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Before Their Lordships
KAYODE ESO Justice of The Supreme Court of Nigeria
MUHAMMADU LAWAL UWAIS Justice of The Supreme Court of Nigeria
SALIHU MODIBBO ALFA BELGORE Justice of The Supreme Court of Nigeria
ABDUL GANIYU OLATUNJI AGBAJE Justice of The Supreme Court of Nigeria
EBENEZER BABASANYA CRAIG Justice of The Supreme Court of Nigeria
Between
FEBISOLA OKWUEZE-Appellant
AND
PAUL OKWUEZE-Respondent
…………………….A…………………….
UWAIS, J.S.C. (Delivering the Leading Judgment): 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,
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,
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