OSALADE v. OSALADE
(2020)LCN/15287(CA)
In The Court Of Appeal
(ADO-EKITI JUDICIAL DIVISION)
On Wednesday, June 10, 2020
CA/EK/73/2017
Before Our Lordships:
Theresa Ngolika Orji-Abadua Justice of the Court of Appeal
Fatima Omoro Akinbami Justice of the Court of Appeal
Paul Obi Elechi Justice of the Court of Appeal
Between
OLUWAFEMI FRANCIS OSALADE APPELANT(S)
And
FOLASADE ADEJOKE OSALADE RESPONDENT(S)
RATIO
CONTENT OF A WRIT OR PETITION OR AN ORIGINATING PROCESS
A Writ or Petition or an originating process contain (a) a plain and short statement of the grounds upon which the Court’s jurisdiction depends unless the Court already has the jurisdiction and the claim needs no new grounds of jurisdiction to support it, (b) a short and plain statement of the claim showing that the pleader is entitled to relief and (c) a demand for judgment for the relief the pleader seeks. Relief in the alternative or several different types may be demanded. The reliefs sought in a matter are the prayers asked for by a litigant at the conclusion of the averments of facts. They are the requests that a party demands of the Court on the basis of the averments of facts contained in the body of the pleadings. Where the reliefs that are relevant and appropriate in the light of the facts contained in the pleading of a party are not asked for, so that even if the case is tried and the claimant’s case is proved, no remedy will enure to the benefit of the claimant, leaving his position unchanged. What goes to trial is the entitlement to the reliefs claimed based on the pleadings. The facts pleaded highlights the cause of action which determines the relief claimed for. The reliefs demand that the cause of action be remedied. If the relief is not claimed for, the claim is aborted. Relief has also been described as the live wire of an action. It puts in specific demanding language, the cause of action. It is the bedrock of an entire action. The action can either stand or fall by the relief sought. PER ORJI-ABADUA, J.C.A.
WHETHER OR NOT PLEADINGS MERE AVERMENTS
Pleadings are mere averments. Every pleading shall contain a statement in a summary form of material facts on which the party pleading relies for his claims. If no relief is claimed in the statement of claim then no issue has been joined by the parties. See Alhaji Onibudo & Ors V. Alhaji Akibu & Ors (1982) 7 SC 60 at 7. It is settled law that it is not for the Court to make a case of its own or to formulate its own from the evidence before it and thereafter to proceed to give a decision based upon its own postulation quite separate from the case the parties made before it. See Adetoun Oladeji (Nig) Ltd V. N.B. Plc (2007) 5 NWLR (Pt.1027) pg. 415. Reliefs must be clear, precise and quantifiable, devoid of speculations. See Doherty V. Doherty (2009) 1 NWLR (Pt.1123) Pg 505. PER ORJI-ABADUA, J.C.A.
WHETHER OR NOT THE TRIAL COURT MUST CONFINE TO THE TERMS OF THE RELIEF SOUGHT
The trial Court must be confined to the terms of the relief sought, as the Court has no jurisdiction to grant any reliefs beyond and outside the relief claimed. In Ekpenyong vs. Nyong (1975) LPELR-1090SC, the Supreme Court, per Ibekwe, JSC., held that “It is trite law that the Court is without the power to award to a claimant that which he did not claim. This principle of law has time and again, been stated and re-stated by this Court that it seems to us that there is no longer any need to cite authorities in support of it. We take the view that this proposition of the law is not only good law, but good sense. A Court of law may award less, and not more than what the parties have claimed. A fortiori, the Court should never award that which was never claimed or pleaded by either party. It should always be borne in mind that a Court of law is not a charitable institution; its duty, in civil cases, is to render unto everyone according to his proven claim.” Also in Salubi vs. Nwariaku (2003) 7 NWLR Part 819 page 426, the Supreme Court, per Ayoola, J.S.C., “It is trite law that the Court normally should not grant a relief not sought by the parties. Where a party makes averments but such averments do not relate to any relief sought in the case, the Court will not grant a relief which would have followed the averments without an amendment of the claim. In this regard, the opinion of Ige, JCA, in the case represents the correct view when she said:
“The trial Court was asked to set aside the Letters of Administration earlier granted to 1st defendant and their mother PW1. This was rightly granted by the learned trial Judge in his judgment. He also ordered the Probate Registrar to give effect to the quantum of distribution above stated. Upon a dose examination of the quantum of the distribution, it is very clear that the learned trial Judge proceeded to distribute the estate himself thereby giving the plaintiff what she did not ask for. This is wrong hence his distribution of what he regarded as the properties of the deceased must be set aside as a nullity. The Court below should have confined itself to the terms of the relief sought. The letters of administration granted to the 1st defendant has been set aside and there has been no appeal from that decision. The applicable law for the distribution of the estate having been ascertained and stated, that should have been the end of the matter having regard to the plaintiff’s claim. The orders made by the Court below that the probate registrar should supervise the valuation of the assets of the estate and take charge of the estate were not claimed and cannot be consequential to a declaration of the applicable law. I am of the opinion that the letter of administration granted to the 1st defendant having been set aside, it is left to the beneficiaries to take appropriate steps for the due administration of the estate. To proceed to proffer suggestions as to what steps may be available to them may be interpreted as a directive of this Court and may lead to further confusion. If an advice were to be proffered, it is that consensual approach to the administration of the estate and the distribution of the assets is always a preferred option, if achievable. A consequence of adopting that option may well lead to transfer of the estate by consent of the beneficiaries and the Administrator-General to the Administrator-General, adapting Section 32(1) of the Administration of Estates Law to meet the special circumstances of the case.”PER ORJI-ABADUA, J.C.A.
THERESA NGOLIKA ORJI-ABADUA, J.C.A. (Delivering the Leading Judgment): The matrimonial causes proceedings leading to this appeal was commenced by the Respondent against the Appellant claiming thus:
“1. An Order of dissolution of marriage contracted between the Petitioner and the Respondent on the ground that the marriage had broken down irretrievably.
2. An Order of the Court mandating the Respondent to pay all School fees and money to buy books needed by the children to the Court Registry.
3. An Order that the Respondent should pay to the Petitioner the sum of N10,000,000.00 being damages for the psychological trauma and emotional distress occasioned by the Constant beating of the Petitioner and adulterous and reckless life of the Respondent with his mistress which is committed against the Petitioner.
4. An Order of the Court mandating an Estate Valuer to evaluate the houses jointly built by Petitioner and Respondent.
5. An Order of Court ordering the sharing of joint properties owned by the Petitioner and the Respondent where the Respondent insists on marrying her(sic) mistress or any other lady.
