THEOPHILUS EZIAKU v. DEBORAH EZIAKU
(2018)LCN/12199(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 28th day of November, 2018
CA/EK/39/2017
RATIO
MATRIMONIAL CAUSES: CUSTODY OF A CHILD
“In custody proceedings, unless it is abundantly established or made clear that the mother suffers from moral conduct, infections diseases, insanity, lack of reasonable or is cruel to the children etc., custody of children ought to go to their mother. It is known fact that children of tender age, male or female are ordinarily better off in terms of welfare and upbringing with their mother. There is always that rebuttable presumption in favour of the mother of the children of dissolved or broken down marriage. See ODOGWU v. ODOGWU (1992) NWLR (PT. 215), (1992 LPELR 2229 (SC).” PER PAUL OBI ELECHI, J.C.A.
Before Their Lordships
AHMAD OLAREWAJU BELGOREJustice of The Court of Appeal of Nigeria
PAUL OBI ELECHIJustice of The Court of Appeal of Nigeria
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODUJustice of The Court of Appeal of Nigeria
Between
THEOPHILUS EZIAKUAppellant(s)
AND
DEBORAH EZIAKURespondent(s)
PAUL OBI ELECHI, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the judgment of the High Court of Ekiti State, Ikere Ekiti Judicial Division delivered by Hon. Justice A. A. Adeleye on 13th day of January, 2017.
The Respondent was the Petitioner at the High Court. The reliefs in her petition filed on 2nd February, 2014 are as follows:
i. A Decree of judicial separation on the ground of intolerable behavior.
ii. Custody of the children.
iii. Payment of maintenance (One Hundred Thousand Naira per month for maintenance, shelter and welfare of the children.
iv. Payment of children school fees and related educational expenses.
v. Refund of hospital bills and other expenses on the pregnancy and delivery of Eziaku Arinzechuckwu Tony-Lijah (the last child).
The Appellant as Respondent filed an answer and cross petitioned for;
i. An order dismissing the Petitioner’s petition.
ii. A decree of dissolution of the marriage between the Respondent and the Petitioner on the ground that the marriage has broken down irretrievably in that the petitioner deserted her matrimonial home on 2nd June, 2012 and that the parties herein had lived apart for a period of more than three [3] years.
iii. An order granting custody of Master Chinedu Samuel Eziaku and Miss Chidimma Grace Eziaku with an order of access to the Petitioner when they are on holidays.
iv. An order granting custody of Master Chinonso Moses Eziaku to the Respondent when he attains six [6] years.
The petition was heard on the 26th July, 2016 and on 13th October, 2017, judgment was delivered granting all the Respondent’s reliefs except for prayers 3 and 5 and dismissed the Appellants/Respondent’s prayers in his cross-petition.
The Appellants being dissatisfied filed a notice of appeal on the 20th February, 2018 and followed it up.
FACTS OF THE CASE
The Respondent/Petitioner was married to the Appellant/Respondent on 23rd February, 2008 at the Redeemed Christian Church of God, Asin, Ikole Ekiti State. They cohabited from that time till 3rd June, 2012 at 2 different locations. Their union was blessed with three children.
Chinedu Eziaku born on 24th March, 2009
Chidimma Eziaku born on 20th July, 2010
Arinzechukwu Eziaku born on 30th August, 2012
The Respondent/Petitioner secured employed with the Ijesa-Isu Confidence Microfinance Bank which led to a row between the parties and the Appellant/Respondent desertion of the Respondent/Petitioner while she was 6 months pregnant with Arinzechukwu Eziaku. The Appellant/Respondent filed for divorce but the matter was struck out on 31st October, 2013. The Respondent/Petitioner made several attempts to effect reconciliation at Social Welfare Board, Ikole; Latter House Parish, RCCG; Directorate of Citizens’ Rights; and other individuals but all failed. The Respondent/Petitioner’s found the intolerable behavior impossible to live with and thus filed for judicial separation.
The Appellant in his Notice of Appeal raised four [4] grounds of appeal out of which he formulated three [3] issues for determination to wit:
i. Whether based on established facts, admitted by both the parties that they had been living apart for a minimum of three [3] years preceding the filing of the cross-petition, the trial Court was right to hold that the appellant did not establish that the parties lived apart so as to entitle him to a decree of dissolution of marriage [Ground 1]
ii. Whether the Court as right, despite the pleadings and evidence adduced, in granting custody of the two older children of the marriage to the respondent [Grounds 2 and 4]
iii. Whether considering the evidence adduced, the state of pleadings and the position of the law, the trial Court was right in holding that the respondent proved intolerable behavior and therefore was entitled to a decree of judicial separation
[Ground 3]
ARGUMENT ON THE ISSUES
ISSUE ONE:
Whether based on established fact, admitted by both the parties that they had been living apart for a minimum of three [3] years preceding the filing of the cross-petition, the trial Court was right to hold that the appellant did not establish that the parties lived apart so as to entitle him to a decree of dissolution of marriage [Ground 1].
