Mr. Benjamin Folorunsho Alabi V. Mrs Eunice Ifewunmi Alabi (2007)

LawGlobal-Hub Lead Judgment Report

AGUBE J.C.A.

This appeal is against the judgment of the High Court of Kwara State sitting at Offa Judicial Division which judgment was delivered on the 14th day of November 2005 by M. O. Adewara J.

The petitioner (now appellant) had in paragraph 11 (Eleven) of his petition (As Amended) sought for the following orders:-

(a) A declaration that the respondent’s behaviour is one, which the Petitioner cannot reasonably be expected to live with.

(b) A decree of dissolution of marriage between the petitioner and respondent on the ground that the marriage has broken down irretrievably.

(c) An Order of Custody of the only child Elizabeth Oyeronke Alabi for proper care, affection, financial support and proper upbringing.

Upon being served with the petition the respondent filed a reply thereto and cross petition for divorce dated 23rd day of June, 2003 wherein she in paragraph 39 thereof prayed for the following orders:-

“( 1) A declaration that the petitioner is guilty of adultery with one Aramide Babatunde.

(2) The sum of N 1 million damages against petitioner and the said Aramide Babatunde for adultery.

(3) The dissolution of her marriage to the petitioner as it has broken down irretrievably,

(4) The respondent/cross-petitioner is granted custody of the only child of the marriage viz: Miss Elizabeth Oyeronke Alabi:

(5) Twenty-thousand naira (N20, 000.00) monthly maintenance cost against the petitioner.

(6) Such other order(s) as this honourable court may deem fit to make in the circumstance of this petition.”

Reacting to the cross-petition, the petitioner filed what he termed a “Reply to Answer Cross Petition for Divorce”, dated 8th day of May 2004, while the respondent/cross-petitioner on her part further filed a rejoinder to the petitioner’s reply. There were interlocutory applications by the parties, which were duly disposed of culminating in the amended petition by the petitioner.

It is also pertinent to note that Aramide Babatunde with whom the petitioner allegedly committed adultery was joined in the cross petition as a party but refused to show up in court.

Issues having been joined the petitioner and respondent/cross petitioner testified with the petitioner calling no witness while the respondent/cross-petitioner called a witness who happened to be her father.

At the close of their respective cases the learned counsel for the parties filed their written addresses, which they adopted on the 13th October, 2005.

In his considered judgment, the learned trial Judge held:-

“On the whole, this petition fails and it is hereby dismissed. On the other hand, the Cross-Petition by the 1st respondent succeeds and is accordingly granted.”

It is against this decision of the learned trial Judge that the appellant has now appealed to this court.

At the lower court two original grounds were filed and subsequently leave was granted the appellant by this Honourable Court, to amend his notice and grounds of appeal and to file six additional grounds on the 11th day of October 2006. By the amendment, a whopping eight (8) grounds of appeal were deemed filed and served on the respondent.

Also in accordance with the rules of this court briefs of argument were ordered to be filed and exchanged by the parties.

For the avoidance of doubt the grounds of appeal with their particulars are reproduced hereunder as follows:-

“1. The Judgment/Decision of the High Court of Kwara State presided over by Honourable Justice M. O. H Adewara is unreasonable and cannot be supported having regards to the evidence before it.

2. The trial Judge misdirected himself and came to a perverse finding of facts which have occasioned a miscarriage of justice to the appellant when he held that “I therefore hold that the allegation of adultery made against the petitioner by the 1st respondent in her cross-petition has been proved.”

Particulars of Misdirection

(a) The named adulterer with whom the petitioner was alleged to have committed adultery was never called or put on notice of the proceedings.

(b) It is fundamental in Matrimonial causes suit that the alleged adulterer must be made a party to the suit.

(c) The court did not make an order dispensing with the name of the named adulteress before making its findings.

Ground 4:-

The lower court erred in law in awarding N20, 000.00 damages for adultery against the petitioner when:-

(a) There is no evidence on the record of the actual pecuniary assistance of the respondent to the petitioner.

