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UGADU v. UGADU (2020)

UGADU v. UGADU

(2020)LCN/15701(CA)

In the Court of Appeal

(ENUGU JUDICIAL DIVISION)

On Monday, July 13, 2020

CA/E/325/2016

Before Our Lordships:

MisituraOmodere Bolaji-YusuffJustice of the Court of Appeal

Joseph Olubunmi Kayode OyewoleJustice of the Court of Appeal

Abubakar Sadiq UmarJustice of the Court of Appeal

 

Between

MRS. WINIFRED CHIDIMMA UGADU APPELANT(S)

And

FREDRICK AGBO UGADU RESPONDENT(S)

 

 

RATIO:

THE CUSTODY OF A CHILD IS AT THE DISCRETION OF THE COURT BASED ON THE EVIDENCE ADDUCED

I am of the opinion that the substance of the Appellant’s compliant in this appeal is that on the basis of the evidence led at trial, the trial Court was wrong to have granted joint custody to both parties instead of granting full custody to her.
I have perused the record of appeal before this Court wherein evidence reveal that the girl child in question was about 10 years at the time of the trial Court’s decision, definitely she was still a minor under Section 3 of the Child Rights Law of Ebonyi State 2010. At this stage, it is pertinent to point out that on grant of custody of a child of tender age by a trial Court, the recipient of custody is at the discretion of the trial Court based on the evidence adduced by both parties at trial. However the discretion must be exercised according to laid down principles and considerations to meet the best interest of the child in question. See ADEPARUSI V ADEPARUSI (2014) LPELR 41111 CAABUBAKAR SADIQ UMAR, J.C.A. 

THE ULTIMATE OR PARAMOUNT CONSIDERATION OF THE CUSTODY OF A CHILD IS THE INTEREST OF THE CHILD IN QUESTION

Flowing from the above I must state that the trial Court in its judgment at pages 226 – 227 of the Record of appeal averted its mind to the fact that the law is well established that in deciding who to grant custody of a child, the ultimate or paramount consideration is the interest of the child in question. See SECTION 4 OF THE CHILD RIGHTS LAW OF EBONYI STATE 2010. See also the case of WILLIAMS V. WILLIAMS (SUPRA). Furthermore the law as established in a plethora of cases is that the interest of the child will include his or her welfare, education, security, overall wellbeing and development. And where the child is female, there is a presumption that female children in their formative years are better cared for by their mother, except the contrary is proved through credible evidence. See ODUSOTE V ODUSOTE (supra) also relied on by the Appellant’s counsel.

THE PRINCIPLES DIRECTING THE DISCRETION OF THE COURT

Upon a succinct evaluation of the evidence led at trial vis-a-vis the trial Court’s application of same to the law, I am of the view that the trial Court was mindful of the principles that should directhis discretion. This explain why the trial Court at pages 229 to 230 of the record of appeal, applying some of the above listed factors, to the established evidence before the Court made the following observation:
“…it would be recalled that the Court had earlier held that there is no material evidence placed before it to show that the plaintiff is not capable of taking care of the child in this matter, whose custody she seeks. However, it would be recalled that for the past four years the child has been in the custody of the defendant from the time she was six years of age. The Court is of the view that taking her out of that environment which to my mind she is used to which will entail a sharp detachment from the school where she is and the friends she has companied with within the period might affect the child psychology and emotion, particularly when there is nothing placed before the Court to show that the environment is working against the child….”(Underlining mine for emphasis ABUBAKAR SADIQ UMAR, J.C.A. 

THE EVALUATION OF EVIDENCE AND ASCRIPTION OF PROBATIVE VALUE ARE THE PRIMARY DUTIES OF THE TRIAL COURT

A cursory look at the trial Court’s observation will reveal that the Court considered that taking the child (a young girl in her formative years) out of the custody of either party (Appellant and Respondent) totally will not be to her best interest, as she needs the attention, training and care of both her parents to have a balanced life. The law is trite that evaluation of evidence and ascription of probative value are the primary duties of the trial Court. The appellate Court has no business in interfering with the evaluation of evidence unless it is shown that the trial Court abdicated its duty or failed to properly evaluate the evidence or that its findings are perverse. See ATOLAGBE V. SHORUN (1985) LPELR-592 (SC) AT 31 (C-D).
ABUBAKAR SADIQ UMAR, J.C.A.

THE BEST INTERESTS OF THE CHILD TO BE LEFT WITH CUSTODY OF BOTH PARENTS

In the light of the above findings it is my view that it is in the best interest of the child in question that she be left in the custody of both her parents as ordered by the trial Court. I am of the opinion that the discretion of the trial judge was exercised within the perimeters of the law and facts placed before him and I see no reason to distort the decision of the trial Court in this regard. ABUBAKAR SADIQ UMAR, J.C.A. 