By the Appellant’s cross-petition, he prayed for the dissolution of the marriage between him and the respondent herein on the ground that the marriage had broken down irretrievably in that the parties have lived apart for a period of more than three years before the filing of the cross-petition.
The facts as contained in the petition, cross-petition, the statements on oath of the parties are uncontroverted that the parties has been living apart since 3rd June, 2012, a period of more than three years before the cross petition of the Appellant was filed on 15th January, 2016.
The Respondent herein alleged that she was driven out of the matrimonial home on 3rd June, 2012 and the Appellant maintained that the Respondent by herself left the matrimonial home on the same date, the agreeing point is that the parties stopped cohabitation or living together on 3rd June, 2012. These facts and evidence are clear as to the date the parties stopped cohabiting. Even the trial Court in its judgment made a finding of fact that the parties stopped cohabiting since 3rd June, 2012 at page 97 of the records, the Court said thus:
‘ While the respondent is resident on Oke Aleu Street, the Petitioner lives on Omodowa Street.’
It is submitted that although the Court emphasized the evidence of the Respondent herein that it was the appellant that caused her to leave the matrimonial home, the guilt of either party that necessitated the ‘living apart’ is immaterial as far as Section 15[2][f] of the Matrimonial Causes Act is concerned.
It is contended that, it is clear from the pleadings and evidence before the Court that the parties indeed were living apart from June 2012 up to the time the cross petition was filed in January 2016, a period of over three years.
It is also clear that the Appellant relied on living apart under Section 15 [2] [f] of the Matrimonial Causes Act to establish that the marriage has broken down irretrievably.
Learned counsel submitted that the trial High Court supplied with these facts and evidence ought to know that it had no discretion but to grant the divorce when the facts are unassailable that the parties have lived apart for three [3] years preceding the cross-petition for divorce.
See Ajidahun v. Ajidahun [2000] 4 NWLR [pt. 654] 605 at 612, Omotunde v. Omotunde [2001] 9 NWLR [pt. 718] 252 at 283.
It is therefore submitted that the trial High Court out to have held that the marriage between the parties have broken down irretrievably by virtue of living apart under Section 15[2][f] of the Matrimonial Causes Act, the Court ought to have dissolved the marriage. The fact that the Appellant was of the hope that the marriage could work is of no moment.
Issue Two:
Whether the Court was right, despite the pleadings and evidence adduced, in granting custody of the two older children of the marriage to the respondent [Grounds 2 and 4].
One of the reliefs of the Respondent in her petition is for the custody of the children of the marriage. Similarly, the Appellant in his Respondent?s answer and cross-petition prayed for custody of the children Chinedu Samuel Eziaku and Chidimma Grace Eziaku. He equally prayed for the custody of the last child. Chinonso Moses Eziaku when he attains the age of six years.
From the pleadings of the parties and their evidence at the lower Court, these facts emerged:
a. The parties have three children namely:
1. Chinedu Eziaku born on 24th March, 2009
2. Chidimma Eziaku born on 20th July, 2010
3. Arinzechukwu Eziaku born on 30th August, 2012.
b. The parties started living apart on 3rd June, 2012 when the Respondent left the matrimonial home leaving the two older children aged three and two years respectively and all in the custody of the Appellant. The Respondent gave birth to the third child when the parties were already living apart.
c. The two older children were in the custody of the Appellant from June 2012 till 13th January, 2017 when the trial Court delivered the judgment.
d. The Respondent works in a bank as such had little or no time to take care of the children.
Even upon the above, the lower Court in spite of all the facts raised above granted custody of the children to the Respondent on the ground that the 2nd child is a female of 5 years old and therefore would be better off with her mother and the reason that the Respondent had emotional attachment with the first child.
Learned Appellant counsel submitted that the fact that a child or children of a marriage are of tender years is not a ground that custody must be granted to the mother more importantly in the instant case where the children have been with the Petitioner for five years and where it is established that the Petitioner is not out of work and cannot provide the necessary care and supervision needed for the children.
SeeWilliams v. Williams 1987 2 NWLR [part 54] 66.
The Respondent by her own evidence in paragraph 23 of the Respondent’s Statement on Oath and her evidence under examination in chief the Respondent admitted and agreed that she works with a Micro-Finance Bank. It is well known that Bank workers resume early and close very late. It is therefore not far fetched to raise the inference that the Respondent would have little or no time for the children.
