OLACHI NWADIATO CHIORI-ABEGUNDE v. ADEDAYO OLAWALE ABEGUNDE
(2019)LCN/13570(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 25th day of June, 2019
CA/L/950/2015
RATIO
RELIEFS: WHETHER THE COURT WILL GRANT RELIEFS THAT ARE NOT APPLIED FOR BY THE PARTIES TO A SUIT
To do otherwise, is to empower the Court to grant reliefs which the party did not ask for without affording them a hearing. This will be contrary to all known rules and principles of fair hearing and of extant judicial decisions that the Court has no jurisdiction to grant reliefs not asked for by the parties, EKPENYONG v. NYONG (1975) 2 S.C. 71.PER GABRIEL OMONIYI KOLAWOLE, J.C.A.
APPEAL: WHEN THE APPELLATE COURT WILL INTERFERE IN THE FINDINGS OF THE LOWER COURTS
The Appellate Court will not ordinarily interfere with the exercise of a discretionary power by the lower Court except on the judicially recognized groundsand unless it is shown that failure to do so is adjudged to be perverse as it may have occasioned a miscarriage of justice. See: Court of Appeals decision in OFFODILE V EGWUATU (2006) 1 NWLR (Pt 961) 421 CA. PER GABRIEL OMONIYI KOLAWOLE, J.C.A.
JUSTICES:
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria
GABRIEL OMONIYI KOLAWOLE Justice of The Court of Appeal of Nigeria
Between
OLACHI NWADIATO CHIORI-ABEGUNDE – Appellant(s)
AND
ADEDAYO OLAWALE ABEGUNDE – Respondent(s)
GABRIEL OMONIYI KOLAWOLE, J.C.A. (Delivering the Leading Judgment): This appeal emanates from the Judgment of High Court of Lagos State delivered on 16/5/2014 by O.O. Atilade, J. (as he then was and later, the Chief Judge of Lagos) in which the Respondent as the Petitioner in a divorce suit, sued the Appellant as a Respondent.
By the said Petition filed in the lower Court, the Respondent herein as the Petitioner sought against the Appellant as the Respondent in the said proceedings the following reliefs as reproduced in pages 78 of the Record of Appeal. The reliefs read thus:
(i) An order that the marriage celebrated between the Petitioner and the Respondent on the 20th day of September, 2008 do and shall be dissolved upon the grounds stated in Sections 15(1) and 15(2)(f) of the Matrimonial Causes Act (Cap.220 Laws of the Federation of Nigeria, 1990) as disclosed by the facts averred in Petition, with proviso made for an Order of Decree absolute upon the effluxion of time stipulated in the Matrimonial Causes Act after the pronouncement
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of the Order of Decree Nisi aforesaid.
(ii) That the child of the marriage be retained in the custody and guardianship of the Respondent who shall ensure the continuing education of the said child with proper guidance being given by both parties with the Petitioner being granted unrestricted access to the child during school terms.
(iii) That the Respondent permits the child of the marriage to stay with the Petitioner during school vacation and holidays.
(iv) That the Petitioner shall upon the grant of the Decree/Order, the details of which are given above, be responsible for the payment the sum of N30,000 quarterly to the Respondent for maintenance, welfare, advancement, and/or education of the child of the marriage.
The Petition did not seem to be contested by the Appellant on the principal relief to have the marriage celebrated by both parties on 20/9/2008 to be dissolved, and it was the orders made by the lower Court in relation to the custody of the only child of the marriage who was about three (3) years old when the Petition was presented, that eventually
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led to the instant appeal because, the Appellant who was the Respondent in the lower Court was dissatisfied with the said orders.
The Appellant has filed her Notice of Appeal dated 7/8/14 and has raised seven (7) grounds of appeal. The said grounds of Appeal without their particulars read thus:
GROUND 1
That the learned trial Judge erred in law when he granted both the Respondent and the Appellant joint custody of the child of the marriage Master Olawale Chimele Abegunde, in his Judgment appealed against.