ABUBAKAR SADIQ UMAR, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Family Law Court of Ebonyi State sitting at Abakaliki in Suit No. HAB/25MC/2013 delivered by Honourable Justice D. O. OKO on 11th day of March, 2016.

BRIEF STATEMENT OF FACTS
The Brief facts culminating into the instant appeal are that the Appellant as Applicant at the trial Court filed an application brought pursuant to Section 152, 153(a), 154(1) (a) and 72(1) (a) (i) of the Ebonyi State Child Rights Law 2010 seeking the custody of one Nneoma Precious Ugadu (female) being the product of the marriage between herself and the Respondent. (See pages 1 to 6 of the record of appeal)

In response to the Appellant’s application, the Respondent filed a counter affidavit also praying the trial Court for the custody of the child in question. (See pages 46 to 61 of the record of appeal).

At the conclusion of hearing, the trial Court after a dispassionate consideration of the issues raised by the parties held at pages 231 of the record of appeal as follows:
​“In view of all the above, this Court hereby make order awarding jointcustody of Miss Nneoma Precious Ugadu to both the plaintiff and the defendant. The said Miss NneomaUgadu is to remain in the custody of the defendant (her father) during school sessions while she spends all her holidays with the plaintiff (her mother) until she attains the age of majority under Section 3 of the Child Rights Law (supra) which is fixed at 18 years, after which she can then decide which of the either parents to put up with…”

Dissatisfied with the decision of the trial Court awarding joint custody to the parties, the Appellant appealed to this Court vide a Notice of Appeal dated 13th May, 2016 and filed on the same day.

​In line with the Rules of this Court, the parties filed and exchanged their briefs of argument. The Appellant’s Brief of Argument is dated 4th August, 2016 and filed on 5th August, 2016. The Appellant also filed a Reply Brief to the Respondent’s brief of argument. The Reply Brief is dated 23rd March, 2018 and filed on the same date. Both Briefs were settled by OSUU S. C. ODUKO ESQ., who at page 3 of the Appellant’s brief formulated three issues for the determination of this appeal to wit:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

“1. Was the trial Court right in ruling that it will be the best interest of Nneoma Precious Ugadu, a female girl child (sic), to allow the father to have custody of her under the care of his new wife rather than her mother who the trial Court said was equally qualified to have custody of her?
2. Was the discretion exercised by the trial Court in the best interest of Nneoma Precious Ugadu, a girl child by disregarding a general rule that the custody of a child of tender age be left for the mother more so when there was nothing that disqualify the mother from keeping custody of her?
3. Was it for the best interest of Nneoma Precious Ugadu for the trial Court not to appreciate the problems that female children encounter as they grow to age of puberty, when the Court awarded custody of her to her father rather than to her mother when she was approaching the age of puberty?”

The Respondent’s Brief of argument on the other hand is dated 13th February, 2018 and filed on 15th February, 2018. The said Brief was settled by C. A. AIYAMEKHUE ESQ. who at paragraph 3.0 of the Respondent’s brief distilled two issues for thedetermination of the appeal as follows:
“1. Has the Respondent adduced enough credible evidence to buttress his contention that the Appellant is morally tainted and therefore unqualified to have custody of the child Miss Nneoma Precious Ugadu?
2. Would the interest of the child Miss Nneoma Precious Ugadu be best served if placed in the custody of the Appellant?”

The appeal was heard on the 2nd June, 2020 wherein counsel to the parties adopted their briefs and made oral adumbrations in respect of their diverse postures in the determination of the appeal.

APPELLANT’S ARGUMENTS AND SUBMISSIONS
On issues No. 1, 2 and 3, counsel to the Appellant submitted that the trial Court in its decision to grant joint custody to the parties failed to consider the fact that the Respondent had married another woman who is pregnant for him already. He contended that granting joint custody of the child to the Respondent during her academic sessions invariably means that the new wife of the Respondent will be primarily responsible for the upbringing of the child, considering the fact that the Respondent is a very busy businessman.

He submitted that the said new wife, who already has a child of hers, cannot possibly take care of the Child as would her biological mother in the person of the Appellant. It is the contention of Counsel that the decision of the Court to grant joint custody in this regard is not in the best interest of the Child considering the fact that the Appellant has the capacity to personally take care of her child as rightly noted by the trial Court. He referred this Court to page 227 and 230 of the record of appeal.

