‘Whether having regard to the processes filed by the Petitioner/Respondent the petition was competent. (GROUND ONE)
ii. Whether the learned trial Judge was right when he relied on evidence on fact/ground not pleaded in the petition to arrive at his decision (GROUND TWO)
iii. Whether the learned trial Judge properly evaluated the evidence on record before arriving at his decision. (GROUNDS FIVE AND SEVEN)
iv. Whether the learned trial Judge was right when he awarded custody of the only child of marriage (Master Alfred Ojeniran) to the Respondent herein when he did not claim it in his petition. (GROUND FOUR)
v. Whether the learned trial Judge was right when he awarded custody of the only child of the marriage to the Respondent herein when he neither stated his arrangement for the child in his petition nor gave evidence at trial to that effect. (GROUND THREE)
vi. Whether the learned trial Judge was right when he acted on inadmissible evidence to award custody of the only child of the marriage to the Respondent.? (GROUND SIX)
The Respondent on his part identified three (3) issues for the determination of the appeal as follows:
1. Whether the desertion of the matrimonial home by the Appellant’s to her mother house and couple (sic) with the permanent violent manners of the Appellant’s, her mother and her brothers towards the Respondent’s, the marriage as (sic) not broken down irretrievably.
2. Whether upon the unchallenged, uncontroverted and unreburter (sic) evidence of the Respondent before the trial Court, the petitioner has not proved that the marriage between him and the Appellant as (sic) not broken down irretrievably.
3. Whether the custody of the only child of the marriage (Master Alfred Ojeniran) given to the Respondent’s by the trial Court on the ground that the life of the child is in danger in the custody of the Appellant is not proper.
In arguing the appeal, the learned counsel to the Appellant A.R. Aminu appearing with I. Kamaldeen relied on his brief of argument filed on 29/1/18 and his reply brief filed on 22/2/17, as his argument in urging us to allow the appeal. The appellant’s issue one, challenged the jurisdiction of the trial Court to have entertained the petition which was alleged to be incompetent. It was submitted that the processes filed at the trial Court were incompetent, which robbed the trial Court of the jurisdiction to hear and determine the petition in that a copy of the marriage certificate was not attached with the petition and that the verifying affidavit was also not filed in accordance with the provisions of the Matrimonial Causes Rules, Cap 220 (Order V, Rule 27 of the Rules). It was argued that all the conditions precedent to confer jurisdiction on the trial Court were not fulfilled, Rule 27 (6) was said not to have been complied with.
See HAMZAT and ANOR VS. SANNI & 2 ORS (2015) 1 – 2 S.C. PAGE 1 at 14 and ROSSEK VS. AFRICAN CONTINENTAL BANK (1993) 10 S.C.N.J. PAGE 20 at 42 – 43. It was argued that the petitioner did not also comply with Order V, Rule 10 (i) of the Rules. It was alleged that the assessment showed that the verifying affidavit was sworn to at the time the petition was filed and not before, reliance was placed on the case of MR. DELE ODUSOTE VS. DR. (MRS.) TEMITOYE ODUSOTE (2012) 3 NWLR (PT. 1288) PAGE 487.
On the second issue, it was submitted that the ground for the petition for the dissolution of the marriage at the trial Court is desertion while the Respondent as petitioner had no averment on cruelty which evidence was led in support and relied upon by the trial Court in arriving at its decision. It was submitted that evidence on facts not pleaded go to no issue. Reliance was placed on the following casesYARE VS. N.S.W.C. (2013) 5 – 6 SC (PT. 1) PAGE 108 at 119, AGBOOLA VS. UNITED BANK FOR AFRICA PLC and 2 ORS (2011) 2 – 3 SC (PT. 11) PAGE 43 at 61 and OKOYE & 6 ORS VS. NWANKWO (2014) 6 – 7 SC (PT. II) PAGE 29 at 55 – 56.
The appellant’s third issue is on the evaluation of evidence, it was reargued that the ground for the dissolution of the marriage was desertion under Section 15 (2) (d) of the Matrimonial Causes Act. Reference was made to the evidence of the Respondent at pages 121 – 125 of the printed records to the effect that, for instance, that the date of the alleged desertion was not pleaded by the Respondent as petitioner. It was argued that the Appellant did not desert the matrimonial home for a continuous period of two years if at all. Further, without conceding that the Appellant deserted the Respondent after conceiving of a child in July or August, 2013 shows that the evidence of the petitioner was at variance with his pleadings, the Respondent herein having averred that the Appellant deserted the matrimonial home in May 2013, a period of more than two years before presentation of the petition. Reference was made to paragraph 4 (b) and (c) of the petition.