In Otti v. Otti 1992 7 NWLR [part 252] 187 an appeal on custody was dismissed when the evidence of the appellant showed that the nature of her work would make it impossible to give her personal attention to the children while at work.
Therefore, the Respondent by the nature of her work would not be able to give the necessary attention to the children.
There is no evidence to support this reasoning of the trial Court and the said reasoning is one of the major premise used by the trial Court to award the custody of the 1st and 2nd children to the Respondent herein. There was nowhere in the records that the evidence which form all the basis of the reasoning of the trial judge as reproduced above is contained.
By the trial Court’s raising such points as above, it is very clear that the Court has raised and relied on non-existent facts or evidence. Such fact or issue or evidence was not raised before the trial Court as the parties did not also raise arguments on same.
See Bamgbegbin v. Oriare [2009] 13 NWLR [pt. 1158] 370 at 400, A.S.E.S.A. v. Ekwenem [2009] 13 NWLR [pt. 1158] 410 at 439.
Learned Appellant counsel contended that, the erroneous reasoning of the trial Court and the opinion formed consequent upon erroneous reasoning on non-existent evidence invariably weighed on the mind of the trial Court to grant the custody of the two older children to the Respondent.
In respect of Chinedu Samuel Victor, the child with a hole in the heart, the trial Court without any medical evidence or opinion to support the allegation of the Respondent in her Statement on Oath took the allegation hook, line and sinker and erroneously formed a medical opinion upon which the decision on custody was reached, without taking evidence of a medical professional on the issue.
The trial Court was therefore wrong for relying heavily upon unproven medical fact. See Inwelegbu v. Ezeani [1999] 12 NWLR [pt. 630] 266 at 276.
It is contended that from facts available, the Appellant has had custody of the children from 2012 when the 1st and 2nd children were three and two respectively and was therefore capable of taking care of the children if he could do so in their infancy. That the trial Court should have considered this fact and should have granted custody to the Appellant based on the Appellant’s relief [c] which also asked for order to allow the Respondent have access to the children during the holidays. This relief is the most appropriate in the circumstance and it would allow both parties have access to the children, i.e. the Appellant during school term, the Respondent during holidays.
This relief would have allowed the children to have all round contact with both parents, which will greatly contribute to the welfare and upbringing of the children. Even the terms proposed in relief [c] of the Appellant’s cross petition is tantamount to joint custody because it affords both parties access to the children.
See Otti v. Otti [supra] The Court he submitted was wrong to have granted custody to the Respondent and urged the Court to so hold, and to resolve this issue in favour of the Appellant.
Issue Three:
Whether considering the evidence adduced, the state of pleadings and the position of the law, the trial Court was right in holding that the Respondent proved this intolerable behavior and therefore was entitled to a decree of judicial separation [Ground 3].
The Respondent as the Petitioner prayed for a decree of judicial separation on the ground of intolerable behavior. The Appellant in his cross-petition prayed for a decree of dissolution of the marriage on desertion or living apart. There is evidence that both parties have lived apart for a period of at least three [3] years preceding the said cross-petition.
It is Appellant’s argument that considering issue one, the trial Court ought to have granted the relief of the Appellant for a decree of dissolution of the marriage on the fact that the parties have lived apart for at least three [3] years preceding the cross-petition.
If the Court had done so, there would be no legal basis to grant the Respondent’s relief for a decree of judicial separation. The Court is urged to do so.
Even without the above, it is submitted that it is trite that the facts to be relied upon for a petition for judicial separation are to be based on one or more of the facts relied upon for a decree for dissolution of marriage. See Section 39 of the Matrimonial Causes Act and Sections 15[2] and 16[1] of the same Matrimonial Causes Act.
The fact relied upon by the Respondent is intolerable behavior, which the trial Court held that the petitioner had proved as to entitle her to a decree of judicial separation on the reliance of intolerable behavior, is that apart from enumerating the facts, the petitioner must also state that she finds it intolerable to live with the Respondent pursuant to Section 15[2][c] of the Matrimonial Causes Act which are:
a. The sickening and detestable behavior of the Respondent and
b. That the Petitioner finds it intolerable to live with the Respondent.
See Damulak v. Damulak [2004] 8 NWLR [pt. 874] 151. The Petitioner in her petition and her Statement on Oath particularly paragraphs 17, 18, 20, 22, 23, 42 of the Statement on Oath of the Petitioner, the Petitioner stated that the Respondent has the habit of beating her and leaving her with scars, that the Respondent harassed her at work in the presence of her colleagues, etc.
The Respondent testified alone. The trial Court should not have held that the Respondent proved intolerable behavior when there was no evidence before the Court of the bruises and scars on her body and also when none of her colleagues at work before whom she was harassed was called by her as a witness.