GROUND 2
The learned trial Judge erred in law when he granted the parties to this suit alternate custody of the child Master Olawale Chimele Abegunde, contrary to the reliefs sought by the Respondent in Petition dated the 18th September, 2012.
GROUND 3
The learned trial Judge erred in law when he granted the Respondent unrestrained access to the child of the marriage and custody of the said child upon attaining the age of 14 years until he reaches the age of majority. Attaining the age of 14 years and to remain with him until the child
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reaches the age of majority in his Petition.
GROUND 4
The learned trial Judge erred in law when he suomotu raised the issues of joint custody, alternate custody, unrestrained access to the child of the marriage and custody with Respondent upon attaining the age of 14 years by the child until he reaches majority without inviting Counsel on both sides to address him on the said issues.
GROUND 5
The learned trial Judge failed to properly evaluate the evidence of the parties in this case and came to wrong decisions in his Judgment of 16th May, 2014.
GROUND 6
The learned trial Judge erred in law or misdirected himself and thereby came to a wrong decision in law when he granted joint and alternate custody of the child of the marriage Master Olawale Chimele Abegunde to both the Appellant and the Respondent.
GROUND 7
The Judgment complained of is against the weight of evidence.
The Record of Appeal was transmitted to this Court on 22/9/15, and it was deemed as having been properly transmitted on 26/2/19.
In line with the Rules of
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this Court, the parties filed their respective Briefs of Arguments. The Appellants Brief of Argument was filed on 19/9/16, and was deemed on 26/2/19.
In paragraph 3.0 of the Appellants Brief of Argument, the Appellants Counsel, Chief P.N. Umeh sets down six (6) issues for determination. These are:
(i) Whether the lower Court was right to have granted joint custody of the child of the marriage to both parents in the absence of any claim for joint custody by the Respondent and/or any of the parties? (Grounds 1, 5 and 7)
(ii) Whether the lower Court was right to have granted alternative custody of the child of the marriage to both parties during school vacations and weekend visits in the absence of any express claim for alternate custody by the Respondent and/or any of the parties? (Grounds 2, 5 and 7)
(iii) Whether the lower Court was right to have granted the Respondent unrestrained access to the child of the marriage in the absence of any express claim for unrestrained access? (Grounds 3, 5 and 7)
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(iv) Whether the lower Court was right to have granted the Respondent custody of the child of the marriage upon attaining the age of 14 (fourteen) years and thereafter until he reaches the age of majority in the absence of any claim for such relief? (Grounds 3, 5 and 7)
(v) Whether the lower Court was right to have suomotu raised and decided/determined the issues of joint custody, alternate custody, unrestrained access to the child and custody with Respondent upon the child attaining 14 (Fourteen) years and thereafter till majority, without inviting/calling Counsel on both sides to address the lower Court on same? (Grounds 4, 5 and 7)
(vi) Whether or not the lower Court erred in law when it granted joint and alternate custody of the child of the marriage to both the Appellant and Respondent against the intendment of the Matrimonial Causes Act? (Grounds 5, 6 and 7); custody by the Respondent and/or any of the parties? (Grounds 1, 5 and 7)
The Respondent when served with the Appellants Brief of Argument filed a Respondent Brief of Argument on 25/2/19 and it was deemed
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on 26/2/19.
In paragraph 3.0 of the Respondents Brief, the learned Counsel, A.O. Atanda-Shoremi, Esq., sets down only one issue for determination. The said issue is: Whether the lower Court as in this present case is by law empowered to exercise its absolute discretion as it deems fit in the grant of custody, guardianship, welfare, advance or education of the child of the marriage.
When I read these issues, it is my view that the central issue which this Court is being invited to consider and resolve, is whether the lower Court in the undoubted exercise of its discretionary powers, as it is prescribed by the provision of Section 71 of the Matrimonial Causes Act, supra, is empowered to grant the reliefs which he had granted. This issue, in my view, addressed all the six (6) issues which the Appellants Counsel had split into six (6) and which also address the lone issue which the Respondent has donated for determination.