Further, that the appellant and the respondent met at the house of the respondent’s father in April, 2014 during the naming ceremony of their child and also met at the social welfare office after the naming of the child. It was argued that there was no desertion. The learned counsel defined desertion according to Chambers 21st Century Dictionary, page 362.
The Appellant’s fourth issue is whether the trial Court was right to have awarded custody of the only child of the marriage (Master Alfred Ojeniran) to the Respondent when he did not claim it in his petition? It was the contention of the learned counsel that the custody of a child of a marriage subject of divorce proceedings must be specifically claimed in the petition, being one of the matrimonial reliefs contemplated by the Matrimonial Causes Act and the Matrimonial Causes Rules, Sections 71 (1) and (2) of the Act were reviewed.
Also, Order XIV Rule 20 (1) of the Matrimonial Causes Rules and the cases of ATIVIE VS. KABEL METAL NIG. LTD. (2008) 5 – 6 S.C. (PT. II) PAGE 47 at 56, OKWEJIMINOR VS. GBAKEJI & ANOR (2008) 1 S.C. (PT. III) PAGE 263 at 280. It was concluded that custody of the only child was not pleaded by the respondent as petitioner; therefore that custody of the child ought not to have been awarded to the respondent. The decision was said to be perverse, reliance was placed on the case of CHUKWU VS. INEC & 3 ORS (2014) 1 – 2 SC (PT. III) PAGE 46 at 88.
The appellant’s fifth issue questioned the award of custody of the only child of the marriage to the respondent when the respondent did not plead the arrangement for the child and did not give evidence at the trial concerning same. The issue of custody of a child of the marriage sought to be dissolved under the Matrimonial Causes Act and Matrimonial Causes Rules was re-argued. Reference was once again made to Section 71 (1) and (2) of the Matrimonial Causes Act. It was re-argued that the arrangement for the welfare of the children of the marriage subject matter of the proceedings must be specifically pleaded; reference was made to Order V, Rule 14. It was concluded on this issue that the discretion conferred upon the trial Court in matters of custody of children by Sections 70 and 71 of the Matrimonial Causes Act must be exercised in accordance with the Matrimonial Causes Rules.
The appellant’s sixth issue is whether the trial Court was right to have acted on inadmissible evidence to award custody of the only child of the marriage to the Respondent. It was submitted that the trial Court should have expunged the inadmissible evidence where inadvertently admitted in evidence. For instance, that apart from the oral evidence in Court by the Respondent, there was no evidence of payment of the sum of N5,000.00 (Five Thousand Naira) made through Social Welfare Office. Also, that there was no evidence to show that the child was not being well handled by the appellant amongst other allegations.
Further, that the respondent secured admission for the Appellant’s HND Programme but, did not sponsor her, contrary to the finding of the trial Court which resulted in the further finding that the Appellant was jobless and lacked earning capability. We were urged to set aside the judgment of the trial Court.
In response, the learned counsel to the respondent Kamaldeen Quadri in arguing his first issue, submitted that the grounds upon which the Respondent based his petition was the behaviour of the Appellant and desertion of the matrimonial home back to her mother’s house without the consent of the Respondent, which is covered by the Matrimonial Causes Act. It was argued that the intolerable behavior of the Appellant towards the Respondent, the act of desertion by the Appellant and the evidence of the Respondent before the trial Court was not contradicted, challenged or controverted under cross examination.
On the issue of the marriage certificate not being attached to the petition, reference was made to page 7 of the records of appeal paragraph 1 to the effect that the Appellant and the Respondent got married under the marriage Act on 22nd December, 2012 and the marriage certificate was pleaded. It was submitted that the marriage certificate had been in custody of the Appellant from the date of the marriage and at the same time at the trial, the learned counsel to the Appellant objected to the Respondent tendering a certified Secondary copy of the Marriage Certificate (certified by the Kwara State Women and Social Welfare, Ilorin). In the alternative, it was argued (without conceding) that on failure to attach the copy of the marriage certificate in custody of the appellant, by virtue of Order XXI, Rules 2 and 3 of the Matrimonial Causes Act, such omission would be treated as a mere irregularity.