Counsel to the Appellant argued that the law requires that in an estranged marriage such as this case, custody of a child of tender age be granted to the mother except where the conduct of the mother is morally reprehensible. He referred this Court to the case of TABANSI V. TABANSI (2009) 12 NWLR (PT. 1155) 415 AT PAGE 432. He submitted that tender years referred to above was defined by the Court to mean below 18 years and from the evidence before the Court, the child in question was ten (10) years old as at the time of the trial Court’s judgment. Counsel submitted further that from the findings of the trial Court, the Appellant is not unfit orlacking in morals to have custody of the child.

Counsel to the Appellant submitted that granting joint custody to Appellant and Respondent in this instance is not in the best interest of the child because the Respondent will not cooperate with the Appellant to properly train the child in character and morals. He submitted further that considering the testimony of the Appellant at the trial Court, the Child was not being taken care of by the Respondent. He urged the Court to appraise the evidence adduced at trial and resolve these issues in favour of the Appellant.

On the need for a female child approaching puberty to be with her mother rather than her father, he submitted that there are periods in a girl’s life when she is undergoing the slow advance to maturity and that during this period; the child needs her mother to discuss issues dwelling on her development both physiological and psychological. He cited the case of THERESA WILLIAMS V RASHEED WILLIAMS (1987) 2 NWLR (PT 54) PP 66. Counsel submitted that it was established at trial that the Child in question is 10 years old and still of tender years and approaching puberty, hence the trialCourt ought to have granted full custody to the Appellant.

Relying on the case of ODUSOTE V ODUSOTE (2012) 3 NWLR (PT 1288) 478 AT 505, he argued that except the contrary is proved, the law presumes that female children are better cared for or looked after by their mother, and that they would be happier and more at peace because of the intimacy they share with their mothers. He argued further that the welfare of the child which the Court ought to consider before granting custody to either parent includes the happiness of the child and her psychological development. He referred this Court to ODOGWU V ODOGWU (1992) 2 NWLR (PT 225). Counsel submitted that the trial Court wrongly inferred that the child will have a balanced development when she is allowed to live with her father and mother at intervals as against staying with her mother only.

On the whole, Counsel urged this Court to set aside the trial Court’s decision and grant the full custody of the child to the Appellant.

RESPONDENT’S ARGUMENTS AND SUBMISSIONS
On issues No.1 and 2 distilled by the Respondent, Counsel argued that the law is settled that immorality of a motherwhich may adversely affect the psychological and moral development of the child is an exception to the general rule that custody of children of tender years be granted to their mother. He relied on ODOGWU V. ODOGWU (supra). He submitted that from the evidence before the trial Court, it was shown that the Appellant was both immoral and rebellious thus cannot be saddled with the responsibility of bringing up the child. He submitted further that evidence before the Court reveal that the Respondent is better placed to take custody of the child considering the immoral nature of the Appellant. Counsel to the Respondent argued that the law is trite that in considering the custody of a child, the best interest of the child shall be the primary consideration. He referred this Court to SECTION 4 AND 5(1) OF THE EBONYI STATE CHILD RIGHT AND RELATED MATTERS LAW 2010.

Counsel further submitted that the paramount consideration by the Court when called upon by parents for the grant of custody, should be “what will be the best interest of the child” and not the gender of the parents. He contended that the Court should dispassionately consider which of theparties in this case will advance the well-being and ensure proper grooming of the child in furtherance of her overall best interest. He submitted that from the evidence and facts before the Court, it is clear that the Respondent is in the best position to take care of the child as required by law.

Counsel argued that the arrangement made by the parties for the education of the child(ren) or opportunities for proper upbringing are matters which may affect the determination of who should have custody. He submitted that the Respondent has shown from the evidence before this Court that he has made proper arrangement for the education and upbringing of the child. He further submitted that evidence reveal that the child is attached and more acquainted with the Respondent. Counsel submitted that the contention that the new wife of the Respondent will not take care of the child properly as required is both speculative and unfounded. He argued that the Court should not grant custody to a parent who has not shown sufficient care, love and attention to the child. He referred this Court to OKAFOR V OKAFOR (1976) 6 CCHCJ 1927. He submitted that the Court shouldconsider that the child has been with the Respondent since she was born and that should there be a change of custody, it may cause psychological harm to the child.

On the whole, counsel submitted that it is in the best interest of the child that custody remain with the Respondent and not be given to the Appellant. He therefore urged this Court to dismiss the appeal for lacking in merit.

REPLY BRIEF
Counsel to the Appellant committed pages 2 to 10 of the Reply Brief to respond to all the arguments and submissions contained in the Respondent’s brief of argument.