Just before I consider the issues which have been set down for determination, it is expedient that I note that although, both parties, by the processes filed, are ad idem on the principal
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relief being claimed by the Petitioner, i.e. for an order of judicial dissolution of the marriage both parties celebrated and consummated on 20th September, 2008. But on the issue of the custody of the only child of the marriage who was barely three (3) years plus as at 19/9/2012 when the Petition was presented, the Respondent by her Answer to the Petition sought a modified relief in relation to the custody of the child of the marriage even though the Respondent in this appeal as the Petitioner had conceded custody to the Appellant in the terms of reliefs (ii) and (iii) in the Petition (see page 7 of the Record).
In the Answer to the Petition (pages 15 19 of the Record of Appeal), the Appellant as the Respondent in the lower Court, sought for the following orders from Court:
(ii) An order that the Petitioner be granted restricted access to Olawale Chimele Abegunde(Male, born on 18th June, 2009) the child of the marriage to visits only upon prior notice to the Respondent.
(iii) An order that the Respondent be given full custody
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of Olawale Chimele Abegunde (Male, born on 18th June, 2009) the child of the marriage, until the child attains the age of twelve (12) years, at which time, custody may be share with the Petitioner having custody of the child during Easter vacation.
Reliefs (i) and (iv) in the Answer to the Petition are really not in contention even though the Appellant as the Respondent in the lower Court, expressed the view that the sum of N30,000.00 being proposed to be made available for the upkeep of the only child of the marriage was too small.
The lower Court was faced with these two sets of reliefs when it prescribed what the trial Judge may have considered as the middle of the way to both parties.
The question which agitated my thoughts whilst reading the file was: What was the evidence led, the evaluation of which may have informed the decision of the lower Court in relation to the orders made in its Judgment by which the pleaded reliefs in the Petition were modified in the Judgment delivered on 16/5/14 which is reproduced in pages 52 60 of the Record of Appeal.
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In pages 59 60 of the Record, the learned trial Judge remarked in summing up the evidence led by both parties and states thus:
I have considered all the evidence adduced by both parties on the issue of joint custody of Master Olawale Chimelo Abegunde and I find as follows;
The Petitioner having agreed to allow the Respondent custody of the child of the marriage on the ground of the age of the child and in the absence of any vitiating vice which could cause the child any danger, I have no reason for not allowing the Petitioner unrestricted access to the child of the marriage.
Consequently, this Court orders that both the Petitioner and the Respondent are hereby granted joint custody of the child of the marriage Master Olawale Chimelo Abegunde born on the 18th June 2009.
The parties are to have alternate custody of the child during school vacations and weekend visits and are also to jointly decide on the schooling and other issues relating to the welfare of the child.
The Petitioner is also granted unrestrained access to the child of the marriage and upon attaining the age of 14 years the child shall remain in the custody of the
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petitioner until he reaches the age of majority.
The Record of Appeal unfortunately does not contain the notes of the evidence led during the trial in February March, 2014. The snippets of the evidence were only a summary of what the lower Court in its Judgment considered fit to state in the Judgment delivered. So, as it were, it is difficult for this Court, which it rarely does, to engage in a re-evaluation of the evidence led in order to come to a decision, whether or not, the orders granted in relation to the custody of the only child of the marriage, which are in contrast with the pleaded reliefs in the Appellants Answer to the Petition were proper or perverse.
In the Appellants Brief of Argument, the learned Counsel argued issues 14 together, while issues 5 and 6 were argued separately.