On the issue of the verifying affidavit, it was submitted that the affidavit in respect of the present case was sworn before a commissioner for oaths and bears the same date with the petition which presupposes that it was filed along with the petition in line with Order V Rule 10 (1) of the Matrimonial Causes Act. Reference was made to ODUSOTE VS. ODUSOTE (supra) at PAGE 498 as to the objective, being an oath about the truth of the contents of the petition by the petitioner, sworn to before the petition is filed and could accompany the petition.
Without conceding on the argument of the learned counsel to the Appellant, it was argued that the issue of not attaching the marriage certificate and the verifying affidavit had been argued and dismissed by the trial Court in its Ruling at pages 116 – 120 of the printed records of appeal. Reference was once again made to Order XX1, Rules 2 – 3 of the Matrimonial Causes Act which was reviewed. It was concluded on this issue that the petition before the lower Court leading to this appeal is competent.
On the Respondent’s second issue, it was submitted that the appellant failed to adduce any evidence in rebuttal of the evidence of the Respondent which is deemed admitted by the Appellant who failed to present her defence. See OLOWU VS. OLOWU (1985) 3 NWLR (PT. 13) PAGE 372 at 386, ALAO VS. KURE (2000) FWLR (PT. 6) PAGE 887, INAKOJU 2 ORS VS. HON. A. ADELEKE & ORS 2007; 1 SCNJ at 87, OBMIAMI BRICK STONE LTD VS. ACB LTD. (1992) 3 SCNJ 1 at 38 and BROAD LINE ENT. LTD VS. MONTEREY CORP. (1995) 9 NWLR (PT. 417) 1 at 27 amongst others. Further, it was argued that the appellant who rested her case on that of the respondent cannot turn around to complain about evidence led by the Respondent which was not controverted or challenged.
It was argued that the learned counsel to the Appellant, in his brief of argument was giving evidence on behalf of the Appellant, which is not permitted; reliance was placed on the case of SEGUN OGUNSANYA VS. STATE (2011) 6 SC (PT. II) 56.
On the respondent’s third issue, it was submitted that the major condition to be considered in respect of custody of a child (or children) of a marriage sought to be dissolved is the welfare of the child (or children). It was argued that it was not in contention at the trial that the life of the only child of the marriage was in danger while in the custody of the Appellant which led to the trial Court granting custody of the child to the Respondent. Further, that by Sections 70 (1), 71 (1) and (3) of the Act, custody could be granted to a third party. See NANNA VS. NANNA (2006) 3 NWLR (PT. 96) PAGE 1. It was the contention of the learned counsel that the Respondent at the trial Court prayed for full custody of the child of the marriage without any form of challenge on Cross Examination challenging the prayer. It was concluded that the Respondent being the biological father had a right to be granted the full custody of the child as rightly held by the trial Court. See JEGEDE VS. OLESHIN (2016) FWLR (PT. 847) PAGE 555 at 576, PAGES D – E.
We were urged to uphold the decision of the trial Court granting custody of the only child to the marriage to the Respondent.
The appellant’s reply brief is a re-argument of the submissions in the appellant’s brief of argument.
I would utilize the issues for the determination of the appeal as formulated by the appellant but would resolve issues (ii) and (iii) together and issues (iv), (v) and (vi) together. In the appellant?s first issue, the competence of the petition at the lower Court was challenged. It was the contention of the learned counsel to the appellant that the trial Court had no jurisdiction to have entertained the petition in that the marriage certificate was not attached to the petition and that the verifying affidavit was also not filed in accordance with the provisions of the Matrimonial Causes Rules, Order V, Rule 27 (6) and Rule 10 (1).
In respect of the marriage certificate not being attached to the petition (pursuant to Order V Rule 27 (6)) the petitioner (now Respondent) at the trial Court pleaded the marriage certificate issued under the Marriage Act, at the Marriage Registry, Ilorin on the 22nd day of December, 2012 in paragraph 1 of his petition. At pages 124 – 125 of the printed records, the learned counsel sought to tender a certified secondary copy of the marriage certificate through the Respondent but, it was objected to by the learned counsel to the Appellant. The appellant did not refute the allegation that she had the original of the marriage certificate.