(b) Issue of adultery against a party is competent for adjudication only when the named adulterer is made a party and he/she is put on notice of the petition.

(c) There is no judicious or judicial basis for the amount awarded.

(d) The respondent admitted knowledge of the purported relationship between the appellant and the named adulteress.

(e) The power of the court to grant damages for adultery becomes extinguished upon evidence of condoning by the party making the allegation…

Ground 5:

The learned trial Judge erred in law in according custody of the child to the respondent when on a proper use of the discretion the petitioner ought to have had custody of the child.

Particulars of Error

(a) In custody cases it is the welfare and education of the child and not trivialities on the side of a party that constitute the material consideration as done by the lower court.

(b) The respondent admitted conceding custody of the child to the petitioner by a written instrument, which was wrongfully rejected by the court.

(c) The un-impeached evidence of the petitioner is that the respondent is not a caring mother who comes home late in the night.

Ground 6:-

The trial Judge misdirected himself in law and fact in holding that:”

“… I think they are right… he would not have sent the child and mother out of his house as he did if he truly has the love of the child at heart …”

Particulars of Misdirection

(a) DW1 did not give evidence of being present when the petitioner purported cruelty of sending the respondent and the child out of his house took place.

(b) In Law only the sufferer proves facts in issue relating to pains, cruelty or adversity, and through a witness.

(c) The burden of proof of cruelty rests on the respondent and there is no credible evidence of cruelty from the respondent.

Ground 7:-

The judgment is against the weight of evidence.

Ground 8:-

The learned trial Judge misdirected himself in law and fact in holding thus:-

“The petitioner is not a sincere witness …

“There cannot be a better evidence of adultery than having a child outside wedlock. I therefore hold that the allegation of adultery made against the petitioner has been proved… “, and which misdirection has occasioned a miscarriage of justice.”

Particulars of Misdirection

(1) Committing adultery under the Matrimonial Causes Act arises only during the subsistence of a valid marriage by either of the couples.

(2) There is no evidence before the court that as at the time the petitioner conceived the child under Exhibit 2, he had contracted a marriage under the Matrimonial Causes Act either with the respondent or any other person.

(3) The respondent admitted knowing the named adulteress and did not take any legal redress against the purported relationship with the petitioner.”

From the above grounds of appeal, the appellant’s counsel in their brief of argument distilled two issues which are couched as follows:-

(1) Whether on the evidence before the lower court, the allegation of adultery against the appellant is sustainable to warrant the award of N20, 000.00 damages against him.

If the answer to Issue 1 is in the negative, was the trial court right in making the award of custody it made in favour of the respondent.”

According to the learned counsel to the appellant Issue Number 1 relates to grounds 2, 3, 4, 7 and 8 of appeal while Issue 2 relates to grounds 5 and 6 thereof.

On his part Mrs. C. O. Roland Otaru for the respondent adopted the two issues as formulated for determination by the learned counsel Goke B. Akande Esq. for appellant.

On the 12th day of December 2006 when the appeal was billed for hearing, learned counsel for the appellant adopted the brief of argument filed on the 11th October 2006 and the reply brief of 17th November, 2006 and urged the court to uphold their submissions and allow the appeal. Learned counsel for the respondent Mrs. Otaru who appeared with Chief/Mrs V. O. Awomolo, Tunde Faiola Esq. And Miss Odemi Omobuwa intimated the court of the preliminary objection as contained in their respondent’s brief filed on the 17th of November, 2006 but dated on 16th of November, 2006 and adopted all the arguments in the brief to urge the court to dismiss the appeal of the appellant.