Upon being served with the Petition, the Appellant then filed his answer and Cross-Petition on the 16th September, 2015 wherein he averred inter alia that he as the Respondent Cross-Petitioner has been solely responsible for the education and maintenance of his children and shall continue to do so. The Petitioner is a bad influence on the children and has no moral obligation to offer or teach them and has failed in her responsibility even by her conduct in this matter. The Respondent shall take full custody of the three children of the marriage and take full and absolute charge of their maintenance the Petitioner having failed as a mother. The Respondent Cross-Petitioner does not oppose the dissolution of the marriage. The allegation or order for damages for psychological trauma is self induced and self inflicted if any and should be discountenanced. He then sought the following reliefs:
“(i) An Order of the dissolution of the marriage between the Respondent Cross-Petitioner and the Petitioner since the Respondent Cross-Petitioner cannot reasonably be expected to live with the Petitioner the said marriage having broken down irretrievably.
(ii) A declaration that there is no joint property between the Respondent Cross-Petitioner between the Petitioner/Respondent.
(iii) A declaration that the two houses built by the Respondent (one of which is yet to be completed) respectively lying being and situate at Egbewa and Ajebandele Ado-Ekiti solely belong to the Respondent Cross- Petitioner.
(iv) An Order of perpetual injunction restraining the Petitioner from laying any claim to the two buildings now, forthwith and henceforth.
(v) An Order on the Respondent Cross-Petitioner to take custody of the three children of the who are respectively over 6 years old with access to visit them by the Petitioner at reasonable hours of specific days of the week.
(vi) An Order of perpetual injunction restraining the Petitioner, her agents, servants and privies from interfering with and or disturbing the disturbing the Respondent Cross-Petitioner’s activities in whatever manner or anywhere at all now forthwith and henceforth.
The Petitioner filed the Petitioner’s Answer to Respondent’s Answer and Cross-Petition on 15/10/2015. The Respondent filed a Rejoinder to the Petitioner’s Answer to Respondent’s Answer and Cross-Petition on 9th November, 2015. After the hearing conducted at the lower Court, the lower Court delivered its judgment on the 21st October, 2016 and held thus:
“Outside the documentary evidence tendered in the course of trial, conduct of the parties to the marriage, and the entire history of the particular union had been taken into consideration to arrive at a just and equitable decision on the ownership of the properties. It is in consideration of the above reasons that I declare that the buildings on No. 8 Egbewa Road, Off Ilawe, Road, Ado Ekiti, and the uncompleted duplex building at Covenant Avenue, Off Ikere Road, Ado Ekiti are as of the joint effort of the Petitioner and the Cross-Petitioner. The properties belong to both parties, that is the Petitioner and the Cross- Petitioner. It would be unjust to order the injunctive relief sought by the Cross- Petitioner on leg 4 of her reliefs. Leg 4 of the reliefs sought fails. On leg 5 of the reliefs sought, there is no basis for me to alter the existing arrangement on custody of the children. I do not have evidence why the existing arrangement on custody of the children to either party should be discontinued.
None of the parties gave negative report of either party having a contagious disease, immorality, or cruelty towards the children. I also do not have evidence that the education of the children is affected, or the accommodation they have is not conducive. Consequently, custody of Oreoluwa Anthonia Osalade, a female and Inioluwa Bernard Osalade, a male, both children of the marriage is hereby granted to the Petitioner, while custody of Temiloluwa Anthony Osalade, a male who is presently in custody, of the Cross-Petitioner is hereby granted to the Cross Petitioner … see pages 249-252.”
The Appellant was granted an extension of time to appeal against the said judgment on 27/9/2017. It was pivoted on six grounds of appeal. The Appellant excogitated four issues for determination in this appeal which the Respondent in turn adopted. They are thus:
“1. Whether the order of custody of Oreoluwa Anthony Osalade and Inioluwa Bernard made in favour of the Respondent was asked for or justified.
2. Whether the award of (N20,000.00) Twenty Thousand Naira against the Appellant by the Learned trial Judge is supported by evidence.
3. Whether the building at No. 8 Egbewa Road, off Ilawe Road, Ado Ekiti and the duplex building on Covenant Avenue, off Ikere Road, Ado Ekiti are joint properties of the Appellant and the Respondent.
4. Whether the declaration made on the buildings at No. 8 Egbewa Road, off Ilawe Road, Ado Ekiti and the duplex building on Covenant Avenue, off Ikere Road, Ado Ekiti was specifically asked for and if not whether a Court can grant to a party what the party has not asked for.
In respect of issue No. 1 touching on the custody of the two children awarded to the Petitioner, it was argued that the Respondent herein did not pray for custody of any of the children of the marriage. He reproduced the reliefs sought by the Respondent and stated that only the Appellant prayed for custody of the children in his relief (v) that is for “an Order on the Respondent Cross-Petitioner to take custody of the three children of the marriage who are respectively over 6 years old with access to visit them by the Petitioner at reasonable hours of specific days of the week.” He pointed that the facts in support of the relief were pleaded at paragraph 12(a)-(d) of the Appellant’s Answer and Cross-Petition which corresponded with the Appellant’s assertions in his Written Deposition on Oath. It was then contended that the Order granting custody of the two children to the Respondent was not asked for by the Respondent, the Petitioner, and ought not have been made at all. He referred to the cases of Olokun vs. Aiyelabegan (2004) 2 NWLR Part 858 page 504 at 514; Auta vs. Olaniyi (2004) Part 863 page 394 at 422 and Tanko vs. Mai-waka (2010) 1 NWLR Part 1176 page 487-488 and submitted that since it was the Appellant who prayed for custody of the children and gave cogent evidence as to why the same ought to have been granted to him and more so when the Appellant’s Relief was never challenged nor opposed by the Respondent which on its own amounts to an admission, custody of the children should have granted to him without any hassle at all.
