Febisola Okwueze V. Paul Okwueze (1989)
LawGlobal-Hub Lead Judgment Report
The respondent is Ibo from Onitsha in Anambra State of Nigeria while the appellant is Yoruba. Sometime in June, 1967 the appellant got married to the respondent under the native law and custom of Ondo in Ondo State of Nigeria. The respondent was earlier married to another woman. That marriage was subsisting when he got married to the appellant. The appellant was aware of the earlier marriage before she agreed to marry the respondent. There are four children of the marriage between the appellant and the respondent. Three of the children are females while the fourth child is a male.
On the 23rd day of August, 1982 the appellant instituted an action in the Ondo Grade II Customary Court, sitting at Ondo.
The Customary Court stated the appellant’s claim as follows-
“The plaintiff’s claim against the defendant is for the dissolution of their 15 years old marriage on the grounds of lack of love, ill-treatment and rejection since two years ago. Plaintiff to refund N40.00 dowry to her husband.”
When the suit came up for hearing on the same day the claim was brought, the respondent asked for reconciliation but the appellant stated that she would not welcome any reconciliation since she had left their matrimonial home two years ago before her claim was instituted. Nevertheless the Customary Court adjourned the hearing of the case to the 9th day of September, 1982 to enable the parties to reconcile. The respondent could not contact the appellant during the adjournment because she refused to make herself available. Consequently, the reconciliation was aborted.
In her testimony at the hearing of the case, the appellant stated as follows- “I am a trader. I got married to the defendant (i.e. respondent) under native law and custom at Ondo in the year 1967 and I have since then been living with him. I have four issues for him.
Defendant was married to one other woman legally before I became his wife. Defendant’s legal wife and I did not agree a nd defendant’s legal wife and I did not exchange greetings since 1970, still defendant did not reconcile the two of us. My children and the children of the Legal wife did not play together or even exchange greetings. Defendant has a building in his home town, Onitsha but did not give me any room there. I used to live with the defendant’s brother in his own house whenever I went to Onitsha with the defendant. Defendant’s relation did not like me and none of the defendant’s relations has come to visit my own relations since I got married to the defendant in 1967. I have taken note of the above points and therefore decided to divorce him.” (Italics mine)
In his own testimony the respondent confirmed that he got married to the appellant at Ondo in 1967 according to the native law and custom of Ondo. He also stated that he had been married earlier to his first wife before he got married to the appellant. He lived with the two wives at Ibadan for two years before he was transferred as an employee to Ikare. Later he was transferred from Ikare to Owo and it was when he was stationed at Owo that he received a letter from the appellant stating the complaints mentioned in her testimony which has been quoted above. The appellant threatened in the letter to leave the matrimonial home by December, 1979. The respondent testified further that –
Plaintiff (i.e. appellant) packed out of my house on 12th February, 1980 leaving 3 out of the 4 issues she had with me, the fourth child having been staying with the plaintiffs aunt. Plaintiff then told me that she did not come to my house with any child and that she would not leave my house with any child also………..
I am conscious of the fact that plaintiff is willing to run away with all that I have done for her to another man’s house, neglecting my four children who I very much love and hence I want to state that I vehemently oppose the plaintiffs claim. I am however willing to admit the claim if the court wishes is so, on the understanding that I would like to take custody of all my four children”(Italics mine).
After the testimonies of the parties were briefly considered, the Customary Court granted divorce to the appellant and concluded the sketchy judgment as follows-
In this circumstance, therefore, we have no option but to grant that their marriage be dissolved. Judgment for plaintiff, Divorce granted. Plaintiff to pay N40.00 being dowry to defendant. Issues of the marriage 4: (a) Bosede (female) 14 years old (b) Ngozi (female) 12 years old (c) Victor (male) 9 years old (d) Gloria (female) 6 1/2 years old.
Plaintiff to release the immediate custody of Bosede, Ngozi, Victor and Gloria to defendant.”