As a result, it is contended that the evidence of the existence of the bruises and scars and the testimony of the colleagues who witnessed the harassment of the Respondent by the Appellant is necessary before the Court could conclude that indeed the Respondent has proved intolerable behavior.
See Section 167[D] of the Evidence Act and Inwelegbu v. Ezeani [1999] 12 NWLR [pt. 630] 266 at 276.
In view of the facts relied upon by the petitioner, Learned Appellant counsel contended that there is need for supporting evidence by a medical evidence, photograph of scars and independent evidence of harassing or subjecting the Respondent to odium. See Ibrahim v. Ibrahim [2007] 1 [pt.1015] 383 at 404 – 405.
In view of the above, it is contended that the trial Court ought not to have held that the Respondent proved intolerable behavior so as to entitle her to the relief of Decree of judicial separation. The Court is urged to so hold; and to resolve this issue in their favour.
Finally he urged the Court to allow the appeal and set aside the judgment of the High Court delivered on the 13th January, 2017 and to dismiss the petition of the Respondent and grant the cross-petition of the Appellant.
On his own part, the Respondent relied on the grounds as filed by the Appellant and raises a single issue for determination to wit.
Whether or not the lower Court was right when he granted the custody of the three children of the marriage: Chinedu Samuel Victor Eziaku [then 8yrs old]; Chidimma Grace Eziaku [then 7yrs old] and Arinzechukwu Eziaku [then 3 yrs old] to the Respondent/Petitioner.?
It is submitted that decisions on custody are entirely at the discretion of the Judge who will exercise same judicially and judiciously, i.e. based on the peculiar facts of the case and the applicable relevant laws. SeeWILLIAMS v. WILLIAMS [1987] 2 NWLR pt. 66.
It is also stated that some of the factors the Court will consider in arriving at a just decision on custody, or put more properly, who to grant custody to are:
The health of the children
The social and financial status of the parties
Welfare of the children
Available facilities for children
Religious and social opportunities available
Sex and age of the children
Proposed arrangement for the children
See WILLIAMS v. WILLIAMS [supra]
According to learned counsel, the Court below considered specifically the interest of each child, age, sex, education, adequacy of arrangement, conduct of the parties medical factors as it relate to the facts pleaded, overall care, and emotional attachment ofs the children to the parties.
The decision of the Court is a matter of discretion and therefore this Court will not interfere with the decision of the Court below except a miscarriage of justice has occurred or same was not exercise properly.
See ACME BUILDERS LTD., V. K.S.W.B [1999] 2 NWLR [PT. 590 288]. It is therefore the Appellant’s duty to show how the Court below failed to exercise its discretion properly.
It is contended that there is no gainsaying the fact that the trial judge considered various points in the course of deciding who should have custody of the children of the marriage. What is however not without a doubt is the reason he awarded each child’s custody to the respondent. The trial judge meticulously took each child’s custody one after the other as he should well have done, after all, in any proceedings for custody, the Court shall regard the interest of the children as paramount consideration, which includes the welfare and education of the children. See NANNA v. NANNA [2006] 6 NWLR [pt. 966].
It is Appellant’s duty if dissatisfied to challenge same and even the notice of appeal which has 4 grounds of appeal but none of which challenged the finding of the Court.
The Appellant argues that because the Respondent works with Ijesa-Isu Microfinance Bank, she therefore must resume early and close late. He goes so far as to contend that ‘bank workers resume early and close very late. It is therefore not far fetched to raise the inference that the respondent would have little or no time for the children’.
Not only is there no legal basis for this sort of inference, there is no fact on record that suggests that the Respondent either closes late or resumes early, the Appellant had ample opportunity to challenge her thus while in the witness box and failed to do so, he cannot turn around to attempt to present same as a fact at this stage. In fact, it is presumed that he knew the fact will not favour him hence his refusal to confront the Respondent while in the box.
Learned counsel contended that assuming without conceding that there is no existence of a cousin to take care of the children while with the Appellant, the effect is that apart from the Appellant, no one else takes care of the children. There is no evidence of any other person in the Appellant’s house or in fact in his life. There is no existence of a family support structure. One is left to wonder what happens to the little children when the Appellant is engaged outside the house and the children are in school? Who picks up the children from school if they school in Oye while the Appellant works and lives in Ikole? Clearly, no one will prefer to bring up children under these circumstances. This is more so when placed side by side with the Respondent who lives with her parents and siblings in a 3 bedroom apartment.