On the award of N20,000.00 damages against the Appellant, it was contended that Exhibits OS4 and OS5 series which were photographs a bundle of attachment were inadmissible. He argued that Exhibit OS4 series are three photographs which were inadmissible by virtue of Section 84 of the Evidence Act. He stated that the photographs are computer generated documents and as such failure to comply with Section 84 of the Evidence Act is fatal. He mentioned the cases of Impact Solutions Ltd vs. Int’l Breweries Plc (2018) 16 NWLR Part 1645 page 377 at 398; Ita vs. Ekpenyong (2001) 1 NWLR Part 695 page 587 at 613; Thompson vs. Arowolo (2003) 7 NWLR Part 818 page 163 at 204-205; Ekpo vs. State (2001) 7 NWLR Part 712 page 292 at 304; Jiwul vs. Dimlong (2003) 9 NWLR Part 824 page 154 at 186- 187; and Gaji vs. Paye (2003) 8 NWLR Part 823 page 583 at 605 and further submitted that the evidence proffered via PW1, PW2, PW3 and PW4 is all hearsay since PW1 did not know the contents of Written Statement on Oat because his eyes were so bad which puts in question how indeed did he sign the document, secondly, PW2 was told by neighbours that her sister, the Respondent was beaten by the Appellant, PW3 was briefed by the Respondent as to what transpired, and fourthly, PW4 said he did not with parties but was told what happened in the home of the parties. Learned Counsel submitted that there is abundant and unchallenged evidence that the Respondent had dandruff and that the Appellant never raised his finger on the Petitioner let alone pulling her hair from the root. It was stressed that assault, battery or act of beating and cruelty are criminal allegations which must be proved beyond all reasonable doubt, the porous and hearsay evidence of the PW1-4 did cast a huge doubt on the case of the Respondent. He said too that there is no evidence that the Appellant assaulted the Respondent. He referred to paragraphs 8, 9, 10(a), 11(j) and (r) and 15 of the Appellant’s Written Statement on Oath the assertions which it was argued were not challenged during cross-examination and which amounted to admission. It was summed up that he was a caring, loving and benevolent husband who pampered the Petitioner throughout and did not at anytime beat nor assault her. He said that evidence which was not challenged during cross-examination amounts to an admission and therefore he is entitled to the determination of issue 2 in his favour.
On issue No. 3 which queried whether the buildings at No. 8 Egbewa Road, Off Ilawe Roa, Ado-Ekiti and the duplex building on Covenant Avenue, Off Ikere Road, Ado-Ekiti are joint properties of the parties, it was contended that the parties do not own any property jointly in that that the property at No. 8 Egbewa Road, Off Ilawe Roa, Ado-Ekiti was built between the year 2000 and 2001 while the duplex building on Covenant Avenue, Off Ikere Road, Ado-Ekiti belongs to the Appellant alone. Paragraphs 3, 11(d), (e), (f), (g), (h), (I), (m), (n), (P)(iv), (t), (u), (w), 15(c), 16(e), (f), 17(e), (f), (g), (h), (j), (I), (m), (o) and (p) of the Appellant’s Written Statement on Oath were referred to and it was contended that much as the Appellant conceded that the house at No. 8 Egbewa Road, Off Ilawe Roa, Ado-Ekiti was built between 2001 and 2001, the fact is that it was not built during the period of cohabitation of the Appellant and the Respondent, that the parties did not cohabit until the year 2007 when they got married and that the Respondent only commenced gainful employment around 2006. He drew the attention of this Court to Exhibit OS3 dated the 13th October, 2007 being the Marriage Certificate issued to the parties at the time of their marriage which portrayed the addresses of the parties at the time of their marriage as i.e. Oluwafemi Francis Osalade resident at Egbewa Street, off Ilawe Road, Ado-Ekiti, and Folasade Adejoke Falegan residing at Ajilosun Street, Ado-Ekiti, and then submitted that the finding of the lower Court that the Petitioner made available to the Respondent the sum of N30,000.00 for the purchase of land in the year 2000 and during which year they cohabited as husband and wife is contrary to the documentary evidence before it, is a perverse judgment and cannot be allowed to stand based on the decision in EKEOWA VS. N.C.C. PLC Nkalagu (2009) NWLR Part 1113 page 289 at 302. Learned Counsel further made reference to Exhibits OS12 and OS13 being the purchase receipts of the lands upon which the two houses were built evidencing the purchase of the lands by him personally. He said that the Appellant owns the land everything on the lands. He relied on the decision in Gaji vs. Paye (supra) at 607- 608 in support. Learned Counsel referred to Exhibits OS14(l- 10) series and OS17(l-32) series which evidenced that only the Appellant built the property or duplex without a dime contribution from the Respondent. He submitted that the evidence of joint property by the Respondent was concocted, manufactured, invented false and unfounded and he urged this Court to disbelieve the Respondent on this aspect. Learned Counsel referred to F.M.F vs. Ekpe (2004) 2 NWLR Part 856 page 100 at 120; Ndulue vs. Ojiakor (2013) 8 NWLR Part 1356 page 311 at 328; Kazeem vs. Mosaku (2007) 17 NWLR Part 1064 page 523 at 534 and Karimu vs. Lagos State Govt (2012) 5 NWLR Part 1294 page 620 at 643 and submitted that the history of any marriage between a couple begins or commences from the date of marriage and not before and in that instant, it is imperative to note that the parties wedded in 2007. Before the wedding, the Appellant constructed the property at Egbewa Road between 2000 and 2001 and the property at the Covenant Avenue was commenced by the Appellant before he married the Respondent in 2007. He referred to the Respondent’s evidence as PW5 in which she confirmed that that the parties were resident together in 2007 in Egbewa and since the marriage they lived together at No. 8 Egbewa Road, Ado Ekiti which he argued corroborated Exhibit OS3, the Certificate of Marriage. He further reproduced the averments at paragraphs 2, 4 and 5(a) of the Respondent’s Petition where it was stated that the Petitioner then a spinster as lawfully to the Respondent then a bachelor at the Marriage Registry, Ado Ekiti Local Government Ado-Ekiti and that they cohabited at their No. 8 Egbewa Road residence since their marriage and then submitted that evidence of joint property ownership by the parties is concocted and unfounded. He further argued it is speculative for the trial Court to have held that a woman in marriage would be unmindful or keeping receipts or documents and then relied on oral evidence and the conduct of the parties and the entire history of the marriage on the settlement of properties while ignoring documentary evidence. He urged this Court to allow the appeal.