Not satisfied with the judgment of the Customary Court, the appellant filed an appeal to the High Court of Ondo State holden at Ondo and also applied to the Customary Court for stay of execution of the order of custody of the children of the marriage pending the determination of her appeal by the High Court. The order of stay was granted by the Customary Court. The main complaint of the appellant was in respect of the custody granted to the respondent. Of the three grounds of appeal which she filed, ground I reads-
“1. The Court is wrong in Law and in fact when it granted custody of the children to the defendant without considering the interest and welfare of the children.”
The appellate High Court (Balogun, J) held that the Customary Court did not advert to the provisions of Section 23 of the Customary Courts Law, Cap. 33 of the Laws of Ondo State, 1978 before granting custody to the respondent. The appellate High Court, therefore, considered the provisions of the Section as well as the principles of custody under statutory marriages and decided as follows –
” In short, this is a case in which there has been no proper assessment of the totality of evidence and clearly a case where the decision is against the weight of evidence. In the circumstance the order of the lower Court as to the award of custody must be reversed. (See Chief S. O. Gbadamosi v. M. Aderogba Ajao, (unreported) S.C. (Coram Ademola C.J.N., Coker, Madarikan, JJ.S.C.) 24/6/1968, Woluchem v. Gudi, (1981) 5 S.C. 291 at pp.306-31O; Magnus Eweka v. Bello S.C. 90/1979 (unreported) of 30/1/81 (i.e. Bello v. Eweka, (1981) 1 S.C. 101); Rev. (sic) Kayode Eso, J.S.C. A.R. Mogaji & Ors. v. Odofin, (1978) 4 S.C. 91.
This appeal succeeds, the order made by the lower court granting custody of the children to the defendant is hereby set aside. The custody of all the children is granted to the plaintiff with whom the children have been staying. It is further ordered that these children shall not be removed from her custody but the defendant shall have free access to the children in consultation with the plaintiff. Either party is at liberty to supply (sic) for a variation of this order in future if conditions change. Either party is to bear his or her expenses.”
Consequently, it became the turn of the respondent to appeal against the decision of the High Court to the Court of Appeal, challenging the reversal of the decision of the Customary Court which granted the custody of the children to him. In upholding the appeal, the Court of Appeal (per Omo Eboh, J.C.A.) observed thus-
“I am at a loss to see where the appellate Judge had himself specifically considered the interest and welfare of the children before reaching his decision as to the order he made. I must say that I observe that there was no evidence that the respondent (i.e. the plaintiff) was better able or more suitable to look after the four children than the appellant (i.e. defendant) or had in fact made any arrangement for accommodation and education. It is remarkable that the respondent never said that the appellant was not a suitable person to be granted custody nor did the Judge consider or state why he thought or that the respondent (a trader who travels to Onitsha and other places from time to time) is in a better position to have custody of the four children than the appellant. So it does not appear that the learned appellate Judge gave a proper consideration to the entire case before awarding custody of the four children to the respondent. The appeal therefore succeeds on those grounds.”
The order of custody made by the appellate High Court was therefore set-aside by the Court of Appeal and the order of custody made by the Customary Court giving custody to the respondent was restored. Hence the appellant brought the present appeal. She successfully applied to the Court of Appeal for the stay of the judgment of that Court pending the determination of this appeal.
Six grounds of appeal have been filed and briefs of argument had been exchanged by the parties. In the appellants’ brief four issues have been formulated for the determination of this Court. They read –
“3.1 Whether the Court of Appeal was not wrong in awarding the custody of the children of the marriage of the parties to this appeal to the respondent herein without first ascertaining by due inquiry and adequate consideration the interest and welfare of the children of the said marriage.
3.2 Whether the Court of Appeal did not wrongly apply the decision in Ekpeyong & Ors. v. Nyong & Ors. (1975) 2S.C. 71 to the appeal before them and to the effect that the award of custody of the children of the marriage to the appellant herein by the appellate High Court was wrong in that she never requested or asked for same in her writ.
3.3 Whether the award of custody of the children of the marriage to the respondent herein by the trial court and the Court of Appeal was not based on wrong considerations and whether the said award was supported by clear evidence.