RESOLUTION OF ISSUES
I have read through the pages of the record of appeal before this Court and the adopted briefs of argument of counsel in support of their various contentions and postures in this appeal. The issues for determination canvassed respectively by the parties are well examined and considered. I am of the view that the issue hereunder stated is apt and germane for the resolution of the issues raised in the appeal:
“Whether from the totality of the evidence placed before the trial Court, the trial Court rightly exercised its discretion in grantingjoint Custody to the parties?”

After a careful reading of the Appellant’s Notice of Appeal, submissions and arguments as contained therein in the Appellant’s Brief of Argument, I am of the opinion that the substance of the Appellant’s compliant in this appeal is that on the basis of the evidence led at trial, the trial Court was wrong to have granted joint custody to both parties instead of granting full custody to her.
I have perused the record of appeal before this Court wherein evidence reveal that the girl child in question was about 10 years at the time of the trial Court’s decision, definitely she was still a minor under Section 3 of the Child Rights Law of Ebonyi State 2010. At this stage, it is pertinent to point out that on grant of custody of a child of tender age by a trial Court, the recipient of custody is at the discretion of the trial Court based on the evidence adduced by both parties at trial. However the discretion must be exercised according to laid down principles and considerations to meet the best interest of the child in question. See ADEPARUSI V ADEPARUSI (2014) LPELR 41111 CA.

Flowing from the above I must state that the trial Court in its judgment at pages 226 – 227 of the Record of appeal averted its mind to the fact that the law is well established that in deciding who to grant custody of a child, the ultimate or paramount consideration is the interest of the child in question. See SECTION 4 OF THE CHILD RIGHTS LAW OF EBONYI STATE 2010. See also the case of WILLIAMS V. WILLIAMS (SUPRA). Furthermore the law as established in a plethora of cases is that the interest of the child will include his or her welfare, education, security, overall wellbeing and development. And where the child is female, there is a presumption that female children in their formative years are better cared for by their mother, except the contrary is proved through credible evidence. See ODUSOTE V ODUSOTE (supra) also relied on by the Appellant’s counsel.
Furthermore the Courts have held in plethora of cases that in deciding what the welfare of a child is, factors which should be considered relevant include:-
a) degree of familiarity between the child and each of the parents respectively, (b) the amount of affection between the child and each of theparents, (c) the respective income and position in life of each of the parents (d) the arrangements made by the parties for the education of the child (e) the fact that one of the parents now lives as man and wife with a third party who may not welcome the presence of the child, (f) the fact that young children should as far as practicable, live and grow up together (for two children and above) (g) the fact that in cases of children of tender ages should, unless other facts and circumstances make it undesirable, be put under the care of the mother, (h) the fact that one of the parents is still young and may wish to marry and the child may become an impediment.”
See the case of ELUWA V. ELUWA (2013) LPELR – 22120 (CA).
It is noteworthy that these factors are only some to be considered and so each case is to be decided on the peculiar facts and circumstances placed before the Court in the proceedings. See ODOGWU V ODOWGU (supra).
Upon a succinct evaluation of the evidence led at trial vis-a-vis the trial Court’s application of same to the law, I am of the view that the trial Court was mindful of the principles that should directhis discretion. This explain why the trial Court at pages 229 to 230 of the record of appeal, applying some of the above listed factors, to the established evidence before the Court made the following observation:
“…it would be recalled that the Court had earlier held that there is no material evidence placed before it to show that the plaintiff is not capable of taking care of the child in this matter, whose custody she seeks. However, it would be recalled that for the past four years the child has been in the custody of the defendant from the time she was six years of age. The Court is of the view that taking her out of that environment which to my mind she is used to which will entail a sharp detachment from the school where she is and the friends she has companied with within the period might affect the child psychology and emotion, particularly when there is nothing placed before the Court to show that the environment is working against the child….”(Underlining mine for emphasis)

A cursory look at the trial Court’s observation will reveal that the Court considered that taking the child (a young girl in her formativeyears) out of the custody of either party (Appellant and Respondent) totally will not be to her best interest, as she needs the attention, training and care of both her parents to have a balanced life. The law is trite that evaluation of evidence and ascription of probative value are the primary duties of the trial Court. The appellate Court has no business in interfering with the evaluation of evidence unless it is shown that the trial Court abdicated its duty or failed to properly evaluate the evidence or that its findings are perverse. See ATOLAGBE V. SHORUN (1985) LPELR-592 (SC) AT 31 (C-D).