The only child of the marriage who benefited from this obiter was Master Arinzechuckwu Eziaku but this is of no moment as the Appellant conceded custody of the little boy to the Respondent. It is unreasonable to assume that the Appellant who says his proposed arrangement for Arinzechukwu Eziaku is that the Respondent should be responsible for feeding, clothing, education of the child till he attains 6 six years when he will assume custody of the child. He neglects to say what will happen to him afterwards.
Instructively, this same boy was the one in the Respondent’s womb 6 months when the Appellant sent her packing. He also refused to attend his naming ceremony and in fact claimed the child was not his. If in truth, the consideration in awarding custody to either parent is the welfare of the child in question the Appellant is not in the show. See ELUWA V. ELUWA [2013] LPELR [CA].
There is indeed nothing to show that the Appellant has Arinzechukwu’s welfare in mind, nor is there any plans for him and there is no way any Court of law exercising a judicious and judicial discretion will award custody to the Appellant.
The Appellant also argues that the trial Court ought to have called in medical evidence to buttress the fact Victor Eziaku had a medical condition and also that a ?third party? ought to have been called to corroborate that the Appellant had to be compelled to take care of the child. This position has no basis in law. The appellant did not deny any of the Respondent?s allegations and it is trite that facts not denied are deemed admitted and facts admitted need no further proof.
Also, what was in issue was not the actual medical condition of Victor Eziaku but the fact that he was not fit and it took the intervention of a third party to get the Appellant to get him medical attention. The appellant did not deny this at trial, he cannot do so at this stage.
While it is true that the both parties have equal rights towards the child, it is far more correct that young children and particularly female children will thrive better with their mother. SeeELUWA v. ELUWA [supra] and OYELOWO v. OYELOWO [1987] 2 NWLR 239. In these particular circumstances, it is even more so when Victor Eziaku has been shown to have health challenges and the Appellant shown to be lacking in his care. See ODUSOTE v. ODUSOTE [2012] 3 NWLR [pt. 1288].
Further, Chidimma Eziaku being a female child will need the care of a mother at this stage in her life when she is approaching puberty. In fact, from the argument of the Appellant, he has no quarrel with the reasoning of the trial judge. He is just dissatisfied with the outcome. Long custody [from 2012- 2017] is not equal to proper/lawful custody. It is more proper that the children be with the Respondent while Appellant has access to them on holidays that what the position previously was.
See KARIBI-WHYTE JSC [as he then was] in WILLIAMS v. WILLIAMS [1987] 2 NWLR PT. 66.
The Court is then urged to resolve this issue in favour of the Respondent and finally to dismiss the appeal and affirm the judgment of the trial Court.
ISSUE 2
Whether or not the lower Court was right when he granted the custody of the three children of the marriage; Chinedu Samuel Victor Eziaku [then 8 years] Chidimma Grace Eziaku [7 years old] and Arinzechukwu Eziaku [3 years] to the Respondent/Petitioner.?
It is on record that one of the reliefs of the Respondent in her petition at the trial Court is for the custody of the children of the marriage. Similarly, the Appellant in his Respondent’s answer and cross petition prayed for the custody of two children of the marriage viz Chinedu Samuel Eziaku and Chidimma Grace Eziaku. He equally prayed for the custody of the last child, Chinonso Moses Eziaku when he attains the age of six years.
Learned Appellant’s counsel had submitted in his brief of argument that the fact that a child or children of marriage are of tender age is not a ground that custody must be granted to the mother. However, it must be noted that decisions of custody are entirely at the discretion of the trial judge who will exercise same both judicially and judiciously, based on the peculiar facts of the case and the application of as the relevant laws thereto. See WILLIAMS [1987] 2 NWLR pt. 46.
In exercising its discretion on whom to grant custody to, the Court will take into account the following:-
(a) The health of the children
(b) The social and financial status of the parties
(c) The welfare of the children
(d) Available facilities for the children
(e) Religions and social opportunities available
(f) Sex and age of the children
The trial Court in the instant case considered specifically the interest of each child, age, sex, education, conduct of parties, medical, overall care and emotional attachment of the children to the parties. The extent the trial Court reached in deciding whom to grant custody to, could be seen from his consideration of each child’s peculiar standing thus:
CHINEDU SAMUEL VICTOR EZIAKU
IT IS MAJORLY IN CONSIDERATION OF THE MEDICAL FACTOR OF CHINENDU SAMUEL VICTOR THAT I WOULD GRANT CUSTODY THEREOF TO THE PETITIONER, THE MOTHER AND CHILD FEELING WILL BE REKINDLED.?