3.4 Whether the learned Justices of the Court of Appeal did not misdirect themselves in law when they held that there was no evidence on which the appellate High Court based its order and conclusion that the issues of the marriage had been staying with the appellant herein before the divorce decree was made by the trial court.”
The respondent has adopted all the issues in his brief of argument.
Now it is clear from the foregoing that the crucial issue in this appeal is the complaint against the reversal of the decision of the High Court which gave the custody of the children to the respondent. This is obvious from the first three out of the four issues that have been formulated.
First of all there are more to the case in the Customary Court than really meets the eye. The appellant in her evidence showed that the respondent was “legally married” to his first wife before he married her according to native law and custom. The question that follows is: do the words “legally married” refer to a marriage under the Marriage Act, Cap. 115 of the Laws of the Federation of Nigeria, 1958 If the answer is in the positive, then the next question is was the marriage between the appellant and the respondent in fact valid in view of the decision in Onwudijoh v. Onwudijoh, (1957) 11 E.R.L.R. and Craig v. Craig (1964) L.L.R 96 and the provisions of Section 35 of the Marriage Act, which states-“35. Any person who is married under this Act, or whose marriage is declared by this Act to be valid, shall be incapable, during the continuance of such- marriage, of contracting a valid marriage under customary law; but, save as aforesaid, nothing in this Act contained shall affect the validity of any marriage contracted under or in accordance with any customary law, or in any manner apply to marriages so contracted.”
This observation becomes necessary because if in fact there was no valid marriage between the parties in this case, the question of determining the custody of the children cannot be said to have come under the jurisdiction of the Customary Court; but will be governed by the provisions of Infants Law, Cap 49 Laws of Ondo State, 1978 in which case the jurisdiction of the Customary Court would have been ousted. (See Section 7 thereof and Omodion v. Fasoro & Anor. (1960) W.N.L.R. 27). However this point did not occur to any of the lower courts nor to the learned counsel in the appeal, nor was it raised in the course of hearing the appeal.
Be that as it may, assuming the point does not arise, it is clear from the quotation of the testimony of the respondent in the Customary Court that he wanted custody of the children but the Customary Court merely dealt with the issue peremptorily. The appellant made no reference in her testimony to the issue of custody but was pre-occupied with her claim for divorce, and she was not asked by the Customary Court any question on the issue of custody. There was therefore no sufficient evidence on which the custody of the children could have been determined by the Customary Court.
In general, under most systems of customary law in Nigeria the father of a legitimate child or legitimated child has absolute right to custody of the child. However customary law recognises that the absolute right of the father will not be enforced where it will be detrimental to the welfare of the child – see p.260 of Family Law in Nigeria by E.I. Nwogugu.
However the position is now different in Ondo State for subsection (1) of Section 22 of the Customary Courts Law, Cap 33 of the Law of Ondo State, 1978 provides that in determining the custody of children born under a customary marriage, the interest and welfare of the children is paramount. The subsection reads –
“22 (1) In any matter relating to the guardianship of children, the interest and welfare of the child shall be the first and paramount consideration.”
The Customary Court in deciding that the respondent should have custody of the children made no reference to the provisions of the subsection and it is clear from its brief judgment that it in fact did not take the subsection into consideration before it granted the custody of the children to the respondent. The Customary Court therefore misdirected itself. If the Customary Court had adverted to the provisions it no doubt would have considered in general the practice under Yoruba customary law which has been stated by R.O. Ekundare in his booklet titled – Marriage and Divorce under Yoruba Customary Law; where it is stated as follows on p.64 thereof-
“In the case of a dissolution, the customary court will consider what is best for the child. If the child is too young, e.g. if it has not been weaned, the court will grant an interim order giving the custody to the mother notwithstanding the fact that she has been found to be the guilty party. If the child has attained, say, the age of five, the court will have to consider who can best take care of the child. If the court is convinced that the father can best provide for the child, especially when the mother has no independent means of her own, the child will be put in his custody, notwithstanding the fact he was the guilty party. The sex of the child is also taken into consideration. A female child is considered to be more comfortable with the mother, while a male child is considered to fit in with the father. The court may refuse to grant custody to either of the parents, if the court is convinced that none of them is capable of giving the child the best care. In such a case the court may decide to grant custody to a guardian (in most cases, a relative)”. (Italics mine).