Then in relation to the declaration made by the Court, learned Counsel called the attention of this Court to the declaration made by the lower Court as shown on page 250 of the record of appeal that “the four bedroom apartment which was the matrimonial home of the parties, the three bedroom apartment, the two bedroom apartment all situated on No. 8 Egbewa Road, off Ilawe Road, Ado-Ekiti and the uncompleted duplex building on Covenant Avenue, off Ikere Road, Ado Ekiti, are as a result of the joint effort financial, material and emotional contribution of the Petitioner and the Cross- Petitioner and that the properties are joint properties of both parties. He further referred to reliefs 4 and 5 of the Respondents as articulated in her petition for dissolution of the marriage which specifically sought for an order of the Court mandating an Estate Valuer to evaluate the houses jointly built by the Petitioner and the Respondent; and for order of Court ordering the sharing of joint properties owned by the Petition and the Respondent where the Respondent insists on marrying her(sic) mistress or any other lady. Learned Counsel also made reference to the remarks of the lower Court over the said reliefs 4 and 5 depicted at page 238 of the record then refraining to make any order on them as they were dependent on the Respondent before it marrying his mistress or any other lady and there was no evidence before it of such plan or occurrence. To further buttress the Appellant’s contentions, he referred to reliefs 2 and 3 of the Appellant’s Cross-Petition whereat the Appellant prayed for “A declaration that there is no joint property between the Respondent Cross-Petitioner between the Petitioner/Respondent; and A declaration that the two houses built by the Respondent (one of which is yet to be completed) respectively lying being and situate at Egbewa and Ajebandele Ado-Ekiti solely belong to the Respondent Cross-Petitioner”, and then argued that none of the parties sought for the declarations made by the trial Court and that there is no correlation between the said declarations made by the lower Court and reliefs 2 and 3 of the Appellant’s Cross-Petition. He cited the decision in Novartis Pharma Serv. Inc vs. Swissco (Nig) Ltd (2004) 2 NWLR Part 856 page 28 at 50 and submitted that the Court cannot grant a relief not sought for by a party as the Court is not a Father Christmas. He therefore urged the Court to allow the appeal and set aside the judgment of the lower Court as it relates to the said properties.
The Respondent’s learned Counsel, O. R. Agbede, Esq., in her Brief of Argument contended that by paragraph 12 of her Petition for a decree of dissolution of marriage, the Respondent who was the Petitioner at the lower Court, specifically prayed for the custody of the first and last children of the marriage and for them to be living with her but with a restricted right of the Respondent to visitation on specified period. He further referred to paragraph 3(b), (m), (rv), (7)c and (7)e of her answer to the Appellant’s Cross-Petition where it was pleaded that the Petitioner packed out of the matrimonial home with the children as a result of the Respondent’s verbal taunting that “it is the wife that you like that you can love her children”. The Respondent had at times and occasion thrown and locked out the Petitioner and her children outside their matrimonial home as the facts will be attested to by the children. The Respondent has been a failure when it comes to fatherly affection and care towards the children. He has always maltreated them and the scars on the children’s body will be evidence in Court as they will testify. The Respondent has no time to take care of the children as he has since kept the second child forcefully removed from the Petitioner’s care with his brother’s wife who can never take care of the child like his biological mother. The Respondent is an animal who cannot take of the children but always maltreat them and as such the Petitioner is asking for their custody but with the privilege of visitation to the Respondent at specified period. It was asserted that credible evidence was led in proof of the averments at paragraphs 18, 27, 28, 68, 41, 48 and 50 of her Written Statement on Oath. It was contended that none of the averments regarding the custody and depiction of the Appellant’s attitude towards the children was controverted during the cross-examination of the Petitioner as PW5 meaning that the averment were admitted by the Appellant. He referred to the cases of Cameroon Airlines vs. Otutuizu (2011) 8 WRN 1 at 34 lines 35-40 ratio 13, Odulaja vs. Haddad (1973) 1 All NLR 191, Nwabuoku vs. Ottih (1961) All NLR Part 2 page 489; Nanna vs. Nanna (2006) 3 NWLR Part 66 page 1 at 44; Odogwu vs. Odogwu (1992) 2 NWLR Part 225 page 539 at 559-560; Akinbuwa vs. Akinbuwa (1998) 7 NWLR Part 559 page 661 at 675-676 and submitted that where evidence given by a party in proceedings is not challenged by the party who had the opportunity to do so, the Court ought to act positively on the unchallenged evidence before it, therefore the evidence of the Petitioner on the averment remains good and credible.
He pointed out that custody of children of marriage is not granted as matter of cause but certain things must be taken into consideration. He said that by Section 71(1) of the Matrimonial Causes Act, 1970 cannot be quantified in terms of material things such as money or food but must of necessity promote the happiness and security which a child of tender age requires. Also by Section 70(1) the Court shall regard the interest of the children of the marriage as the paramount consideration Andorra a child, in awarding custody of a child, the Court will considered the care of the child’s person, morally, physically and mentally. He further mentioned paragraphs 7c of the Petition and 43 of the Petitioner’s Further Written Statement on Oath where it was stated that the child he forcefully took from her was left with his elder brother and that the Respondent behave like animal, and then submitted that the trial Court was right in awarding custody of the two children of the marriage to the Petitioner and then urged this Court to resolve this issue in favour of the Respondent.
On the second issue bordering on the award of N20,000 damages against the Appellant, paragraph 9 (g), (l), (q) and (t) under the Facts of the Marriage and paragraphs 6, 7, 9, 18, 20, 22 and 30 of the Petitioner’s Written Statement on Oath and paragraphs 3(b), 4, 4(b), 5, 6(m), r(ii) of the Petitioner’s Answer to the Respondent’s Answer and Cross-Petition and the Petitioner’s evidence of the cruelty of the Appellant towards the Petitioner also proffered during her cross-examination that the Respondent assaulted her, she was taken to hospital by the late Omoleye Aderiye, she had mark on her face and she took a photograph of the same so as to it to her children, and that the Respondent pulled her hair and threatened to cut her neck with a knife, and which evidence was corroborated by the evidence of PW2 shown at paragraphs 5, 6, 9, 11 and 13 of her Written Statement on Oath and evidence under cross-examination at pages 144-145 of the record, the evidence of PW3 and PW5 on the issue of cruelty of the Respondent towards the Petitioner, and contended that there is ample evidence of cruelty on the part of the Appellant towards the Petitioner. Learned Counsel referred to the definition of the word “cruelty” in the Black’s Law Dictionary, 9th Edition Page 434 as “the intentional and malicious infliction of mental or physical suffering on a living creature especially human, abusive treatment, outrage” and the cases of Nanna vs. Nanna (supra); Adaramaja vs. Adaramaja (1962) 1 SCNLR 376; NICON Hotels Ltd vs. Nene Dental Clinic (2007) 3 WRN 45 at 76-78; CBN vs. Ahmed (2004) 15 NWLR Part 897 page 591; Mobil Oil Nig. Ltd vs. Akinfosile (1969) 1 NMLR 217 and Cameroon Air Lines vs. Otutuizu (supra) where it was held that damages are the pecuniary compensation or award given by law to a person who has suffered loss or injury whether to his person property through the unlawful act or omission of another. He then submitted that the trial Court was right in its award of damages in favour of the Petitioner as a result of the injuries she suffered from the conduct of the Appellant. He referenced the evidence of PW5 (the Petitioner) where she said that the Respondent assaulted her on several occasions and she showed the Court the marks/wound on the thigh. He invited this Court to increase and/or review the sum N20,000.00 awarded as it is insufficient for the cost of litigation. He relied on the Nicon Hotels Ltd’s case (Supra) Momodu vs. University of Benin (1997) 7 NWLR Part 512 page 325; Obere vs. Board of Managemen Eku Baptist Hospital (1978) 6-7 SC 1 and Makonde vs. Omaghomi (2010) 35 WRN 118 at 141-142 and persuaded this Court to resolve this issue in favour of the Respondent.