The substance of the arguments canvassed by the Appellants Counsel on issues 14, had to do with the orders made by the learned trial Judge upon the dissolution of the marriage between the Appellant and Respondent in relation to the custody of the only child of the marriage
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wherein the lower Court, granted both the Appellant and the Respondent, joint custody to both parents when, according to the Appellants Counsel, no claim in the Petition filed before the lower Court was for joint custody or alternate custody. The Courts attention was invited to the claims before the lower Court as were reproduced in pages 78 of the Record, and it was submitted, that the orders made by the lower Court, were not within any of the reliefs which the Respondent as the Petitioner sought for in the lower Court. The Appellants Counsel, cited the decision in MUSA V. FED. MIN. OF TOURISM CULTURE & NATIONAL ORIENTATION (2013) 10 NWLR (pt.13630) 656 @ 589C-D to submit that parties are bound by their claims before the Court, and further, whilst arguing that the lower Court had no jurisdiction to grant an order which the Respondent never sought for, the Appellants Counsel cited and relied on the decisions in AJAYI v. AJAYI (2014) 14 NWLR (pt.14310) 688 @ 601B-F and the Supreme Court in EKPENYONG v. NYONG (1975) 2 S.C. 71 and in
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NALSA & TEAM ASSOCIATES v. NNPC (1991) 8 NWLR (pt.212) 625.
The Appellants Counsel submitted that the Respondent in his Petition conceded custody to the Appellant and that he did not ask for joint custody neither did he ask for alternate custody, unrestrained access and/or custody upon attaining the age 14 (Fourteen) years till majority.”
The Appellants Counsel whilst citing the decisions in EGWU v. EGWU (1978) 11 12 S.C 111 and in OBIOMA v. OLOMU (1978) 3 S.C. 1 submitted that the Court may make or grant incidental orders and that they must flow from the reliefs claimed, but the Court has no jurisdiction or power to award a relief not claimed by the parties.
The Appellants Counsel, whilst citing the decision in OSAGHAE V AMADASUN (2014) 6 NWLR (pt.1433) 346 @ 341 (sic) argued that the findings and conclusions of the trial Court are not supported by evidence on record and ought to be set aside on appeal. The Court was urged to resolve issues 14 in favour of the Appellant.
On issue 5 in the Appellants Brief of Arguments, which according to the
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Appellants Counsel was distilled from grounds 4, 5 and 7 of the Notice of Appeal, the Appellants Counsel canvassed arguments that are substantially similar to the submissions made on issues 14 and the only slant which Appellants Counsel seemed to have introduced, was to the effect that the lower Court was wrong to have suo motu raised and determined issues not presented before it without calling on the two parties to address it on same. While citing the decision in SOCIETY BIC S.A. v. CHARZIN IND. LTD. (2014) 4 NWLR (pt.1393) 497 @ 545-546A-A, it was submitted that the Court is not allowed to create a new case for the parties or to go beyond the scope of reliefs sought by the parties. See the decision in MTN (NIG.) COMMUNICATION LTD. v. SADIKU (2014) 17 NWLR (pt.1436) 352 @ 415.
The Appellants Counsel relied on the Supreme Courts decision in JEV v. IYORTYOM (2014) 14 NWLR (pt.1428) 525 @ 606-607H-C to argue that where the Court raises issue suo motu and upon which it will base its decision, it has an obligation to hear both parties on the said issue lest, it would have acted in breach
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of the rights of any of the parties affected by the said decision. The decision which the Court took based on issues it raised suo motu, and on which the parties were not heard, was said to be a nullity and the Court was urged to resolve issue 5 in favour of the Appellant.
On issue 6, the Appellants Counsel argued that the issue was distilled from grounds 5, 6 and 7 in the Notice of Appeal, and the issue was based on the provision of the enabling Act, i.e. the Matrimonial Causes Act, supra. It seems that the sole issue which the Respondents Counsel has set down for determination was also based on the application of the provision of the said Act to the proved facts in the proceedings.
The Appellants Counsel argued that the reliefs granted by the lower Court, are not recognized by the law and cited the decision in AYOADE v. SPRING BANK PLC supra @ 133C-F. It was argued that there is no law that supports the grant of joint and alternate custody of a child in a marriage in Matrimonial Causes Act or the Matrimonial Causes Rules, 1983.”
The Appellants Counsel cited the provision of Section 71(3) and (4) of the Matrimonial Causes Act
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and submitted that custody cannot be granted to both parties at the same time and that the Act recognizes only custody to one party and access to the other party and not otherwise.”
It was argued that the said provision which is clear and unambiguous should be interpreted according to its ordinary and grammatical meanings and relied on the decision in ACTION CONGRESS v. INEC (2007) 12 NWLR (pt.1048) 222 @ 242.
