Albert Olakunle Apara V Christiana Modupe Apara (1968)
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At the hearing of this appeal, the appellant abandoned his appeal against the dismissal of his cross-petition, but he contended that the order made for the custody of the children (three girls of tender age) including the order for maintenance as well as the order for 10 guineas costs made against him in favour of the woman named were irregularly made.
Counsel for the respondent argued that although the judge did not state his reasons for making these orders they were In any case properly made.
We observed that very slight evidence was given at the trial about these matters and as this is not the first time an order relating to the custody of the children of a marriage is made peremptorily, we feel that attention of judges should be directed to the importance of this matter in divorce proceedings.The point is amply dealt with by rule 33A (a) of the Matrimonial Causes Rules, 1957, which provides as follows:-
“33A. Where at the hearing of proceedings for divorce, nullity of marriage or judicial separation it appears that there is a child of the family who has not attained the age of sixteen years and:-
(a) the judge is satisfied as respects every such child that arrangements have been made for the care and upbringing of the child and that those arrangements are satisfactory or are the best which can be devised in the circumstances, or that it is impracticable for the party or parties appearing before the court to make any such arrangements; there shall be entered in the court minutes a statement recording the matters in regard to which the judge Is satisfied under paragraph (a) of this Rule.”
The matter of the custody of the children of a broken marriage is important to the parties as well as to the community and not only should this be argued in court but judges should in appropriate cases retire into Chambers and discuss this fully with counsel on both sides and their clients before making a final order in court. It should not be assumed that the successful party must have custody of the children or that he Is the proper parry to whom the care of the children of the marriage should be entrusted. In the instant case, it is obvious from what appears on the record that the learned judge took no pains whatever to hear arguments of counsel on this issue before making the order.
We feel that the issue of custody should be sent back to the court below for the learned judge to take appropriate steps to hear parties and/or their counsel fully and that the hearing be expedited.
In regard to the costs awarded to the woman-named she was dismissed from the petition at an early stage without costs being awarded in her favour at that stage. She has, however not been served with notice of this appeal and as she is not before us, we cannot hear counsel for the petitioner on this matter.
We adjourn this matter till 18th November, 1968 for a report from the High Court on the issue of custody of the children in case counsel wish to argue any point arising from the order the learned judge may make.
Other Citation: (1968) LCN/1586(SC)