In relation to issue three concerning the buildings at No. 8 Egbewa Road, of Ilawe Road, Ado Ekiti and the duplex building on Covenant Avenue, off Ikere Road, Ado Ekiti, paragraph 9 sub-paragraphs a, b, c, d, e, p, w, x, y, gg and hh, paragraph 8c, d, e, f, g, h, i and j of her Petition, paragraphs 12, 13, 14, 15, 16, 34, 35, 43 and 44, paragraphs 49, 50, 51, 53, 54, 55 and 56 of the Petitioner’s further Written Statement on Oath, evidence of PW5 under cross- examination where the Petitioner said that she contributed the sum of N800,000.00 towards the construction of the duplex. He said there is sufficient evidence that both the Respondent and Appellant are joint owner of their three buildings. The parties jointly built the three buildings when their relationship was cordial. The Petitioner said that she gave him money as a wife but she never documented any of them because she was not expecting divorce. He cited the cases of Coker vs. Coker (1964) LLR 188, Egunjobi vs. Egunjobi (1974) ECSLR 552 at 642; Adaku Amadi vs. Edward Nwosu (1992) 6 SCNJ 59 at 67-68; Elendu vs. Ekwoaba (1995) 3 NWLR Part 380 page 704 at 745; Sule vs. Orisajimi (2007) 35 WRN 94 at 143; Sections 20, 21 and 24 of Evidence Act, 2011, and the evidence of RW2 under cross-examination that at the time of purchase of the land, the parties were cohabiting together which he argued amounted to an admission and should be invoked against the Appellant. He made reference to Ajayi vs. Saipan (2004) 46 WRN 35 at 51; Akaninwo vs. Nsirim (2008) 20 WRN 99 at 155; Onyenge vs. Ebere (2004) 13 NWLR Part 889 page 20; Ejimadu vs. Delta Freeze Ltd (2007) 13 NWLR Part 1050 page 96 at 110; Incar Nig. Plc vs. Bolex Enterprises (2001) 12 NWLR Part 728 page 646 at 668; Section 72(1) of the Matrimonial Causes Act, 1970, and Akinbuwa vs. Akinbuwa (1998) 7 NWLR Part 559 page 661 at 676-677 and submitted that admission against interest is relevant and admissible i.e. admission against interest made by a party or his privy is the best evidence in favour of his adversary in a suit. He said that the parties were not only cohabiting as a husband and wife since the year 2000, but they were equally having children and had their first child in the year 2001. He referred to certain lies told by the Appellant under cross- examination that they started cohabitation on the 13th October, 2008 and when Exhibit OS3, the Marriage Certificate, he read out 13th October, 2007 and submitted that the Appellant had not only given inconsistent evidence but lied on material facts. He submitted that it is an established law that where a witness has given an inconsistent evidence or lied on material facts, his testimony should not be relied upon or believed by the Court. He stated that the Court has inherent power to make settlement of properties for the benefit of either of the spouse and that in the settlement of property in matrimonial proceedings, the Court is enjoined to consider the evidence adduced by the parties at the trial in acquisition of the properties. He prayed this Court to resolve issue 3 in favour of the Respondent.
In respect of issue No. 4, that is, whether the declaration made on the buildings at No. 8 Egbewa Road, off Ilawe Road, Ado Ekiti and the duplex building on Covenant Avenue, off Ikere Road, Ado Ekiti was specifically asked for and if not whether a Court can grant to a party what the party has not asked for, learned Counsel referred to reliefs 4 and 5 sought by the Petitioner now the Respondent in her Petition. In the reliefs, she sought for an order of the Court mandating an Estate Valuer to evaluate the houses jointly built by the Petitioner and the Respondent, and an order of the Court ordering the sharing of joint properties owned by the Petitioner and the Respondent where the Respondent insists on marrying his mistress or any other lady. The Court in its judgment declared that the houses are as result of joint efforts, financial, materials and emotional contribution of the Petitioner and the Cross-Petitioner, and the properties are joint properties of both parties. Learned Counsel then submitted that the declaration made by the lower Court is different from what the Petitioner pleaded at paragraph 9d of her Petition and that by the decision in Ibrahim vs. C.O.P (2008) 1 WRN 22 at 36-37; Ajayi vs. Military Administrator Ondo State (1997) 5 NWLR Part 504 page 237, and Section 16 of the Court of Appeal Act, and Order 3 Rule 23(1) of the Court of Appeal Rules, this Court has the power to give any judgment or make any order that ought to have been made and to make such further or other order as the case may require including any order for costs as if the proceedings had been instituted in this Court as a Court of first instance. He then urged this Court to dismiss this appeal.
The first issue raised relates to the Order made by the lower Court granting custody of Oreoluwa Anthonia Osalade and Inioluwa Bernard Osalade to the Respondent. As rightly observed by the Appellant’s Counsel, there was no prayer in the reliefs column of the Respondent’s Petition for Decree of Dissolution of Marriage between the parties asking for an Order of the Court granting custody of the said children to the Respondent/Petitioner. The Respondent in this appeal has contended that by virtue of the averment at paragraph 12 of the Petition captured under the heading of “Proposed Arrangement for the Children, she unequivocally indicated her prayer for custody of the said children. It must be stated that paragraph 12 of the said Petition did not feature under the Claims of the Petitioner or Reliefs sought by her. Undoubtedly the Respondent/Petition made an averment at the said paragraph 12 of her Petition that “the children have been living together with both the Petitioner and the Respondent since birth but the Petitioner wants the custody of the first and last children for them to be living with her but with a restricted right of the Respondent to visitation on specified periods.”