It was also argued that the Judgment of the lower Court did not contain the mandatory statement as it is prescribed by Section 57(1)(a) of the Matrimonial Causes Act, supra and that by this event, the Judgment did not met the required standard prescribed by the 57(1)(a) of the Matrimonial Causes Act. The Court was urged to allow the appeal.
Before I proceed to resolve these issues, it is expedient that I undertake a review of the Respondents sole issue which I had earlier reproduced. It is my view that, the Appellants issue 6 bears some similarity to the lone issue which the Respondents Counsel has set down for
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determination.
The Respondents Counsel on the lone issue set down for determination argued that the Matrimonial Causes Act fully empowered the Court to act at its absolute discretion make or grant such orders as regards the grant of custody, guardianship, welfare, advancement or education of the child of the marriage.”
It was contended that the lower Court was right in her decision with regard to the orders made on the issues of the custody, welfare, advancement and or education of the only child of the marriage. This submission was predicated on the provision of Section 71 of the Matrimonial Causes Act which the Appellants Counsel has also dwell upon to argue that the orders granted by the learned trial Judge are not recognized by the Act because, custody of a child of marriage that is being dissolved, can only be placed in one of the two parties, while the other party will be granted a right of access to the child.
The said provision is hereby reproduced:
Section 71 (1) In proceedings with respect to the custody, guardianship, welfare, advancement or education of children of a
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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.
(2) The Court may adjourn any proceedings within Sub-section (1) of this Section until a report has been obtained from a welfare officer on such matters relevant to the proceedings as the Court considers desirable and any such report may thereafter be received in evidence.
(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 a party to the marriage.
(4) Where the Court makes an order placing a child of a marriage in the custody of a party to the marriage, or of a person other than a party to the marriage, it may include in the order such provision as it thinks proper for access to the child by the other party to the marriage, or by the parties or a party to the marriage, as the case may be. (Underline is mine for emphasis)
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When I read these provisions, one question which agitated my thoughts is that, although, from the wordings of the provisions, the Court is imbued with a discretionary power, but can it exercise the said powers without recourse to the parties before it? It is the answer to this question which will determine whether the lower Court breached the Appellants right to be fairly heard in relation to the orders granted when read vis-a-vis the reliefs sought in the Petition filed by the Respondent in the lower Court.
The Respondents Counsel in reaction to these provisions vis-a-vis the orders granted by the lower Court submitted that from a careful perusal of all of the provisions under Section 71 of the Matrimonial Causes Act, it is clear that the absolute discretion of the lower Court in the exercise of its powers with regard to issues bordering on custody, guardianship, welfare, advancement or education of the child of the marriage cannot in any way be contested.”
Most of the Respondents Counsels submissions on the provision of Section 71 of the Matrimonial Causes Act were
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on what he termed as absolute discretion, and he submitted that the exercise of the absolute discretion of the Court in this regard is subject only to the Court ensuring that in the exercise of its said discretion the interest of the child of the marriage (as in this present case) is paramount in its consideration. The decision in AFONJA v. AFONJA (1971) 1 U.I.L.R. 105 was cited.
The question which again calls for interrogation is whether any Court of law, imbued with statutory powers such as in this instance, can be exercised based on its own discretion, and if it can do so without hearing the parties on whom or against whom the powers are to be exercised. It is to the extent of the need to accord the parties a hearing in any matter in the exercise of its adjudicatory duty, that the Court can exercise absolute discretionary powers after it would have afforded the parties before it a hearing. The exercise of any such powers without affording the parties a hearing, even when it is based on evidence led, will invariably result in the violation of the right to be heard.
If it were to be otherwise, the Court would not have to
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set the Petition down for hearing, but will on its own, undertake an assessment of what orders it will make in the exercise of its so called absolute discretion in relation to such issues as to custody, guardianship, welfare, advancement or education of a child of a marriage which often are usually the sticky, if not the contentious issues in cases of judicial dissolution of marriage under the Matrimonial Causes Act, supra.