CHIDIMMA GRACE EZIAKU
CHIDIMMA GRACE, FIVE YEARS OLD AND A FEMALE, GOING BY HER AGE WOULD BE APPROACHING PUBERTY. THE STATE CHANGES EXPERIENCED BY FEMALE CHILDREN AT THE PUBERTY STAGE CAN BEST BE HANDLED BY A WOMAN HARDLY WOULD A MAN KNOW WHEN AND HOW TO HANDLE SEX EDUCATION WITH A FEMALE CHILD. JUDICIAL NOTICE IS TAKEN OF THE MISCONDUCTS GAINING RAMPANCY IN THE COUNTRY NOWADAYS, WHEN A FATHERS AND MALE RELATIONS DEFILE GIRL CHILDREN. IT IS IN CONSIDERATION OF THIS FACT THAT CUSTODY OF CHIDIMMA GRACE WILL BE GRANTED THE PETITIONER.?
ARINZECHUKWU EZIAKU
THE LAST CHILD OF THE MARRIAGE, MASTER EZIAKU, A MALE CHILD, IS THREE YEARS OLD. THOUGH THE RESPONDENT IS NOT AVERSE TO THE PETITIONER HAVING CUSTODY OF THE LAST CHILD OF THE MARRIAGE, IT IS MY HUMBLE VIEW THAT THE LAST CHILD OF THE MARRIAGE IS A MINOR, WHO PROBABLY WOULD JUST BE DISENGAGING FROM WEANING BY HIS MOTHER. IT FOLLOWS THAT THE RESPONDENT’S COUSIN WOULD NOT BE WELL POSITIONED TO TAKE PROPER CARE OF A THREE YEAR OLD BOY. IT IS IN CONSIDERATION OF THIS FACTOR THAT CUSTODY OF THE LAST CHILD OF THE MARRIAGE IS GRANTED, THE PETITIONER.?
I cannot but agree with the learned trial judge with this level of assessment as per each child’s peculiar standing.
Worthy of note is that this same Arinzechukwu Eziaku was the baby boy in the Respondent’s womb at six months when the Appellant sent her packing and even refused to attend his naming ceremony after birth. Worse still was that the Appellant claimed the child was not his. The argument of the Appellant that there was no medical evidence of Arinzechukwu Eziaku is of no moment in this case. After all, both parties are not in doubt of same.
In custody proceedings, unless it is abundantly established or made clear that the mother suffers from moral conduct, infections diseases, insanity, lack of reasonable or is cruel to the children etc., custody of children ought to go to their mother. It is known fact that children of tender age, male or female are ordinarily better off in terms of welfare and upbringing with their mother. There is always that rebuttable presumption in favour of the mother of the children of dissolved or broken down marriage. See ODOGWU v. ODOGWU (1992) NWLR (PT. 215), (1992 LPELR 2229 (SC).
From the factors ably considered by the trial judge in awarding custody to the Respondent, I find no justification or any sound reason to interfere with the decision of the trial Court on the award of the three children to the Respondent.
Perhaps I should point out that the duty of this Court is limited to finding out whether or not the trial Court made proper finding which the evidence before it deserves in awarding custody to the Respondent. It is not the function of this Court to simply set aside the decision of the lower Court on the ground only that it would have reached a different conclusion on some or even all the facts before that Court. In that regard, I find no procedural or substantive error in the award of custody to the Respondent by the trial Court that would warrant a correction and interference with the award in Dr. Sola Saraki v. N.A.B. Kotoye [1990] 6 SCNJ 31 at 51, where it was held:
“It is well settled that the Court of Appeal cannot set aside a discretion exercised by the High Court because, it would have exercised the discretion differently.”
Also see Solanke v. Ajibola [1968] 1 All NLR 46 at 59; [1969] 1 NMLR 253.”
As earlier on stated in the course of this judgment, decision on custody is entirely at the discretion of the trial judge, to be exercised judicially and judiciously. See WILLIAMS v. WILLIAMS [supra] therefore for an appeal against the exercise of discretion, to succeed, it must be shown by the Appellant that there has been a wrongful exercise of discretion and that the Court acted under a mistake of law or in disregard of principle or under a misapprehension of facts or on the ground that injustice could arise or that no weight or no sufficient weight has been given to relevant consideration or when as it is usually said that the discretion was not exercised judicially. See Odutola v. Kayode [1994] LPELR 226 [SC], [1994] 2 NWLR [Pt. 324] 1, [1994] 2 SCNJ 21.
None of the above instances can be attributable to the considerations awarded each child of the marriage before granting custody of the children to the Respondent.