From the foregoing it is obvious that the failure of the Customary Court to take all the aforesaid into consideration in granting custody to the respondent had led to a miscarriage of justice. The High Court was right in adverting to the provisions of Section 22(1) of the Customary Courts Law, Cap. 33 but it based its decision on custody of children under Statutory marriage by following a number of English decisions. This is obviously a misdirection. The only proper manner in which the custody of a child under customary law can be determined is by specifically taking evidence to establish what is in the best interest and welfare of the child. Like the Customary Court, the High Court failed to do so. Its decision cannot, therefore, be said not to have caused a miscarriage of justice. Furthermore, the Court of Appeal made the same mistake since it agreed with the decision of the Customary Court which has been shown to have been a misdirection. It too based its decision merely on the request made by the respondent in the Customary Court to have custody of the children and not on evidence adduced to determine the interest and welfare of the children.
There is one other point that I consider pertinent in this appeal. It is the ages of the children in question as at today. In September, 1982, when the Customary Court heard the case, Bosede was 14, Ngozi was 12, Victor was and Gloria was 6 1/2. It is now more than 6 years since the proceedings in the Customary Court took place. In effect, the ages of the children are now over 20, 18, 16 and 13 respectively. Have the children not now passed the age of infancy under which they may be considered to need close parental care and attention The word “child” has not been defined under the Customary Courts Law, Cap. 33 nor is it defined under the interpretation Law Cap. 51 of the Laws of Ondo State 1978. However, the Children and Young Persons Law Cap. 21 of the Laws of Ondo State 1978 defines “child” as a person under the age of 14 years and the Infants Law, Cap. 49 of the Laws of Ondo State, 1978 defines “child” as a person under the age of twenty one years. But Section 7 of the Infants Law specifically provides that its provisions on guardianship and custody of children do not apply to children who are subject to Customary Law. The ordinary meaning of child is not also very helpful. Webster’s New Twentieth Century Dictionary, Unabridged, 2nd Edition defines “child” as a boy or a girl in the period before puberty. And it defines “puberty” as the age of 14 for male and 20 for female. This does not correspond with the definition under the Children and Young Persons Law. The Concise Oxford Dictionary, 17th Edition defines “child” as a person who has not reached the age of discretion. Section 70 of the Matrimonial Causes Act 1970 provides that a child who has attained the age of twenty-one is not entitled to maintenance. There is, however, no provision in the Act as to age limit with regard to custody. In England, Section 42 of the Matrimonial Causes Act, 1973 empowers Courts to make order, as they think fit, for the custody and education of a child who is under the age of eighteen. This power notwithstanding it is not usual for the courts in England to make a custody order in respect of a child who has reached the age of sixteen – see Hall v. Hall (1945) 62 T.L.R. 151 C.A. where the order for the custody of a child of the age of seventeen was discharged. Admittedly the provisions of our Matrimonial Causes Act, 1970 do not apply to marriages contracted under customary law – see section 69 thereof; but in the absence of any specific provisions under the relevant customary law or any statute or rule applicable to customary courts, it may be desirable to seek guidance under the provisions of other laws; such as the Children and Young Persons Law Cap. 21, Infants Law Cap 49 and the Matrimonial Causes Act, 1970 with regard to custody of the children of a marriage under customary law.
In the light of the foregoing, I am of the view that in the absence of any specific provision under the Customary Courts Law, Cap. 33, the age of 16 can be considered to be the reasonable age below which a Customary Court in Ondo State would consider the issue of custody of children of a marriage performed under Customary law.