The contentious nature of this issue as to custody of the child was demonstrated by the Answer to Petition for Dissolution of Marriage filed on 15/10/12 (see pages 15 19 of the Record of Appeal) by the Appellant as the Respondent in the lower Court, and when the Respondent herein as Petitioner in the lower Court was served, he also filed a Petitioners Reply to Respondents Answer to Petition. It was filed on 2/11/12 and it is reproduced in pages 24 27 of the Record of Appeal. As if not done with, immediately the Appellant was served with the said Reply to her Answer to the Petition,
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on 19/11/12, the Appellant as the Respondent in the lower Court, filed a Respondents Rejoinder to Petitioners Reply dated 2nd November, 2012. It is reproduced at pages 28 31 of the Record of Appeal.
By the said Answer to the Petition, the Appellant as the Respondent to the Petition, made what can be described as Counter proposals to the concession which the Respondent herein as the Petitioner had made with regard to the issue of custody of the only child of the marriage. Both parties agreed to a dissolution of their marriage, however, the only sticky issue is as regards the details of the custody of the child of the marriage and of its implementation as ordered by the lower Court. The Respondent in the said Answer to the Petition pleads thus:
(ii) An order that the Petitioner be granted restricted access to Olawale Chimele Abegunde (male, born on 18th June, 2009) the child of the marriage to visits only upon prior notice to the Respondent.
(iii) An order that the Respondent be
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given full custody of Olawale Chimele Abegunde (male, born on 18th June, 2009) the child of the marriage, until the child attains the age of twelve (12) years, at which time custody may be shared with the Petitioner having custody of the child during Easter vacation.
(iv) An order that the Petitioner shall be responsible for the payment of school fees and all fees incidental to the educational needs of Olawale Chimelo Abegunde (male, born on 18th June, 2009) the child of the marriage, till the completion of his tertiary education, whilst the Respondent shall be responsible for the maintenance, welfare and advancement of the child of the marriage.
In relation to the orders which the lower Court and which the Respondents Counsel had argued, was based on the absolute discretion of the lower Court vis-a-vis its powers under Section 71(1) (4) of the Act, the Respondents Counsel may be relying on paragraph 3 of the Petitioners Reply to Respondents Answer to Petition and in the said paragraph, the Respondent as the Petitioner in the lower Court avers
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thus at page 27 of the Record of Appeal:
3. The Petitioner urges this Honourable Court to exercise its discretion in favour of the Petitioner and grant the proposed arrangement for the child of the marriage as contained under paragraphs 10 and 11 of the Petition and also grant the prayers as contained in the Petition filed by the Petitioner dated 18th September, 2012.
The Appellant who filed a Rejoinder to the Petitioners Reply to the Answer to the Petition, also in paragraph 3 on page 31 of the Record of Appeal, pleads thus:
3. The Respondent humbly prays this Honourable Court to exercise its discretion in her favour and grant all the orders as sought for in the Answer to the Petition for Dissolution of Marriage dated October 15, 2012; and for such further orders as this Honourable Court may deem fit to grant in the circumstance.
I have advisedly laid out these detailed information as garnered from the Record of Appeal because, the issues which both parties had set down for determination are such that question or affirm the orders
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granted by the lower Court in relation to the custody of the only child of the marriage which orders, the Respondent herein found acceptable, but which the Appellant found objectionable. In either of their respective positions, it is to seek for the intervention of this Court in relation to the orders granted by the lower Court in the exercise of its powers conferred by Section 71(1) (4) of the Matrimonial Causes Act, supra by which the lower Court is empowered to exercise its discretion for the sole and primary interest of the child as its main focus.
The Respondents Counsel also argued, that the lower Court is not bound or restricted to the reliefs sought by the Petitioner once the lower Court has taken full consideration of the primacy of the interest of the child and that it can make such orders as it deems fit and as it reasonably believe would adequately take care of the interest of the child or children of the marriage.”
