Mrs. Helen Nwosu V. Hon. Dr. Chima Nwosu (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HELEN MORONKEJI OGUNWUMIJU, J.C.A.(Delivering the Leading Judgment)

This is an appeal against the judgment of the Imo State High Court sitting at Owerri delivered by Anunihu J. on 22/6/09 wherein he granted declaratory and injunctive orders in favour of the Respondent. The facts that led to this appeal are as follows:

The Appellant is Respondent’s wife by a statutory marriage contracted on 7/12/1998. The said marriage produced four children and the parties stayed together as a family at Plot 72B Works Road, Owerri. On 13/11/06, the Appellant left the matrimonial home with the four children who were underage. The Appellant relocated to Calabar in Cross River State and stayed with her mother. The Respondent went to Calabar but was not able to see his children or persuade his wife to return to Owerri. He then instituted an action in which he sought the following declarations and reliefs in his amended statement of claim as contained in the judgment at page 179 of the record:

1. Declaration that the Defendant being the wife of the Plaintiff in respect of subsisting Statutory Monogamous Marriage, cannot unilaterally withdraw their said children from their school and take them to unknown place to the Plaintiff without an order of court dissolving their marriage or granting them judicial separation.
2. Declaration that the Defendant cannot unilaterally take her children with the Plaintiff out of Nigeria to another country under any guise or programme or arrangement, without the prior consent and authority of the Plaintiff in writing.
3. Declaration that the Defendant cannot unilaterally change their children’s religious faith to Brother-hood of Cross and Star from the Catholic Faith, without authority of the Plaintiff in writing.
4. Declaration that the Defendant has no lawful authority to take their children to an unknown place to the Plaintiff and withhold the children from the Plaintiff, there being no order of court of law, dissolving their marriage or granting judicial separation.
5. Order of Court directing the Defendant to return the said four (4) children to their school at Madonna Schools, Works Layout, Owerri, Imo State.
6. Order of Court mandatorily compelling the Defendant to return the said children to Plot No. 92B Works Layout, Owerri, Imo State the matrimonial home of Plaintiff and the Defendant from where the Defendant forcefully took them to an unknown destination to the Plaintiff.
7. Order of Court compelling the Defendant to return their said four children to the matrimonial home at No. 92B Works Layout, Owerri, Imo State, where the Plaintiff can give them proper medical attention at all times.
8. Perpetual injunction restraining the Defendant from taking the said children from Plot 92B Works Layout, OwerrI, Imo State the present matrimonial home to unknown place to the Plaintiff and/or changing the children’s faith to the Brother-hood of Cross and Star from the Catholic faith without the prior written consent and authority of the Plaintiff.”

The Respondent filed his writ and served the Appellant on 23/11/06. The Appellant filed divorce proceedings at Calabar on 18/1/08 and asked for custody of the children. The Respondent did not oppose the dissolution of the marriage but opposed the grant of custody of the children to the Appellant. The Respondent secured a stay of proceedings of the divorce petition at the Calabar High Court. The Imo State High Court made an order of accelerated hearing of the suit. The case went to trial. The Respondent as Plaintiff testified and called one witness. The Appellant testified and called two witnesses. The learned trial judge granted declarations and made orders in favour of the Respondent at page 217 of the record in the following terms:

(a) I declare that the withdrawal from school and taking out of home of the Plaintiff’s children by the Defendant without the Plaintiff’s knowledge and consent is not proper in law and is detrimental to the Plaintiff’s interest in the said children.

(b) I declare that the Defendant has no lawful authority to take and keep the said children away from the Plaintiff without his consent.

(c) I order the Defendant to immediately return the said children (1) CHMIA AUGUSTUS NWOSU (JNR) (2) NNAEMEKA ESHIET THEADEDUS NWOSU (3) NNESOMA ROSELINE NWOSU (4) NNEDIMMA MARY FIDELIA NWOSU to their family house and home Plot 92B Works Layout Owerri, Imo State of Nigeria being the home of the Plaintiff.

(d) I hereby restrain the Defendant from further taking or keeping away or continuing to keep away the above mentioned children from their family house aforesaid or away from the Plaintiff or taking the said children to any place or location whatsoever without the knowledge and consent of the Plaintiff.”

Hence this appeal. The Appellant filed notice of appeal dated 3/9/09 contained 17 grounds of appeal. The Appellant’s brief dated 29/10/09 was filed on the same day. A reply brief was also filed on 25/5/10. The Respondent filed an Amended Respondent’s brief dated 12/10/10 on the same day. From the grounds of appeal filed the Appellant distilled 5 issues for determination as follows:

“1. Whether Respondent by his pleadings and evidence established his entitlement to his claims, and if he did, (which is denied), whether the reliefs granted him were those he sought?

2. Whether there was not a miscarriage of justice or a breach of the principles of fair hearing when without any consideration or adequate consideration of Appellant’s most crucial defence the learned trial judge made unjustified strictures in regards thereof?
3. Whether the learned trial judge made his crucial findings on the issues joined by parties in their pleadings so as to render the said findings and his final decision valid?
4. Whether Respondent established by evidence that his marriage is a statutory marriage so as to attract the application and operation of the Infants Law of Imo State to his action?
5. Whether Exh. D, and the evidence of PW2 are admissible evidence, and if there are (which is denied) whether the learned trial judge given the entire circumstances of the case was right in attaching any weight to them?

The Respondent on his part formulated 4 issues similar to those identified by the Appellant as follows:

1. Whether the marriage between the Respondent and Appellant is a monogamous marriage as to attract the Infants Law of Imo State 1994?
2. Whether the Respondent proved his case at the trial court to entitle him to the reliefs’ sought and granted by that court?
3. Whether the relief granted to the Respondent by the trial court are materially different from the reliefs’ he sought at that court?
4. Whether there was a breach of the principles of fair hearing which occasioned a miscarriage of justice to the Appellant?”

After reading the grounds and the issues distilled by counsel and arguments adumbrated therefrom, the court felt the need to exercise its powers under S.15 of the Court of Appeal Act. S.15 of the Court of Appeal Act empowers the court to make an order for determining the real question in controversy in the appeal. To that end, this court asked the counsel in this case to file further briefs in respect of the following questions which were felt to be the real question in controversy between the parties. When the new issues came up for hearing, parties adopted their supplementary briefs in respect of the questions raised by the court. The questions posed by the court are as follows:

1. Whether or not the Appellant has a right to take the children away from the matrimonial home before a formal order of custody is made by a competent court with jurisdiction to determine the issue of custody of the children of a marriage under the Marriage Act.
2. Whether in the circumstances of this case there was a relief seeking for custody of the children to enable the court apply the provisions of the Infants Law of Imo State.

The Appellant’s supplementary brief was dated 26/1/11 and filed on 31/1/11 while the Respondent’s supplementary brief was dated 26/1/11 filed on 31/1/11.

I must say, this is a unique case and it deals with the rights and interests of the parents in a monogamous marriage over the children of that marriage pending formal order of custody. I have had to call for supplementary briefs to enable this court determine the real issues in controversy between the parties. In the briefs hitherto filed, I discovered that peripheral issues of fact were the focus of attention rather than the law regulating the rights of the parties in the circumstances of this case. I will go through the arguments of both counsel on the issues raised by them. I will adopt the issues as distilled by the learned Appellant’s counsel in the determination of this appeal and also determine the questions raised by this court.