On the allegation that the verifying affidavit was not sworn before the petition was filed in compliance with Order V Rule 10 (1), from pages 1 – 2 of the printed records, the Notice of petition was filed on 18/5/15, a verifying affidavit bearing the same date 18/5/15 is at pages 3 – 4 of the printed records while the petition for dissolution of marriage was also filed on the same 18/5/15, at pages 7 – 9 of the printed records. It is clear from these records that the verifying affidavit to the petition was filed on the same day as the petition.
Order V Rule 27 (6) of the Matrimonial Causes Rules provides as follows:
(6) Where a petitioner is unable, for any reason, to comply with Sub-rule (1) of this rule, the petitioner shall state in the affidavit verifying the petition the circumstances by reason of which he is unable to comply.
While Order V Rule 10 (1) provides as follows:
(1) 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.”
All that these provisions require is that an affidavit be sworn to by the petitioner before the petition is filed to verify that all the facts in his petition are true, in his personal knowledge and as to his belief in the truth of every fact in the petition. As rightly argued by the learned counsel to the appellant, by the use of the word ‘shall’ in the provisions ordinarily means that the provisions are mandatory and are to be complied with as a condition precedent to the filing of the petition, which implies that the affidavit must be sworn to by the petitioner before the petition is filed, to verify the facts in the petition. Therefore, the provision contemplates that the affidavit would accompany the petition by being annexed to and forming part of the petition to be filed.
Therefore, the important thing is that the petitioner swears to the truth of the facts set out in the petition, to his knowledge and belief. As long as the affidavit is sworn to before the petition was filed and it accompanied the petition, the requirement under Order V, Rule 10 (1) would have been met. In the present case, the verifying affidavit at pages 3 – 4 of the records of appeal preceded the petition at pages 7 – 9 of the printed records. The affidavit formed part of the petition. The learned counsel to the applicant cannot therefore rightly argue that there was non-compliance with the Matrimonial Causes Rules, there was compliance.
On the other side of the coin, the Matrimonial Causes Rules also made provision for the Court to dispense with the need for compliance with the Matrimonial Causes Rules under Order XXI Rules 2 and 3 which provide as follows:
(2) Non-compliance with Rules not to render proceedings void. Subject to these Rules, non-compliance with these Rules, or with a rule of practice and subject to these Rules, non-compliance with these Rules, or with a rule of practice and procedure of a 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 may think fit.
(3) Court may relieve party from consequences of non-compliance. 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 a rule of practice and procedure of the Court applicable to the proceedings or with an order made by the Court;
(b) A Court may, upon such terms as the Court thinks fit, dispense with the need for compliance by a party with any provision of these Rules.
The essence of the above provisions is that non-compliance with any of the provisions of the Rules would not render the proceedings void as urged by the learned counsel to the appellant but, confers the Court with the discretion to relieve a party from the consequences of non-compliance or dispense with the need for compliance by a party with any of the provisions of the Rules. This is so to ensure that substantial justice is done without deciding the parties’ case on technicalities as to form and not the substance of the case. Therefore, any non-compliance if at all, is an irregularity which should not be allowed to defeat the cause of justice. See ODUSOTE VS. ODUSOTE (supra) and MGBEAHURUIKE VS. MGBEAHURUIKE (2017) LPELR 42434 (CA) and AMAECHI VS. INEC (NO. 3) (2007) 18 NWLR (PT. 1065) P. 105. I hold that the petition before the lower Court was competent. The appellant’s issue (i) fails and is resolved against him.
The appellant’s issues (ii) and (iii) are challenging the evaluation of evidence by the trial Court. From the records of Court, the Respondent in support of his pleadings called PW1 (his father) in evidence and also testified as the PW2. Evidence was given to show that the marriage between the Respondent and the Appellant had broken down irretrievably. The Respondent gave details of instances of aggressive behavior towards him by the appellant, his efforts to make peace and live peacefully with the appellant and to salvage their marriage. The PW1 also gave evidence as to the efforts he made to make sure the appellant lived with the Respondent in tune with their marriage covenant but, all his efforts were said to be unsuccessful because the appellant’s behaviour which made it impossible for her to live in peace with the Respondent was supported by her parents who did not co-operate with the family of the Respondent, in ensuring that there was everlasting peace in the Respondent’s marriage.