In paragraph 4.12 of the Respondents Brief, the learned Counsel expatiated on the nature of the orders granted by the lower Court and submitted that the Appellant and the
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Respondent would have a joint custody of the only child of the marriage. Again, the question is: Can the provision of Section 71(1) (4) of the Matrimonial Causes Act, supra, be construed as enabling the Court to grant what was described by the Appellants Counsel as joint custody and alternate custody
The Respondents Counsel argued, in response to these orders, that the very essence of this is to allow the only child of the marriage proper bonding and closeness to both the Appellant and the Respondent. The question again is: Was this issue borne out of the evidence adduced during the hearing? If it was, did the Respondent as the Petitioner apply to amend the reliefs sought to be in line with the evidence led on the issue of bonding between the only child of the marriage and both parties in this proceeding? I have not seen any such amendment in the Record of the proceedings.
The Respondents Counsel argued, that the real objective behind the appeal filed by the Appellant is to frustrate the decision of the lower Court with regard to the grant of joint
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custody and unrestricted access of the Respondent to the only child of the marriage. The question again is: Was this issue borne out of the reliefs which the Respondent who as the Petitioner sought in the lower Court? Were the parties heard by the lower Court as at when it began to re-make or formulate the reliefs which the Respondent as Petitioner sought before it even if it was to bring the said reliefs in line with the evidence led?
When I reflected on the issues which both parties have canvassed and argued in their respective Briefs, the question is whether the lower Court in the exercise of the powers conferred pursuant to the provision of 71(1) (4) of the Matrimonial Causes Act, supra is empowered to grant the reliefs which have become the subject of this appeal. It is a question which can be answered by referring to the reliefs sought by the Respondent as the Petitioner in his Petition as well as the evidence led. The said reliefs read thus:
(i) An Order that the marriage celebrated between the Petitioner and the Respondent on the 20th day of September, 2008 do and shall be
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dissolved upon the grounds stated in Sections 15(1) and 15(2)(f) of the Matrimonial Causes Act (Cap.220 Laws of the Federation of Nigeria, 1990) as disclosed by the facts averred in Petition, with proviso made for an Order of Decree absolute upon the effluxion of time stipulated in the Matrimonial Causes Act after the pronouncement of the Order of Decree Nisi aforesaid.
(ii) That the child of the marriage be retained in the custody and guardianship of the Respondent who shall ensure the continuing education of the said child with proper guidance being given by both parties with the Petitioner being granted unrestricted access to the child during school terms.
(iii) That the Respondent permits the child of the marriage to stay with the Petitioner during school vacation and holidays.
(iv) That the Petitioner shall upon the grant of the Decree/Order, the details of which are given above, be responsible for the payment the sum of N30,000 quarterly to the Respondent for maintenance, welfare, advancement, and/or education of the child of the marriage. (See pages 78 of the Record of Appeal)
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When the provisions of Section 71(1) (4) of the Act are read, applying the literal rule of interpretation of Statute, I have no doubt that the lower Court is imbued with the exercise of discretionary powers which are to be exercised primarily in the interest of the child of the marriage, being its focal consideration and after hearing both parties on their respective evidence.
The question is whether it can grant the orders made in relation to the custody, guardianship, welfare and advancement of the child of the marriage which he had modified in contrast with the reliefs sought by both the Appellant in her Answer to the Petition and the Respondent as the Petitioner without affording both parties a hearing. It is in relation to the failure to hear both parties or at least, the Appellant who felt adversely affected and dissatisfied by the modified reliefs which the lower Court had granted in contrast to the pleaded reliefs in both the Petition and the Answer thereto, that makes the reliefs granted such that are unsustainable because, there is no absolute discretion conferred by
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the provision of Section 71(1) (4) of the Matrimonial Causes Act, supra which dispenses with the obligation on the part of the Court, regardless of its altruistic motives, to hear both parties, or at least, the Appellant before the reliefs claimed were modified in relation to the custody of the only child of the marriage.