It is conspicuous in the said paragraph 12 of the Petition filed by the Respondent herein at the lower Court that she merely expressed her intentions to have custody of the said two children. It was a mere expression of intention by the use of the qualifying word “want”. She averred that she “wants’ to have the custody of the said two children. The word “want” as defined by the Oxford Advance Learner’s Dictionary 9th Edition means “To have a desire or wish for something”. It is trite that a case is fought on the relief or reliefs sought. A case is not fought outside the reliefs sought. See Otun vs. Otun (2004) 14 NWLR Part 893 page 38. So where there is no relief sought in a case, the Court would have no jurisdiction to award any. Where averments do not support a claim, the Claim must fail. Also, no Court is allowed to grant a relief not sought by a party. A Writ or Petition or an originating process contain (a) a plain and short statement of the grounds upon which the Court’s jurisdiction depends unless the Court already has the jurisdiction and the claim needs no new grounds of jurisdiction to support it, (b) a short and plain statement of the claim showing that the pleader is entitled to relief and (c) a demand for judgment for the relief the pleader seeks. Relief in the alternative or several different types may be demanded. The reliefs sought in a matter are the prayers asked for by a litigant at the conclusion of the averments of facts. They are the requests that a party demands of the Court on the basis of the averments of facts contained in the body of the pleadings. Where the reliefs that are relevant and appropriate in the light of the facts contained in the pleading of a party are not asked for, so that even if the case is tried and the claimant’s case is proved, no remedy will enure to the benefit of the claimant, leaving his position unchanged. What goes to trial is the entitlement to the reliefs claimed based on the pleadings. The facts pleaded highlights the cause of action which determines the relief claimed for. The reliefs demand that the cause of action be remedied. If the relief is not claimed for, the claim is aborted. Relief has also been described as the live wire of an action. It puts in specific demanding language, the cause of action. It is the bedrock of an entire action. The action can either stand or fall by the relief sought.
In the instant appeal, the Respondent at paragraph 12 of her Petition expressed the desire to have the custody of the said children mentioned therein but there is no crystallisation of that in the form of a relief. There is no specific relief under the column for reliefs seeking for an order of the Court awarding custody of the children mentioned at the said paragraph 12 of her Petition to her. It is well established that a trial Court cannot go outside the claims or reliefs before it. The Court has a duty to only adjudicate on claims or reliefs placed by parties before it. There is a difference between pleadings and reliefs claimed. Pleadings are mere averments. Every pleading shall contain a statement in a summary form of material facts on which the party pleading relies for his claims. If no relief is claimed in the statement of claim then no issue has been joined by the parties. See Alhaji Onibudo & Ors V. Alhaji Akibu & Ors (1982) 7 SC 60 at 7. It is settled law that it is not for the Court to make a case of its own or to formulate its own from the evidence before it and thereafter to proceed to give a decision based upon its own postulation quite separate from the case the parties made before it. See Adetoun Oladeji (Nig) Ltd V. N.B. Plc (2007) 5 NWLR (Pt.1027) pg. 415. Reliefs must be clear, precise and quantifiable, devoid of speculations. See Doherty V. Doherty (2009) 1 NWLR (Pt.1123) Pg 505. The trial Court must be confined to the terms of the relief sought, as the Court has no jurisdiction to grant any reliefs beyond and outside the relief claimed. In Ekpenyong vs. Nyong (1975) LPELR-1090SC, the Supreme Court, per Ibekwe, JSC., held that “It is trite law that the Court is without the power to award to a claimant that which he did not claim. This principle of law has time and again, been stated and re-stated by this Court that it seems to us that there is no longer any need to cite authorities in support of it. We take the view that this proposition of the law is not only good law, but good sense. A Court of law may award less, and not more than what the parties have claimed. A fortiori, the Court should never award that which was never claimed or pleaded by either party. It should always be borne in mind that a Court of law is not a charitable institution; its duty, in civil cases, is to render unto everyone according to his proven claim.” Also in Salubi vs. Nwariaku (2003) 7 NWLR Part 819 page 426, the Supreme Court, per Ayoola, J.S.C., “It is trite law that the Court normally should not grant a relief not sought by the parties. Where a party makes averments but such averments do not relate to any relief sought in the case, the Court will not grant a relief which would have followed the averments without an amendment of the claim. In this regard, the opinion of Ige, JCA, in the case represents the correct view when she said:
“The trial Court was asked to set aside the Letters of Administration earlier granted to 1st defendant and their mother PW1. This was rightly granted by the learned trial Judge in his judgment. He also ordered the Probate Registrar to give effect to the quantum of distribution above stated. Upon a dose examination of the quantum of the distribution, it is very clear that the learned trial Judge proceeded to distribute the estate himself thereby giving the plaintiff what she did not ask for. This is wrong hence his distribution of what he regarded as the properties of the deceased must be set aside as a nullity. The Court below should have confined itself to the terms of the relief sought. The letters of administration granted to the 1st defendant has been set aside and there has been no appeal from that decision. The applicable law for the distribution of the estate having been ascertained and stated, that should have been the end of the matter having regard to the plaintiff’s claim. The orders made by the Court below that the probate registrar should supervise the valuation of the assets of the estate and take charge of the estate were not claimed and cannot be consequential to a declaration of the applicable law. I am of the opinion that the letter of administration granted to the 1st defendant having been set aside, it is left to the beneficiaries to take appropriate steps for the due administration of the estate. To proceed to proffer suggestions as to what steps may be available to them may be interpreted as a directive of this Court and may lead to further confusion. If an advice were to be proffered, it is that consensual approach to the administration of the estate and the distribution of the assets is always a preferred option, if achievable. A consequence of adopting that option may well lead to transfer of the estate by consent of the beneficiaries and the Administrator-General to the Administrator-General, adapting Section 32(1) of the Administration of Estates Law to meet the special circumstances of the case.”
However, in Nneji vs. Chukwu (1988) 3 NWLR Part 81 page 184, the apex Court via Oputa, J.S.C., recognised the general position of the law that a Court should not give to a party what he has not claimed, but went further to hold that where the relief or order appears incidentally and is necessary for a proper and just determination of the cause, such an order or relief could be made or awarded though not claimed. The Appellant was the one who sought for custody of the said two children but it is curious that the lower Court in its consideration of the issues raised by the parties and the reliefs sought by them did not take cognisance of that fact. With regard to the issue of custody of the children of the marriage, the lower Court stated at page 249 of the record thus: “I do not have evidence on why the existing arrangement on custody of the children to either party should be discontinued. None of the parties gave negative report of either party having a contagious disease, immorality or cruelty towards the children. I also do not have evidence that the education of the children is affected or the accommodation they have is not conducive.” After this finding, and notwithstanding that the Respondent did not specifically demand or pray for the custody of the other two children of the marriage, the lower Court proceeded to grant custody of the said children, namely, Oreoluwa Anthonia Osalade, a female, and Inioluwa Bernard Osalade, a male, both children of the marriage, to the Respondent. I would have thought that since there was no finding of cruelty, immorality, etc on the part of the Appellant who specially asked for the custody of those children, the lower Court ought to have granted the custody of those children to him. The Court did not state why it awarded the custody of the said children to the Appellant who did not ask for the same. Having not sought for custody of the said two children in the reliefs contained in her Petition for Dissolution of their said marriage, the trial Court ought not to have granted her custody of the said two children. It may seem that granting of the same to the Respondent amounted to denial of justice to the Appellant.
