Theresa Temitayo Williams V. Rasheed Ahmed Williams (1987)

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OBASEKI, J.S.C. 

The short point in this appeal relates to the proper order to make in respect of the custody of one of the children of the marriage between the parties to this appeal that has been dissolved by a decree nisi made by the court of trial. The decree nisi has since been made absolute.

The name of the child in question is Kalifat Abimbola Williams. There were three children of the family, namely, Rasheed Ayodele Williams (male); Hakeem Akintola Williams, (male) and Kafilat Abimbola Williams (female). There was no contest about the custody of Rasheed Ayodele Williams and Hakeem Akintola Williams both of whom have been in the care and custody of the respondent since the parties separated on October 1, 1975. The contest is only in respect of the custody of Kafilat Abimbola Williams who has been in the care and custody of the appellant since the parties separated on October 11975.

Oladipo Williams, J. who heard and determined the petition granted , custody of the child to the appellant. This was after hearing evidence from the respondent. The appellant did not testify in support of her application for custody and did not appear at the hearing of the petition. The Court of Appeal to which the respondent took the matter on appeal, by a majority of two to one, reversed the decision of Oladipo Williams, J. and granted custody to the respondent.

The appellant being dissatisfied has brought the issue of question of custody to this Court for determination.

A brief resume of the facts is desirable for the purpose of this judgment. The parties were married at Woodgreen Marriage Registry, London on 30/3/63. After the marriage, the parties cohabited at diverse places both in London and Lagos including 16B Airport Road, Ikeja. Following the breakdown of the marriage, the parties have been living apart since 1st October, 1975, a period of over 6 years preceding the presentation of the petition. This period of separation started on 1st October, 1975 when the respondent appellant left the matrimonial home. The separation created problems for the respondent and according to his testimony

“since she left and there were no boarding schools in Lagos, I decided to educate the children in England. Consequently, the first two boys were taken to Abbey Junior School in Kent in England where they were till 1980 before they left for King’s Junior School (for the elder) and for the younger, King’s Junior School, Cantabury, Kent in England …The two boys have always been with me for the greater part of the time. The other part they spent abroad …. I have a lady friend, a friend of the family who comes in to look after them while they are here ..

The appellant left with the only daughter of the family, Kafilat Abimbola Williams. Since she left, the respondent has not set his eyes on her. All the efforts made by the respondent yield no results. The letter, Exhibit 6 he wrote was returned with a covering note endorsed on it by the appellant. The appellant has turned down all approaches by the respondent to have a say in the upbringing and education of Kafilat Abimbola Williams. The treatment she gave to his letters Exhibits 6 and 7 typifies her attitude. She refused even to let him pay Kafilat’s fees. Opposing the appellant’s request for custody in his testimony, he said:

“I could pray the court not to grant her request for custody of Abimbola. She has no time for her. She leaves for her work at 7.00 a.m. She leaves her in the care of maid who will take her where they want to go and take taxi to school. In the afternoon, she is still in court. She has an arrangement with Mrs. Finnih and Mrs. Egbeyemi, her friends who collect her and help her until she goes to collect her in the evening.

In the last two years she has been travelling in and out of the country leaving the girl in the care of friends. All these convince me that she has no time for her.

I will like the court to grant me a divorce because our marriage has broken down completely and to grant me custody of the girl for a better quality of education and hope thereafter. I want also the custody of the two boys.”

As I said earlier, the appellant did not testify at the hearing. Indeed, she did not put in any appearance at the hearing. She was a Chief Magistrate at the time of the hearing of the petition. She is now a judicial officer having been elevated to the High Court Bench.

The evidence on record does not lead to an easy resolution of the question for determination, i.e. whether the interest and welfare of Kafilat Abimbola Williams will be better served by her remaining in the custody of the appellant or transferring to the custody of the respondent. The evidence does not show that the appellant has no time for Kafilat. Rather, it shows that adequate arrangement is made for her while appellant is at work.

The desire of the respondent to make available to her the same educational opportunities as the two brothers are enjoying in England, laudable as it is, cannot be a ground for denying the respondent custody of Kafilat. The rebuff the respondent has suffered from the hands of the appellant in his effort to contribute his quota to the welfare of Kafilat is however a ground for granting split or joint custody. A child is entitled to enjoy the best care and attention the parents can offer. Provided that a parent is in a position and willing to provide them, the child should not be denied them by the actions of either parent.