In the final analysis, the six (6) issues set down by the Appellant are resolved in her favour, whilst the sole issue donated by the Respondents Counsel, is resolved against the Respondent because, the provision of Section 71(1) (4) of the Matrimonial Causes Act, supra cannot be read or interpreted as conferring such absolute discretion in the lower Court by which it can dispense with hearing the parties when it feels that it needed to modify the reliefs sought by the Respondent as the Petitioner except where the evidence led, can be evaluated in order to reach the conclusions ingrained in the orders granted in the Judgment of the lower Court.
Even then, there is an obligation on the part of the Petitioner to apply to have the reliefs as pleaded in the Petition to be amended in
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order to bring them in line with the evidence led. To do otherwise, is to empower the Court to grant reliefs which the party did not ask for without affording them a hearing. This will be contrary to all known rules and principles of fair hearing and of extant judicial decisions that the Court has no jurisdiction to grant reliefs not asked for by the parties, EKPENYONG v. NYONG (1975) 2 S.C. 71.
Having regard to the provision of the Act on which the Appellant argued her issue 6, and on which the Respondent argued his sole issue, the question which the Court needs to address, is whether it has the requisite materials with which it could re-evaluate the exercise of the discretionary powers which the said provision has conferred and on which both parties in their respective Answer to the Petition and a Reply to the Answer to the Petition have urged the lower Court to exercise its discretionary powers in favour of their proposed reliefs for custody of the child of the marriage. The Appellate Court will not ordinarily interfere with the exercise of a discretionary power by the lower Court except on the judicially recognized grounds
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and unless it is shown that failure to do so is adjudged to be perverse as it may have occasioned a miscarriage of justice. See: Court of Appeals decision in OFFODILE V EGWUATU (2006) 1 NWLR (Pt 961) 421 CA. This Court is however handicapped in being able, notwithstanding an effectual application of the provision of Section 16 of the Court of Appeal Act, 2014, to undertake an assessment of the facts or evidence which the lower Court had before it granted the orders which I had reproduced in relation to the custody of the only child of the marriage. This is because, the Appellant who compiled the Record of Appeal, did not include in it, the record of the proceedings in relation to the evidence led during the trial. It has become difficult, perhaps impossible to assess the facts, factors and evidence beyond the pleaded facts which the lower Court had at its disposal in exercising its discretion the way it did by the orders granted. The non-production of the notes of evidence led in the lower Court, makes it impossible for this Court to answer any or all the questions which I had posed in favour of either parties. The said notes of evidence
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would have enabled this Court, to evaluate the factual basis of the modified orders granted on the issues as to custody of the only child of the marriage.
In the final analysis, the appeal succeeds by setting aside the orders granted by the lower Court in Suit No. HD/300/2012 delivered by O.O. Atilade, J. (as he then was). The case is hereby remitted to the Acting Chief Judge of the Lagos State High Court for the suit to be re-assigned to another Judge of the Family Division of the Lagos State High Court for the issue as to the appropriate orders as to custody to be tried and be determined with the necessary details and protocols for its practical implementation between both parties to be judicially determined. This will take into account, the childs custody or access during the school term days; his weekends; public holidays; Easter vacations; summer recess and Christmas holidays among others. The overall goal of which will enhance a balance in the growing up years of the child and of his mental and social development. It is my sincere hope that these limited proceedings will not be made needlessly protracted by either or both parties in the
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interest of the child of the marriage who is now ten (10) years old having been delivered on 18/6/09.
The appeal succeeds and the case is remitted to the lower Court to be heard on the issues as to custody as I had endeavoured to specify in this judgment.
The Judgment of the lower Court is affirmed on the principal reliefs sought in the Petition by an order dissolving the marriage between the Appellant and the Respondent, and the orders granted as to custody are hereby set aside in order that the issue be retried by another judge.
There shall be no order as to costs, both parties shall bear their respective costs.
MOHAMMED LAWAL GARBA, J.C.A.: I agree
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have the privilege of reading the lead judgment of my learned brother GABRIEL OMONIYI KOLAWOLE, JCA just delivered with which I agree and adopt as mine.
I have nothing more to add.
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Appearances:
For Appellant(s)
A.O. Atanda-Shoremi For Respondent(s)
Appearances
For Appellant
AND
A.O. Atanda-Shoremi For Respondent