Now the reliefs sought by the appellant in her notice of appeal are –
“1. That the decision of the Court of Appeal be set-aside.
- That the decision of the High Court be restored.
- Any further order or orders that the Supreme Court deems fit to make in the circumstance.”
In effect if the decision of the High Court were to be restored, the custody of all the children of the customary marriage is to be given to the appellant.
This is not possible in view of the different ages above 16 which three of the children have attained. The only child that still requires parental care is in my opinion Gloria who is presently below the age of 16. She is in fact 13 years and 2 months old. However, Gloria being a female, I do not deem it necessary to remit the case to the Customary Court to determine which of the parents should have her custody. I am inclined to give her custody to the appellant – her mother, in accordance with the practice under Yoruba customary law as stated in Marriage and Divorce under Yoruba Customary Law by R.O. Ekundare.
In the result the appeal succeeds. The decisions of the High Court and the Court of Appeal are hereby set-aside. The decision of the Customary Court in respect of the custody of all the children is also set aside. The appellant is hereby granted the custody of Gloria who is the youngest of the children. There is no order as to costs in favour of any of the parties. Each party is to bear its costs.
ESO, J.S.C.: The appellant was the plaintiff in the Ondo Grade II Customary Court. She brought a claim for the dissolution of their 15 years old marriage on the grounds of- Lack of love; ill treatment; and rejection for two years previous to the claim.
She did not ask for custody of any of her four children of the marriage.
At the trial the defendant her husband opposed the claim for divorce and would only admit it on terms. He gave evidence and said –
“I am conscious of the fact that plaintiff is willing to run away with all that I have done for her to another man’s house, neglecting my four children who, very much love and hence I want to state that I vehemently oppose the plaintiffs claim.”
The Court dissolved the marriage and awarded custody without hearing the plaintiff on the issue of custody to the defendant.
The plaintiff appealed to the High Court and the only issue in that Court was issue of custody. That Court held that there was no proper assessment of the totality of the evidence. The Court allowed the appeal and awarded the custody to the plaintiff saying-
“The custody of all the children is granted to the plaintiff with whom the children have been staying.”
Now there was no evidence that the children stayed with the plaintiff after she had abandoned the matrimonial home and so one could understand the reversal by the Court of Appeal of the order of the High Court after hearing the parties on appeal.
The issue before us is as to whom custody should be awarded. There is no doubt that no court has examined really the main issue in custody cases.
Sub-section (1) of Section 22 of the Customary Court Law (Cap. 33) of the Laws of Ondo State 1978 which is definitely applicable to this case provides-
“22(1) In any matter relating to the guardianship of children, the interest and welfare of the children shall be the first and paramount consideration.”
Upon a strict adjudication, the proper order this court should make is to remit the issue of custody to the Customary Court to take evidence upon which S.22(1) of the Customary Courts Law could be based.
The order to be made in this case has given me a great concern. For the purpose of any order is to see to the justice of the case, especially as the trial court could have had jurisdiction to make an order on custody as an ancillary order.
I have had a preview of the judgment which has just been read by my learned brother, Uwais, J.S.C., and I am in complete agreement with his treatment of this matter. Only the youngest child Gloria could be said to need custody now as all the other children are practically of age.
I cannot conceive of giving the custody of Gloria to the defendant for when the plaintiff left the matrimonial home, Gloria was staying with the plaintiffs aunt and was not with the father. Defendant said in his evidence –
“Plaintiff packed out of my house on 12th February, 1980 leaving 3 out of the 4 issues she had with me, the fourth child having been staying with plaintiffs aunt.”
Gloria is a girl who would at her age need a mother’s care and guidance more than a father’s. Though there is no evidence of the custom in regard thereto in Ondo, judicial notice could be taken of a notorious Yoruba custom that a mother usually takes custody of her daughter. Indeed it is notorious that a father never seeks custody of his daughter in a mailer of dissolution of marriage for the reasons of the type of care the female requires.
I will therefore allow this appeal and I abide by all the orders made by my learned brother, Uwais, J.S.C., including his order as to costs.