The PW2 also gave evidence that the appellant returned to her parent’s house with their assistance and that of her brothers and she took their only child along. There is also evidence from the PW2 that the appellant’s brother in assisting the appellant to molest him beat him up and on one occasion had him locked up. It was contended that the appellant fought the Respondent constantly, picked quarrels with him and sometimes beat him up. The respondent at page 123 of the printed records also testified as to why he wanted a dissolution of his marriage to the appellant and prayed the Court as follows:
”I want the Court to dissolve the marriage between me and the respondent because I have endured so much and suffered and humiliated in the hand of this girl and her family and she has behaved in a way that I can no longer reasonably be expected to live with her. I lost my joy and I almost lost my job. I don’t want to loose my life and I do not want to be a murderer in case the girl pushed me beyond the wall. I also pray for the custody of my baby. There is no more love between both of us. Each time I see her I feel for revenge and pain in my heart. I don?t know what will happen if I find her in the same room.”
All these pieces of evidence were not rebutted or challenged since the appellant did not adduce any evidence in defence but, rested her case on that of the Respondent.
There was no cross-examination to challenge the above testimony. It is trite that evidence which is neither challenged nor controverted which is credible, is good evidence which the Court can and should act on. In the case of OMOREGBE VS. LAWANI (1980) LPELR 2655 (SC) P. 16, PARAS. A – D; (also reported in (1980) 3 – 4 SC P. 108) his Lordship Idigbe, JSC outlined the position of the law simply as: ”where evidence given by a party to any proceedings was not challenged by the opposite party who had the opportunity to do so, it is always open to the Court seised of the proceedings to act on the unchallenged evidence before it (see ODULAJA VS. HADDAD (1973) 11 S.C. P. 35; NIGERIAN MARITIME SERVICES LTD. VS. ALHAJI BELLO AFOLABI (1978) 2 SC 79 AT 81 – 82; see also the privy council on the Nigerian case of ADEL BOSHALI VS. ALLIED COMMERCIAL EXPORTERS LTD. (1961) ALL NLR 917 per lord Guest).”
Similarly, his Lordship, Ogunbiyi, JSC in ESENE VS. STATE (2017) LPELR ? 41912 (SC) AT PP. 23 ? 24, PARAS. F – A stressed that:
”The law is well settled again and again that evidence which is neither challenged nor debunked remains good, credible and should be relied upon by a trial judge, who would in turn ascribe probative value thereon. The view held by this Court in the case of EBEINWE VS. THE STATE (supra).”
See also CHIEF SUNDAY OGUNYADE VS. SOLOMON OLUYEMI OSHUNKEYE & ANOR (2007) LPELR 2355 (SC) also reported in (2007) 15 NWLR (PT. 1057) p. 218; (2007) SC (PT. II) P. 60).
The appellant did not challenge or controvert the evidence given by the Respondent as to the intolerable behaviour of the Appellant and her desertion of the matrimonial home back to her parents’ house upon which the petition was based. The learned trial judge was right to have relied on the evidence and ascribed probative value to same since it was not debunked. The appellant?s issues (ii) and (iii) fail and are resolved against the appellant.
The appellant’s issues (iv), (v) and (vi) challenged the award of the custody of the only child of the marriage master Alfred Ojeniran to the Respondent.
I would resolve the issues together. The appellant’s learned counsel argued that the custody of the only child of the marriage ought not to have been awarded to the Respondent because it was not pleaded. The provisions of the Matrimonial Causes Act made provisions concerning custody of children (a child in the present case). Section 71 (1) and(3)provide as follows:
(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 it thinks proper.
(3) In proceedings with respect to the custody of children of a marriage, the Court may, if it is satisfied that it is desirable to do so, make an order placing the children, or such of them as it thinks fit, in the custody of a person other than party to the marriage.
The matrimonial causes touch on issues that affect the family, particularly the children who are the most vulnerable, therefore their interest is paramount. For this reason, the Courts in such proceedings were given broad discretion to exercise in determining from the circumstances of each case, where the child or children of the marriage should be, which is not limited to the parents or relation but to a non-party. The best interest of the child is always considered in exercising the Court’s discretion as to who is to have custody of a child of a disputing couple who are usually more concerned with their own interests and desires rather than that of the child or children whatever the case may be. For this reason, whether or not the parties plead facts as to custody of the children, the Court has the discretion to decipher from the facts which of the parties’ custody should go to.
In examining the evidence of the Respondent, which was not challenged or controverted, not even via cross examination as earlier held in this judgment, the Court can rightly (and did) grant custody to the Respondent.