Finally, custody of children is an on-going exercise akin to recurrent decimal. It is a day to day or revolving affair. Whenever any of the spouses discovers that conditions have changed or altered for the worse in respect of the interest, benefit and welfare of the children or child in the custody of another person or spouse, he or she can apply to the Court to review the custody order. The Court upon hearing the parties would reach a decision in the best interest of the child or children as the case may be. Therefore, all is not lost, as appellant still reserves the right to approach the Court for a review of the order for custody of the children of the marriage in deserving circumstances. See Ayegba v. Ayegba [1979] 3 LRN 232 at 235 [per Idoko, J. as he then was, now of blessed memory] citing in support Lord Merriman, P. in Hayes v. Hayes [1948] 1 WN 361, where the learned Lord said:
“Custody is a matter which can be dealt with from day to day; there is no finality about an order for custody in any Court.”
See also Obajimi v. Obajimi [2011] WRN 9. This issue is therefore resolved in favour of the Respondent.
On issue 1 ? that whether based on established fact, admitted by both the parties that they had been living apart for a minimum of three years preceding the filing of the cross petition, the trial Court was right to hold that the Appellant did not establish that the parties lived apart so as to entitle him to a decree of dissolution of marriage, this issue arose from ground 1 of the grounds of appeal.
A party that may present a petition for decree of dissolution of marriage and the grounds upon which petition may be presented are embodied in.
Section 15[1] of the Matrimonial Causes Act provides:
Section 15 [1]
“A petition under this Act by a party to a marriage for a decree of dissolution of the marriage may be presented to the Court by either party to the marriage upon the ground that the marriage has broken down irretrievably.”
Section 15 [2]
“The Court hearing a petition for a decree of dissolution of marriage shall hold the marriage to have broken down irretrievable if, but only if, the petitioner satisfied the Court of one or more of the following facts.
a. That the respondent has willfully and persistently refused to consummate the marriage;
b. That since the marriage the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;
c. That since the marriage the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;
d. That the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition;
e. That the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition and the respondent does not object to the decree being granted;
f. That the parties to the marriage have lived apart for a continuous period of at least three years immediately preceding the presentation of the petition.
4. On when parties to a marriage will be treated as living apart.
Section 15[3] of the Matrimonial Cause Act provides;
Section 15 [3]
For the purposes of Subsection [2] [e] and [f] of this section the parties to a marriage shall be treated as living apart unless they are living with each other in the same household.
A Court hearing a petition for the dissolution of marriage shall grant the relief if the marriage has broken down irretrievably. See Section 15[1] of the Matrimonial Cause Act. Sub-section 15[2] set out the facts upon which the Court could hold that a marriage has broken down irretrievably.
Section 15[2][e] of Matrimonial Cause Act forms the crux of the argument of the Appellant and it states thus.
The Court hearing a petition for a decree of dissolution of marriage shall hold that the marriage has broken down irretrievably, but if the petitioner satisfies the Court of one or more of the following facts
[e] that parties to the marriage have lived apart for a continuous period of two years immediately preceding the presentation of the petition and the Respondent does not object to a decree being granted.”
The two conditions must be presented to warrant the Court granting a decree of dissolution of the marriage under Section 15[2][e] of the Matrimonial Causes Act. See Odili v. Odili [1973] 3 ECSLR 63, Omotunde v. Omotunde [2001] 9 NWLR [pt. 718] 252.
The Appellant in his notice of Appeal raised four grounds of Appeal out which he raised the following issues thus:
“Whether based on established facts, admitted by both the parties that they had been living apart for a minimum of three years preceding the filing of the cross – petition, the trial Court was right to hold that the Appellant did not establish that the parties lived apart so as to entitle him to a decree of dissolution of marriage.”
This issue of the Appellant arose from ground one of the grounds of Appeal.
It is contended by Learned Counsel that the Appellant’s cross-petition prayed for the dissolution of the marriage between him and the Respondent herein on the ground that the marriage had broken down irretrievably in that the parties have lived apart for a period of more than three years before the filing of the cross petition and placed reliance on Section 15[2][f] of the Matrimonial Cause Act to establish same.
Ordinarily for the purpose of Sub-section 2[e] of Section 15 above, the parties to the marriage shall be treated as living apart unless they are living with each other in the same household. Section 15[3] of Matrimonial Cause Act.
In order to establish the fact of Section 15[2] [e] above, the petitioner is expected to prove the following:
i. That the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition.
ii. That the Respondent does not object to the decree being granted the two conditions must be present to warrant the Court granting a decree of dissolution of the marriage under Section 15[2][e] of the Matrimonial Cause Act. See Odili v. Odili [1973] 3 ECSLR 62 at 63. Again a petition for dissolution of marriage is not granted on the basis that the Respondent admitted the same in his/her answer. The petitioner must lead satisfactory evidence to prove his entitlement to the decree. See Omotunde v. Omotunde [2001] 9 NWLR [pt. 718] 252, 284.