Be that as it may, it has been severally stated which was primarily based on the provisions of Section 71(1) of the Matrimonial Causes Act, 1970 that in award of custody of the children of the marriage, the welfare of the children of the marriage is the first and paramount consideration. In deciding what order would be in the best interest of the children of the marriage, a number of factors have to be borne in mind. They are (1) 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, (7) the parties’ conduct, etc. It should be noted that retention of existing position appears to be the paramount consideration. As it relates to sex and ages of the said children, custody is usually granted to their mother as she is in a better position to have the care and control of young or sickly children particularly little girls. It should also be borne in mind that it is generally desirable to keep brothers together and not split the family up more than is necessary. On the factor of accommodation and material advantages, 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 his material prospects with which the Court is concerned. However, a person’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 can make to them looked after. Furthermore, the fact that the child has lived for some time with one parent may in itself be a good for not moving him. It is important that should have as stable a home life as possible. The Court also tries to avoid imposing yet another move on a child who had already been moved about a great deal.
As per the record of this appeal, the said children as at the time the Petitioner filed the Petition in August, 2015 were 14 years and 9 years respectively. Then from August, 2015 to May, 2020 is about 5 years, to be precise 4 years 9 months. The said children by the reason aforesaid are not in the least infants requiring special attention of the Respondent. The reason why the lower Court split the custody of the three children of the marriage seem a bit obscure and inexplicable. It ought to have allowed the three children to live together and grow together in the same environment for proper bonding between siblings. It would have been in their best interest if they were kept in the same place. The prevailing circumstances show that in this month of May, 2020, Oreoluwa Anthonia Osalade who was born on the 21st October, 2001 is about 18 years and 7 months. The second son who was born on the 30th December, 2003 is about 16 years and 5 months now. Obviously they are of age and do not seem to require any special attention. It is an established principle of family law that custody of a child of a broken marriage is based on grounds other than the guilt, the blameworthiness or innocence of the parties concerned. It is not awarded for good conduct. It is not denied as as a form of punishment for the guilty party’s matrimonial offence. As I remarked earlier, the paramount consideration is the welfare of the child or children of the marriage in the surrounding circumstances of each particular case. And what is best must necessarily relate to the welfare, progress, advancement as well as the education of the children of the marriage. See the case of Nzelu vs. Nzelu (1997) 3 NWLR Part 494 page 475 per Nsofor, JCA, further queried “Would it be to best interest of the children of the family to grow to regard their father as a stranger? Or to live to be introduced to whom is their father. With such questions foremost in my mind, I believe it will be in the best interest of all the children if they are kept in the same place and since they are young men and a young girl, it is better for them to be in the custody of their father so that they could grow together to know themselves as brothers and sister and to properly embrace their roots in their paternal home. Accordingly issue No. 1 is resolved in favour of the Appellant with access granted to the Respondent to visit them at all reasonable times and even celebrate their birthdays with the Respondent in any year they may respectively wish and as the circumstances may determine. They are at liberty to spend any part or half of their holiday period with the Respondent at any time they may wish.
Turning to the contention on the rationale behind the award of N20,000 damages to the Respondent against the Appellant for assault allegedly committed on the Respondent, it would be exceedingly appropriate at this juncture to appraise the evidence both oral and documentary proffered by the parties during the hearing. However, before beaming light on that aspect, it is imperative to recognise the position of the law that an allegation of the commission of assault on a person is an allegation of the commission of a crime on that person by the Evidence Act. Such an allegation whether in a civil or criminal proceeding must be proved beyond reasonable doubt and not on a balance of probability. According to the definition ascribed to the word “assault” in the Online Edition of the Black’s Law Dictionary, 9th Edition page 130, it is “The threat or use of force on another that causes that person to have a reasonable apprehension of imminent harmful or offensive contact; the act of putting another person in reasonable fear or apprehension of an immediate battery by means of an act amounting to an attempt or threat to commit battery. Civil assault is equally defined as “an assault considered as a tort and not as a crime. Although the same assaultive conduct can be both a tort and a crime. See In Re: Osibakoro D. Otuedon, (1995) 4 NWLR (Pt. 392) 655 where it was held that “The law is well settled that if the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt. See Section 138 of the Evidence Act. In other words, although the preponderance of probability may constitute sufficient ground for a verdict in civil proceedings, this general rule is subject to the statutory proposition in Section 138(1) of the Evidence Act otherwise a person who alleges he was assaulted might fail to prove the assault in a criminal prosecution and yet be able to establish the same in a civil proceeding. The assault being directly in issue must be proved beyond reasonable doubt whether in a civil or criminal case.” Per Iguh, JSC.
In the instant appeal, PW5 who allegedly suffered the assault, beating, nakedness, etc, gave a vivid account of her experience and emotional trauma, how the Appellant rained his venom on her, stripped her naked. The assertions of her weaved hair being pulled off by the Appellant was corroborated by Exhibit OS4 series and OS5 series, the pictures she took of her hair at that moment to show to her children later and a piece of P.W.2’s evidence, the Petitioner’s younger sister who painted the sorry look of the Petitioner on the two occasions she ran to her (P.W.2’s) house for safety after being rough-handled by the Respondent. She said that even though she did not physically witness the Petitioner being assaulted by the Respondent, she personally saw the Petitioner’s pulled off weaved hair, etc, when she carne, and that on the second time, the Petitioner had bruises all over. On the first time, the Petitioner carne to her house about 11.000 am and said that her husband assaulted her. By this, P.W.2 was able to establish by evidence, not the truth of the statement, but the fact that it was made to her by the Petitioner who herself testified in the open Court in the presence of all the parties on how she was awfully assaulted. The Petitioner testified as to how she was brutally assaulted by the Respondent and even spontaneously in the open Court, showed the trial Court the marks/wounds on her thigh that were occasioned by the Respondent dent. The evidence of the Petitioner was somewhat corroborated by the evidence of P.W.2 and certainly not P.W.1 who merely testified as to how the Petitioner’s late father in-law, the late Adebayo Osalade allegedly brought N70,000 which he deposited with the Orisumubare Cooperative Multi Society Nigeria Ltd, Ado-Ekiti on behalf of the Petitioner who never eventually secured any loan from the Cooperative. It is therefore my candid view that there was ample evidence before the lower Court to have warranted the award of the N20,000.00 damages for the physical assault to the Respondent against the Appellant. The lower Court was therefore right to have accepted the evidence adduced by the Petitioner as a proof of commission of assault against her person by the respondent. It may be necessary hereat to observe that the clamour by the Respondent herein for increase in the sum awarded by the trial Court is ungrounded as there is no cross-appeal challenging the decision of the Court awarding the said sum. In the end, and in the light of the reasoning under this issue, I hereby resolve issue No. 2 in favour of the Respondent.
