Mrs. Charity Okafor V. MR. Paul Okafor (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

IBRAHIM SHATA BDLIYA, J.C.A. (Delivering the Leading Judgment)

On or about the 28th of May 2005, Paul Okafor (the respondent) and Charity Okafor (the appellant) got married under the Tiv Native Law and Custom in Vandekiya Local Government Area of Benue State. They lived together at the Okafor Close, Mahuta Kaduna up to the 16th of May 2014 when the appellant left the matrimonial home without the consent of the respondent.

Thereafter, the marriage broke down resulting to their living apart. There are 2 children of the marriage, Precious Onyinye Okafor, 8 years, and Favour Chinyere Okafor 5 years, both female.

The respondent as the petitioner initiated an action against the appellant as the respondent before the Sabon Tasha Customary Court (the trial Customary Court) claiming the custody of the two (2) children of the marriage. After the taking of evidence and addresses of counsel, the trial Court delivered its judgment on the 19th of December, 2014, in favour of the appellant, that is granting the custody of the 2 children to the appellant. Dissatisfied with the judgment, the respondent appealed to the Customary Court of Appeal,

Kaduna state (the Lower Court) on the 5th of January, 2015. The Lower Court delivered its judgment on the 30th of June 2015, in favour of the respondent, whereby the judgment of the trial Customary Court was set aside, with the consequential order of granting the custody of the children to the respondent.

The appellant aggrieved by the judgment of the Lower Court filed a notice of appeal to this Court on 2nd of July 2015 on 3 grounds of appeal. The appellant filed brief of argument on the 4th of September 2015. The respondent filed brief of argument on the 7th of October, 2015. The appeal was heard on the 18th of January 2016; whereat, Amos Esq. who settled the appellant’s brief adopted same, and urged the Court to allow the appeal, set aside the judgment of the Lower Court, and restore that of the trial Court. Akobueze Esq., of learned counsel to the respondent, adopted his brief of argument and did urge the Court to dismiss the appeal for lacking in merit and affirm the judgment of the Lower Court.

On page 4 of the appellant’s brief of argument a lone issue has been distilled from the 3 grounds of the notice of appeal, which is thus:

“Whether considering the evidence placed by the parties before the Lower Court, the Lower Court was right in entering judgment in favour of the respondent thereby granting custody of the two girls who are minors to the respondent.”

The respondent similarly formulated a lone issue out of the 3 grounds of the notices of appeal which can be found on page 3 thereof. It is thus:

“WHETHER the Customary Court of Appeal, Kaduna was not right in law to award custody of the two children of the marriage to the respondent”

The law is trite, in the hearing of an appeal an Appellate Court can adopt, reframe or formulate issues which it thinks appropriate for the determination of the appeal, provided, the issue, whether adopted, reframed or formulated, is or are predicated on the grounds of the notice of appeal, filed by the appellant. See Latunde v. Lajinfi (1989) 3 NWLR (Pt.108). In this regard, the lone issue distilled from the 3 grounds of the notice of appeal by the parties for the appeal is hereunder reframed for the sake of breusty, clarity and precision for the just determination of the appeal.

“WHETHER, CONSIDERING

THE EVIDENCE ADDUCED BY THE APPELLANT AND THE RESPONDENT BEFORE THE TRIAL CUSTOMARY COURT THE CUSTOMARY COURT OF APPEAL (THE LOWER COURT) WAS RIGHT IN ENTERING JUDGMENT IN FAVOUR OF THE RESPONDENT THERE BY GRANTING CUSTODY OF THE CHILDREN OF THE MARRIAGE TO THE RESPONDENT.?

Amos Esq., who settled the appellant’s brief of argument contended that: