Theresa Temitayo Williams V. Rasheed Ahmed Williams (1987)
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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.
However, the three grounds of appeal filed in this matter to the Supreme Court raise five questions for determination. These five questions formulated in the brief filed by the appellant and restated by appellant’s learned counsel in oral arguments read:
(1) “Did the learned trial judge correctly direct himself as to the law applicable to the matter
(2) Did he correctly identify all the facts and circumstances he had to take into account in reaching a decision
(3) Can it be affirmatively asserted that he gave improper weight to or ignored any of the relevant facts and circumstances
(4) Can it be affirmatively asserted that his decision is otherwise wrong.
(5) If the answer to questions 1 and 2 are in the affirmative and to questions 3 and 4 are in the negative, was the majority decision of the Court of Appeal correct in law in fe-opening the learned trial judge’s decision in the exercise of his discretion and reversing his decision on the grounds upon which he did
Taking the first question first, it is common ground between the parties that the learned trial judge and the Court of Appeal properly directed themselves as to the law applicable to the issue of custody of children of a marriage that is dissolved. Section 71 of the Matrimonial Causes Act 1970 contains the guidelines the courts are to follow in proceedings in respect of custody of children of the marriage and I note with satisfaction that both the High Court and the Court of Appeal made ample reference to it. The section reads:
“(1) In proceedings with respects to the custody, guardianship, welfare, advancement or education of children of a marriage, the court shall regard the interests of those children as the paramount consideration; and subject thereto, the court may make such order in respect of those matters as it thinks proper.
(2) The court may adjourn any proceedings within sub-section (i) above until a report has been obtained from a welfare officer or such matters relevant to the proceedings as the court considers desirable and any such report may thereafter be received in evidences;
(3) In proceedings with respect to the custody of children of a marriage, the court may, if it is satisfied that it is desirable to do so, make an order placing the children, or such of them as it thinks fit, in the custody of a person other than a party to the marriage.
(4) Where the court makes an order placing a child of a marriage in the custody of a party to the marriage, or of a person other than a party to the marriage, it may include in the order such provision as it thinks proper for access to the child by the other party to the marriage or by the parties or a party to the marriage as the case may be.”
Thus, running through the whole section is the paramount and dominant position the welfare of the child occupies in the variety of matters to be considered before making the order. If placing the child in the custody of either parents will not promote the welfare of the child, the court is not obliged to make such an order. Thus, when the learned trial judge in setting out the principle of law by which he would be guided said:
he was not in error.
All the justices of the Court of Appeal in their judgments approved the above statement as a true statement of law. However, Nnaemeka-Agu, JCA, in his lead judgment in the court below, went further to elaborate on the ingredients of custody when he said:
“I take the view that custody of a child essentially concerns not only control of the child but also carries with it the necessary implication of the preservation and care of the child’s person, physically, mentally and morally. In other words, responsibility for the child in regard to his/her needs – food, instruction, clothing and the like (see Wedd v. Wedd (1948) SASR. 104, per Moyo, J. at p. 106). Although S.71 of the Matrimonial Causes Decree 1970 treats custody, guardianship, welfare, advancement or education of the child, as if they were separate subjects, it is sometimes difficult to consider any of them in isolation when considering the welfare of a child. They dovetail into each other.”
It seems to me that order for custody must have in view the opportunity of sound education as well as physical and mental welfare. A parent who will deny these to his or her child is not worthy of an order for custody from the court.
An order of custody is not a penal order on either parent and should not be construed as such. It imposes a responsibility not to be lightly taken.
In the instant appeal, the evidence clearly established that Kafilat Abimbola Williams had been in the custody of the appellant since birth and that the appellant has borne single-handedly the cost of the education of the child at her own election so far.
The evidence established that the appellant holds a responsible post in the public service of Lagos State which made it impossible for her to give her best personal attention to the child during the hours of work. She however according to the evidence made suitable arrangements for the child’s care and attention during the period. The respondent has only complained of the appellant’s failure to give the child her personal attention. His proposal is to send the child to a boarding school abroad in Europe. Education or the opportunity for education is in the best interest of a child if it is in a proper environment. For a child of tender years, education outside the proper environment, i.e. country of origin is bound to give a distorted view of life and cannot, in the final analysis, be in the best interest of the child.
It appears to be the fashion among certain classes of people to regard provision of educational opportunities for children of tender years outside this country as the ultimate. Their judgment has not yet been called into question and until then, time will tell whether what has been done is in the best interest of the child.
In stating the principles on which custody is to be decided, the learned editors of Rayden on Divorce Vol. 1 12th Edition at page 967 made references to the provisions of Guardianship of Minors Act 1971 and Guardianship Act 1973 both being English Statutes. The guiding principles enunciated in those Acts though not binding on this court, contain the kernel of the declarations in section 71 of our Matrimonial Causes Act 1970 and I will adopt them as the necessary intendment of our law. They are:
(1) Where in any proceedings before any court the custody or upbringing of a minor is in question, the court in deciding the question shall regard the welfare of the minor as the first and paramount consideration and shall not take into consideration whether from any other point of view the claim of the father in respect of such custody is superior to that of the mother or the claim of the mother is superior to that of the father.
(2) In regard to the custody or upbringing of a minor, a mother shall have the same rights and authority as the law allows to a father and the rights and authority of mother and father shall be equal and exercisable by either without the other.
(3) Nor is there necessarily any rule that mother has a paramount claim as against other relations, at any rate where the father is alive and support the application of those relations. In re A, an infant (1959) C.L.. 950 (1959) Times March 25th C.A.
(4) The welfare of the infant although the first and paramount consideration is not the sole consideration and the conduct of the parties is a matter to be taken into account. Re L (infants) (1962) 3 All ER. 1
(5) The adultery of a party is not necessarily reason for depriving that party of custody unless the circumstances of the adultery make it desirable.
(6) All the circumstances must be considered Re A (an infant) supra.
(7) The fact and advantages of brotherhood and sisterhood must also be considered when there is more than one child of the family and it is proposed to give custody of one child to one person and another to a different person. Wakeham v. Wakeham (1954) 1 All ER 434 CA at 435.
(8) There is settled rule that a child of tender years should remain in the custody of the mother Re B. (an infant) (1962) 2 All ER 872; W v. Wand C (1968) 3 All ER 408 but obviously the care and supervision that a mother who is not out at work can give to little children is an important factor. In Re O. (infants) (1971) Ch 748 (1971) 2 All ER 744 CA at 746, 752.
(9) In dealing with the questions of custody or access the court will have regard to the particular circumstances of each case always bearing in mind that the benefit and interest of the child is the paramount consideration and not the punishment of a spouse for misconduct. B. v. B. (1924) p.176.
(10) The wishes of an unimpeachable parent stand first. Re Thain, Thain v. Taylor (1926) Ch 676 approved in Mckee v. Mckee (1951) AC 352,366; (1951) 1 All ER. 942, 949 PC.
There is nothing before the court to disqualify any of the parties from entitlement to an order for the custody of Kafilat Abimbola. It appears from the facts on record that she is now schooling in England. It must be that the appellant decided to make available to her the same opportunity for sophisticated western education as the respondent has made available to her two brothers. Be that as it may, the issue of custody is before this Court and still has to be determined.
There is no doubt that it had not been easy for the Court of Appeal to find any fault with the appellant in whose custody the child had been since the separation. This is evident from the judgment of Nnaemeka-Agu, JCA. (with whom Pepple, JCA.) concurred, when he said:
“The absence of the respondent in this case made it impossible to judge either her character which could be decisive in such matters or to know that she has been exercising good care and attention on the girl in question. See H. v. H & C (1961) 1 All ER. 262. In the instant appeal, the appellant alone gave evidence; the respondent was absent due to no known reason.”
With respect to the learned justice of the Court of Appeal, I would say that the absence of any evidence of her character made it impossible to judge her character. I would also go further to say that the absence of any evidence impugning her conduct in the exercise of care, control and supervision of the child made it impossible to damnify and condemn the appellant. The evidence led does not, in the least, amount to an indictment. On one view, it amounts to a commendation and a mother’s concern for the welfare of her child.
The other adverse comment made by the learned Justice of the Court of Appeal is that since the evidence on the issue of custody was not sufficient, the appellant (then respondent before the Court of Appeal) did not ask the Court of Appeal for a new trial. In the words of the learned Justice:
“Although sometimes when evidence given by the parties on the issue of custody is insufficient, a new trial may be ordered (see W v. W (1971) 117 Sol. Ja 367 CA) in the instant case, the respondent had opportunity to testify but chose to rely on only the cross-examination of her solicitor which I have shown is inadequate, and she has not asked us for a new trial. I shall order none. ”
Having complained of the insufficiency of the evidence, the learned Justice of the Court of Appeal proceeded to hold:
“On the only evidence before the court, there can be no doubt that the appellant made out a good case for custody of his daughter.”
This view of the evidence is totally different from the view held by the learned trial Judge. In his judgment, Oladipo, Williams, J. said:
” ….. It is reasonable to say that the best arrangement for the welfare of any child is that he or she should be with his or her parents .
……….. There is no evidence that the girl who now lives with the respondent is unhappy or is suffering unduly because she has not as yet been given the benefit of the sophisticated education which her brothers are now receiving abroad. The two sons could be more comfortable in their present environment in the United Kingdom and during their brief visits to this country but great comfort is not the criterion for measuring the welfare of a child.
It has been held that if a parent could provide a home and the necessities of life to a child, he or she should not be deprived of custody unless guilty of misconduct. See In re O’Hara (1900) 2 I. R. 232. It is the evidence of the petitioner that the respondent is a Chief Magistrate in the Lagos State Judiciary and one should be able to say with some degree of certainty that the respondent should be able to afford to give her daughter the necessities of life. It should be mentioned that the petitioner did say in his evidence that the respondent usually left her daughter after school in the care of her friends while she is at work.
Without any other evidence, this is no evidence that the girl is unhappy or likely to be unhappy, the desire of the petitioner that the girl be allowed to enjoy the more comfortable and sophisticated environment of her brothers is quite understandable but if one were to accede to that wish, one would be running the risk involved in breaking the tie which must have existed between the respondent and her daughter. See Laxton v. Laxton and Eaglan (1966) 2 All ER 977. I am of the considered opinion that it would be in the best interest of the children that the two sons should remain under the care and control of the petitioner and that the girl should remain with the respondent.”
The position therefore is that there is no evidence before the Court to disqualify either parent from being awarded the custody of Kafilat Abimbola their daughter. The fact that she had been in the custody of the appellant since 1975 tilted the scale substantially in favour of the appellant. The absence of any evidence of plans and proposal for her future education is definitely against her while the evidence given by the respondent of his plans and proposal for her education is in his favour.
In the circumstances, an order for joint custody with care and control to the appellant and responsibility for education to the respondent will be most appropriate. It will meet the justice of the case and take care of the welfare of the child.
I refer to the case of Allen v. Allen (1948) 2 All ER. 413 – a decision of the English Court of Appeal. The facts are short and the head note reads in part:
After a decree of divorce had been granted to a husband on the ground of his wife’s adultery, an order was made granting to the husband the custody, care and control of the daughter of the marriage aged 8 years who, until then had been in the care and under the control of the mother. Since the decree absolute, the mother had married the co-respondent. The judge, in deciding to make the order regarded the moral welfare of the child as of paramount importance and took the view that the wife, having once committed adultery, was likely to do so again, and that as the husband was re-married to a wife against whose moral character no charge could be made, he was more fit to have the care of the child. There was little to choose between the accommodation offered by the parties, but it was undisputed that the child was happy with her mother and making good progress at school and there was medical evidence to the effect that the child’s health would suffer if she were separated from her mother.
On appeal by the wife against the order, Held, the judge had not applied the proper test, the welfare of the child both moral and physical, being the paramount consideration and therefore the appeal must be allowed.”
In his judgment, Wrottesly, L.J. said at page 414:
“The welfare of the child, both moral and physical was the paramount consideration. It was impossible to say because a woman had once committed adultery, she was not a fit person vis-a-vis one who had not to look after a child. There was no suggestion that the mother was promiscuous or a bad mother or a bad housekeeper, or anything which made it undesirable for her to look after the child. All the evidence in the case is strongly in favour of leaving the child with her.”
Evershed L.J., (as he then was) also commented in concurrence as follows:
“This court is always loath to interfere with the discretion of a learned judge but I agree that here we are compelled to do so. The learned judge seems to have read the word “moral” into S.1 of the Guardianship of Infants Act 1925 before “welfare”. Further, he has inferred that a woman who has committed adultery will always repeat it. Both suppositions are wrong. It would not be right to snatch this female child of eight from her mother and force her to make a new start with her father and step mother. The court has sympathy with the father who has been gravely wronged and if he wants access to the child, not only on odd days, but for a substantial period during the holidays, he is entitled to have it.”
In the case of Re W (an infant) (1963) 2 All ER. 706 at 711, Pennycuick, J. commented and I agree with him:
“I see force in the comment of the learned stipendiary that it is in the interest of the infant that the father should have a practical and effective interests in its education. I think however that this point is met to a great extent by the following considerations, namely:
(1) the fact that the mother had the custody would not prevent the father from making plans for the infant’s education;
(2) any order relating to an infant is in its nature subject to reviews and where the custody of the infant is given to one parent, it is always open to the other parent to make a further application to the court;
(3) it is also open to either parent to apply to the Chancery Division by way of wardship proceedings, and that is probably the right course in a case of any complexity;
(4) if one parent has legal custody and the other care and control, and they are unable to agree, a further application by one or other to the court is probably inevitable in any case.”
In this case, Pennycuiuk, J. held that he has no jurisdiction to award legal custody to one parent and care and control to another. But on appeal to the Court of Appeal, the decision was reversed. See R. W. (J.C.) (an infant) (1963) 3 All ER. In that case, Ormerod, L.J. at p. 462 said:
“It is true to say that the notion has developed considerably since 1886 for orders for divided custody to be made but I can see no reason why they cannot be made under the jurisdiction conferred by section 5 of the Act of 1886 without any unnecessary straining of the language of that section.
Upjohn, L.J. at p. 465 said on the same issue:
“It seems to me in those circumstances, quite impossible to construe this section as giving this very emasculated jurisdiction. The section plainly gives power to deal with custody not indivisibly but divisibly, that is to say in this sense that the court can deal with each and every aspect of the constituent elements of custody. It can give care and control to one parent with access to the other and can vest the remaining constituents of custody in the other as the stipendiary magistrates did in this case. Take for example, which does not arise here but which I have no doubt does frequently arise, parents may be of different religious belief and I can see nothing whatever to prevent care and control and charge of religious upbringing being committed to one parent and all the other constituents of custody vested in the other. This is a question of discretion in each case.”
And Davies, L.J. said at p. 467:
“So if ‘custody’ as the learned judge thought means custody whole and undivided it seems to me that there is no power to make orders for access, such as have been made for over one hundred years by the divorce courts, there being no jurisdiction to make them. This is quite impossible conclusion.”
I will therefore allow the appeal, set aside the decision of the Court of Appeal and in its stead, substitute the following orders:
The appellant and the respondent shall have joint custody of their daughter, Kafilat Abimbola Williams, the appellant exercising care and control of the child while the respondent takes charge of the education of the child. There will be no order as to costs.