​Despite the several unsubstantiated allegations of infidelity, immorality and irresponsibility leveled against one another, the learned trial judge did not lose focus on the crucial point for determination which is how the decision of the Court regarding custody was going to be in the best interest of the child in question. It is my view that the trial Court considering the facts of the case vis-à-vis the position of the law, judiciously exercised its discretion as regards the grant of custody of the girl child, when it held at page 231 of the record ofappeal that:
“…In view of the above, this Court hereby make order awarding joint custody of Miss Nneoma Precious Ugadu to both the plaintiff and the defendant. The said Miss NneomaUgadu is to remain in the custody of the defendant (her father) during school sessions while she spends all her holidays with the plaintiff (her mother) until she attains the age of majority under Section 3 of the Child Rights Law (supra) which is fixed at 18 years, after which she can then decide which of the either parents to put up with…”

In the light of the above findings it is my view that it is in the best interest of the child in question that she be left in the custody of both her parents as ordered by the trial Court. I am of the opinion that the discretion of the trial judge was exercised within the perimeters of the law and facts placed before him and I see no reason to distort the decision of the trial Court in this regard.

CROSS APPEAL
Dissatisfied with the decision of the trial Court awarding joint custody to the parties, the Respondent appealed filed a Notice of Cross Appeal dated 13th February, 2018 and filed on 15th February,2018.

In line with the Rules of this Court, parties filed and exchanged their briefs. The Cross appellant’s Brief of Argument is dated 13th February, 2018 and filed on 15th February, 2018. The Cross Appellant also filed a Reply to the Cross Respondent’s Brief of Argument. The Reply brief is dated 30th October, 2018 and filed on the same date. Both briefs were settled by C. A. AIYAMEKHUE ESQ. who at paragraph 2.0 of the Cross Appellant’s Brief of argument distilled two issues for the determination of this appeal to wit:
“1. Whether or not the trial Court wrongly exercised its discretion to award joint custody of the child Nneoma Precious Ugadu to both parties having regard to the likelihood that her moral upbringing may be impaired on account of the immorality of the Appellant/Cross Respondent. (Distilled from Ground 2)
2. Whether the award of sole custody of the child NneomaUgadu to the Respondent/Cross Appellant will be in her best interest in view of the fact that the Appellant/Cross Respondent made no arrangements for the education and general welfare of the child. (Distilled from grounds 1, 3 and 4).”

The Cross Respondent’s Brief on the other hand is dated 23rd March, 2018 and filed same day. The said Brief was settled by OSUU S. C. ODUKO ESQ., who merely adopted the issues raised by the Cross Appellant for the determination of the cross appeal.

The cross appeal was heard together with the main appeal on the 2nd June, 2020 wherein counsel to the parties adopted their briefs and made oral adumbrations in respect of their diverse postures in the cross appeal.

Without delving into the resolution of the issues raised by counsel in this Cross appeal, I wish to state that the issues raised in the main appeal and in the cross appeal are all tailored towards who between the parties ought to have been granted custody of the child by the trial Court. While the Cross Respondent as Appellant in the main appeal prayed this Court to grant her full custody of the only child of the marriage, the Cross Appellant herein in the cross appeal also wants the Court to set aside the decision of the trial Court granting joint custody and grant him full custody of the child.

​In view of the decision in the main appeal wherein the decision of the Family Law Court ofEbonyi State sitting at Abakaliki in Suit No. HAB/25MC/2013 delivered by Honourable Justice D. O. OKO on the 11th day of March, 2016 granting joint custody of the girl child Nneoma Precious Ugadu to both parties was affirmed, the issues raised herein in the cross-appeal become otiose.

In view of the foregoing, I therefore resolve the sole issue distilled by this Court from the issues raised by parties against the Appellant. The appeal lacks merit and same is hereby dismissed. The Cross-Appeal also fails and is also dismissed. The judgment of the trial Court in Suit No.: HAB/25MC/2013 delivered by Honourable Justice D. O. OKO on the 11th day of March, 2016 is hereby affirmed.
I make no order as to cost.

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I have read the draft of the judgment delivered by my learned brother, ABUBAKAR SADIQ UMAR, JCA. I agree with his reasoning and conclusion that the appeal has no merit and is hereby dismissed. The cross-appeal also fails and is also dismissed.

JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.: I have had the privilege of reading the draft of the lead judgment just delivered herein by my learned brother ABUBAKARSADIQ UMAR, JCA and I totally endorse the reasoning and conclusion therein.
I equally hold that the appeal lacks merit and it is accordingly dismissed.
I also find no merit in the Cross-Appeal and I accordingly dismiss it as well.
I adopt the consequential orders In the lead judgment as mine.

Appearances:

OSUU S. C. ODUKO, ESQ.For Appellant(s)

C. A. AIYAMEKHUE, ESQ.For Respondent(s)