Even though I agree with Learned Appellant’s submission to the effect that the trial Court ought to have held that the marriage between the parties have broken down irretrievably by virtue of living apart under Section 15[2][f] of the Matrimonial Causes Act and as such, the trial Court ought to have dissolved the marriage, I do however part company with him in view of the provisions of Section 15[2][e] of the Matrimonial Causes Act which is divided into two cumulative parts viz:
i. The petitioner must satisfy the Court that the parties to the marriage have live apart for a continuous period of at least two years immediately preceding the presentation of the petition.
ii. The Respondent does not object to a decree of dissolution of the marriage being granted.
The above two conditions must be present to warrant the Court granting a decree of dissolution of the marriage under Section 15[2][e] of the Matrimonial Causes Act. See Odili v. Odili (supra) this is apparently so because a petition for dissolution of marriage, is not granted on the basis that the Respondent admitted the same in his/her answer. The petitioner shall lead satisfactory evidence to prove his entitlement to the decree. See Section 44[3] of the Matrimonial Causes Act, Omotunde v. Omotunde [supra].
Hitherto, the petitioner/Respondent had on the 2nd February, 2014 filed a petition seeking among other reliefs;
“A decree of Judicial separation on the ground of intolerable behavior etc at the High Court of Justice, Ikere Ekiti Judicial Division. In view of the above, the requirements of Section 15[2][e] of Matrimonial Causes Act has not been met. And so, this issue is resolved in favour of the Respondent.”
ISSUE 3
Whether considering the evidence adduced, the state of the pleadings and the position of the Law, the trial Court was right in holding that the Respondent proved intolerable behavior and therefore entitled to a decree of judicial separation [ground 3].
The Appellant contended that he had in his cross petition prayed for a decree of dissolution of marriage on the basis of desertion or living apart for a continuous period of two years and that the Court ought to have granted same.
On her own part, the Respondent relied on intolerable behavior as a basis for asking for a decree for separation.
From the Respondent’s statement on oath, she stated that the Appellant has the habit of beating her and leaving her with scars at her place of work to the embarrassment of her colleagues. Appellant’s counsel challenged these averments especially on the inability to call those colleagues of hers to come and testify before the trial Court could conclude that the Respondent had proved intolerable behaviors. See Section 167[d] of the Evidence Act, Ibrahim v. Ibrahim [2007] 1 NWLR [pt.1015] 388. This he submitted was not done.
On the other hand, the Appellant did not deny of the Respondent’s allegations and it is trite that facts not denied are admitted and facts admitted need no further proof. See Okesiji v. Lawal [1986] 2 NWLR [pt. 22] 417, Owosho & Ors. v. Dada [1984] 7 SC 149.
This issue is therefore resolved in favour of the Respondent. In the final analysis, this appeal is devoid of any merit and it is hereby dismissed. The judgment of the lower Court is hereby affirmed.
Appeal Dismissed.
AHMAD OLAREWAJU BELGORE, J.C.A.: I have had the advantage of a preview of the judgment just delivered by my learned brother, Paul Obi Elechi, JCA and, I agree that this appeal is devoid of any merit and it is hereby dismissed.
I dismissed this appeal, the decision of the lower is hereby affirmed.
Appeal dismissed.
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I have had the privilege and opportunity to read in draft the lead judgment delivered by my learned brother, Paul Obi Elechi JCA.
The Appellant’s disagreement with the judgment of the Court below was in the main that the Court should have dissolved the marriage and not the decree of judicial separation and the orders in respect of the three children of the marriage, Chindinma Samuel Eziaku, Chindinma Grace Eziaku and Chinonso Moses Eziaku.
From the printed Record before this Court, particularly pages 75-104 the Court below evaluated the evidence before it with regard to the relevant and applicable law and the orders in respect of the custody of the children of the marriage. The Court in my view and humbly, properly exercised its discretion given the facts and circumstances presented to it upon which it drew its conclusion governed by law. Where that was the case, judicial discretion exercised bonafide, uninfluenced by irrelevant considerations, not arbitrary or illegal, this Court will have no cause to interfere. See the cases of OSHE V. OKIN BISCUIT LTD 2010 LPELR 2798 SC P. 20, IDEOZU V. OCHOMA 2006 LPELR-1419 SC P.19, BALOGUN V. AKANJI 1988 1 NWLR 301 SC and KODILINYE V . MBANEFO ODU 1935 2 WACA 365.
In the light of the foregoing, I also agree with my learned brother that this appeal cannot be allowed and therefore fails. It is hereby consequently dismissed.
I make no order as to costs.
Appearances:
Ademola Adeyemi, Esq.For Appellant(s)
Durodoluwa Oyeyiola, Esq.For Respondent(s)