Then on the 3rd and 4th issues raised by the Appellant, it is clear in the reliefs Nos. 4 and 5 of the Respondent’s Petition before the lower Court that she prayed the lower Court for an order mandating an Estate Valuer to evaluate the houses jointly built by the Petitioner and the Respondent, and an Order ordering the sharing of joint properties owned by the Petitioner and the Respondent where the Respondent insists on marrying his mistress or any other lady. The trial Court in determining the Petitioner’s entitlement to the said reliefs said at pages 235 and 236 of the record thus:
“I will refrain from considering the reliefs sought by the Petitioner on legs 4 and 5 of the reliefs sought on the Petition.”
The trial Court reproduced the contents of reliefs 4 and 5 and further held:
“I do not have evidence before me of the Respondent marrying his mistress or any other lady. That being the prayer of the Petitioner which is consequent upon not an act not yet carried out, the Court would not grant a party relief not sought by the party or grant a relief consequent upon the happening of an act which has not taken place as in the instant case…”
Even in the final order made in respect of the substantive Petition filed by the Respondent, the trial Court still refrained from making any order thereupon.
Then, it was during its consideration of the Cross-Petition filed by the Appellant wherein the Respondent sought amongst other reliefs thus: “(ii) A declaration that there is no joint property between the Respondent Cross-Petitioner and the Respondent. (iii) A declaration that the two houses built by the Respondent (one of which is yet to be completed) respectively lying being and situate at Egbewa and Ajebandele Ado-Ekiti solely belong to the Respondent Cross-Petitioner.” These were vigorously contested between the parties which the trial Court highlighted at pages 242-248 of the record of this appeal. The Cross-Petitioner pleaded and led evidence to show that he solely acquired the properties in question while the Petitioner laboured fruitfully to convince the lower Court that she made a substantial contribution towards their purchase or acquisition and construction of the said properties. The lower Court further observed at page 245 of the record that the Petitioner in her pleadings, pleaded with particularity her contribution to the properties jointly owned by the parties. It noted that the Petitioner under cross-examination was unshaken. She reiterated the pleaded facts on her contribution towards the acquisition of the land at Egbewa Road, off Ilawe Road, Ado Ekiti and the property on Covenant Avenue, Ikere Road, Ado, Ekiti. The Court then further remarked: “The Cross-Petitioner denied tersely the facts surrounding the Petitioner’s contributions to the properties in his Answer/Cross Petition. (type from the record of appeal pages 245-249).
The trial Court then believed the testimony of the Respondent i.e. the Petitioner and held at page 249 that the properties belong to both parties, that is the Petitioner and the Cross-Petitioner. The Cross-Petitioner failed to prove that the properties in question were not joint properties of the parties or that they solely belonged to him. It was as a result of its finding that the Petitioner contributed immensely towards the acquisitions and constructions of those properties since they started living together as a couple from the year 2000 and even had their first child in 2001, well before the formalisation of their marriage in 2007, that led the Court in its holding that they are joint owners of those properties. Like the Appellant rightly observed there was no relief sought by the Petitioner for any order declaring any house supposedly acquired and erected by the parties that is situated at Covenant Avenue as joint properties of the parties. She did not articulate the houses in her reliefs. She simply listed them in paragraph 9 (d) and (e) of her Petition and then sought for an order directing sharing of the jointly owned properties. The Appellant said at paragraph 9(k) of his Answer and Cross-Petition that his second building is still under construction and that he has been solely responsible for all expenses and expenditures in respect thereof, and then asked for a declaration that the two houses built by the Respondent (one of which is yet to be completed) respectively lying, being and situate at Egbewa Road and Ajebandele, Ado-Ekiti solely belong to the Respondent. At paragraph 8 (h) of the Petitioner’s Answer to Respondent’s Answer and Cross-Petition, the Petition explicated that it is the property at the Covenant Avenue that is within the precincts of Ajebamidele, Ado-Ekiti. The Appellant also clarified the issue at paragraph 3(1) of his Rejoinder to the Petitioner’s Answer to Respondent’s Answer and Cross-Petition. The declaration made by the lower Court was in respect of the parties’ houses all situated on No. 8 Egbewa Road and the uncompleted duplex building on the Covenant Avenue irrespective of the particulars given. What matters is that the order made covered the said two houses situated at Egbewa Road and Covenant Road, Ajebandele. The orders made were covered under the Appellant’s Reliefs in his Answer and Cross-Petition. Accordingly, this issue is resolved against the Appellant.
In the end and for all the reasons I have given above, I hereby partly allow this appeal in respect of issue No. 1 only as it relates to the custody of the first and last children of the marriage between the parties which was granted to the Respondent on the 26th October, 2016. The said order of the lower Court made on the 26th day of October, 2016 granting custody of Oreoluwa Anthonia Osalade a female and Inioluwa Bernard Osalade, both children of the marriage to the Petitioner is hereby set aside. In its place and in reliance upon Section 15 of the Court of Appeal Act, 2004, this Court hereby grants the custody of the said children of the marriage to the Appellant with reasonable access to the Respondent articulated as follows: Respondent to visit them at all reasonable times and even celebrate their birthdays with the Respondent in any year they may respectively wish, and as the circumstances may determine. They are at liberty to spend any part or half of their holiday period with the Respondent at any time they may wish. I make no order as to costs.
FATIMA OMORO AKINBAMI, J.C.A.: I agree.
PAUL OBI ELECHI, J.C.A.: I had the opportunity of reading in draft the lead judgment just delivered by my learned brother Theresa Ngolika Orji-Abadua JCA in this appeal.
I agree entirely with the reasoning and conclusion that the appeal be partly allowed in part especially in respect to issue No. 1 only as it relates to the custody of the first and last children of the marriage between the parties.
Also the consequential order made pursuant to Section 15 of the Court of Appeal Act, 2004 granting the custody of the said children of the marriage to the appellant with reasonable access to the respondent is hereby adopted by me as if made by me.
In view of the above, I too will allow the appeal in part, and have nothing more to add.
Appeal allowed in part.
Appearances:
TAIWO OGUNMOROTI ESQ., with him, TEMITOPE KOLAWOLE ESQ., AYANTUNDE ADELEKE ESQ., OLUWASEUN OYEBANJI ESQ. and OLUWASAYO FAGBOHUN ESQ. For Appellant(s)
R. AGBEDE ESQ. For Respondent(s)