At page 123 of the printed records of appeal, the Respondent’s (PW2) unchallenged evidence was as follows:
”My baby is 2 years plus now and I have only seen him 3 times. I reported to the Ministry of Social Welfare who intervened and went to her house and saw the baby being handled carelessly. The respondent will send offending photographs of the baby eating pip (pop) substance to me to tell me that my baby is not getting adequate care she persistently calling me asking for divorce and told me she is into a new relationship with a man whom she has gone to live with the man. ?She will snap the picture of her man and my baby which I see on social media. …I also pray for the custody of my baby.”
In evaluating the evidence before the Court, the learned trial judge was right to have believed the above evidence adduced by the Respondent when at page 138 of the printed records he held thus:
”The Respondent again did not state any contrary view in regard to the custody of the child. Where there is only one version of a story that is uncontroverted, and induces believe, the Court has no option than to accept the one sided story. I therefore belief (sic) the evidence of the petitioner in this regard.”
I cannot fault the above finding of the trial Court. In considering who to award custody of a child to, the Court is more concerned with the welfare of the child as a whole, which includes day to day care of the child, his moral upbringing, physical development/care and mental state, as well as education, a balanced life irrespective of the fact that the parents are unable to live together and jointly raise the child under the same roof. See ODUSOTE VS. ODUSOTE (supra), WILLIAM VS. WILLIAM (1987) 2 NWLR (PT. 54) 66 SC, SANNI VS. MABINUORI (2014) LPELR 22537 (CA) PP. 7 – 8, PARAS. D ? B, ODIA VS. ODIA (2015) LPELR 25779 (CA) P. 17, PARAS. A – D and EMMANUEL VS. FUNKE (2017) LPELR 43251 (CA) PP. 23 – 26, PARA. C.
Further, the Respondent is the father of the child in question and is in a position to cater for and care for his child, a son. Young female children are generally better off with their mothers, depending also on the circumstances of each case, while male children are better off with their father. There is nothing on record to show that the Respondent would be unable to care and cater for his son in every way. The trial Court’s grant of the custody of the only child of the marriage, Alfred Joshua Femi Ojeniran cannot be faulted; I am at one with same. The appellant?s issues (iv), (v) and (vi) fail and are resolved against the appellant.
Having resolved all the issues against the appellant, I hold that there is no merit in this appeal, I dismiss it in its entirety and affirm the decision of the trial Court.
Parties are to bear their respective costs.
MOJEED ADEKUNLE OWOADE, J.C.A.: I read in advance the draft Judgment just delivered by my learned brother CHIDI NWAOMA UWA, J.C.A. I agree with the reasoning and conclusion and I also dismiss the Appeal for lacking in merit. In particular, I agree with both my learned brother CHIDI NWAOMA UWA, J.C.A. and the learned trial Judge in the Court below that as the Appellant never contested the Issue of the custody of the Child granted to the Respondent in the Court below, the uncontradicted and uncontroverted evidence of the Respondent on the custody of the child ought to be accepted. In any event, there is no immutable Principle of Law which provides that custody of a child of tender age should be awarded to his mother in divorce proceedings NANNA Vs. NANNA (2006) 3 NWLR (PT. 966) 1.
Rather, where in proceedings before any Court the custody or upbringing of a minor is in question, the Court in deciding the question shall regard the welfare of the minor as the first and paramount consideration. WILLIAMS Vs. WILLIAMS {1987} 2 NWLR (PT. 54) 66. AFONJA VS. AFONJA {1971} 1 U.LL.R. 105. For these and the fuller reasons stated in the lead Judgment of my earned brother CHIDI NWAOMA UWA, J.C.A. I also dismiss the Appeal.
HAMMA AKAWU BARKA, J.C.A.: I had the singular opportunity of reading in draft the judgment just read by my learned brother CHIDI NWAOMA UWA JCA with which I am in full agreement. The state of the law is constant in that in the determination of whom to give custody of child to in a broken home, it is the interest of the child that is always uppermost in the mind of the Court. Where evidence abounds as in the instant case that appellant was not treating the child well, a Court of justice will rightly deny her custody. The appellant has shown no merit in this appeal to warrant the reversal of the lower Court’s judgment. In the event, the appeal is unmeritorious deserving of a dismissal which I now order. I make no order as to cost.
Appearances:
A.R. Aminu with him, I.
KamaldeenFor Appellant(s)
Kamaldeen QuadriFor Respondent(s)