Arguing Issue Number 1 (one) on Whether on the Evidence before The Court below, The Allegation of Adultery against the appellant is Sustainable To Warrant The Award of N20, 000.00 damages against him, learned counsel for the appellant submitted that where a statute prescribes a particular form of procedure for the doing of an act any step taken by a party in contradiction to the particular procedure is void. Reliance was placed on the case of F.G.N. v. Zebra Energy Ltd. (2002) 18 NWLR (Pt.798) 162 at 200-201 for the above submission.

Citing again Section 32 (1) & (2) of the Matrimonial Causes Act, 1990 it was his further submission that where a party to a Marriage is alleged to have committed adultery with a specified person, such a person is required to be made a party to the proceedings but that in this case Aramide Babatunde the alleged adulteress was not joined notwithstanding the fact that the lower court made an order to join the said Aramide.

He however contended that the cross petitioner stopped at the making of the order of joinder by the court but did not go further to put the name of the adulterer on the notice of the order as the processes of the court were not served on the purported adulteress.

Relying on the case of Ononye v. Chukwuma (2005) 17NWLR (Pt. 953) 90 at 119; Anyaso v. Anyaso (1998) 9 NWLR (Pt.564) 150 at 179-180 and sections 32 and 85 of the Matrimonial Causes Act, 1990 it was contended further that failure to serve the adulteress with the court processes rendered the proceedings void as this case does not come within the exceptions provided for in cases relating to sodomy and rape and that on the authority of Kallamu v. Gurin (2003) 16 NWLR (Pt.847) 493 at 517, the wordings of section 32(2) of Matrimonial Causes Act is mandatory.

Counsel for the appellant also veered into the High Court Rules of Kwara State which makes provision for substituted service, the maxim ‘expressio unius est exclusio alterius’, Order IXMC sub rule 54 of the Matrimonial Causes Act, sub rule 6(1) & 7(1) and (2) arguing on the authority of Ebe v. Ebe (2004) 3 NWLR (Pt.860) 215 at 234-235 and submitted that the respondent having failed to effect service of the court processes on the supposed adulterer, the jurisdiction of the lower court was extinguished and the suit incompetent on the issue of adultery. See Seatruck Ltd. v. Anigboro 5 NSCQR at 138; (2001) 2 NWLR (Pt. 696) 159 which counsel for the appellant further relied upon to submit that Section 32(1) and (2) of the Matrimonial Causes Act 1990 is a substantive Law which cannot be waived and that not withstanding that parties did not consider the Issue of jurisdiction in the lower court a condition precedent for the vesting of the court with jurisdiction had not been fulfilled

Learned counsel for the appellant went further to refer to the evidence of the petitioner/appellant in defence of the allegation of adultery at page 84 of the records, evidence of respondent’s admission at page 88 that she condoned the adultery and placing reliance on Rayden on Divorce, 19th Edition page 172-173 posited that such acknowledgement and failure to take action to remedy her legal right extinguished the right of the Respondent to raise the issue of adultery in the petition for divorce.

Citing again page 20 of the record which contains the petition of the respondent learned appellant’s counsel further posited that the complaint of adultery came 3 years after the marriage which is a violation of section 31(3) of the Matrimonial Causes Act, 1990 which voids award of damages where adultery has been condoned by section 31 (2) thereof.

Learned counsel quarreled with the court’s holding at page 132 of the records where according to him the court below confused conceiving a child out of wedlock and adultery under the Matrimonial Causes Act 1990 and referring us to the definition of “Out of wedlock” by Webster’s Collegiate Dictionary 10th Edition at page 1335 thereof argued that what transpired between the appellant and Aramide Babatunde who got pregnant and gave birth to a child 2 months after the wedding to the respondent could not amount to proof of adultery as held by the learned trial Judge.

Further references were made to “Words and Phrases Legally Defined” 2nd Edition at page 46 by John Sanders on the definition of adultery submitting that in the instant case there was no evidence that appellant had sexual intercourse with the adulterer who was not put on notice of the proceedings, or that the parties were already married as at the time the appellant impregnated Aramide who gave birth two months after the wedding which would have amounted to a crime.

Learned counsel also condemned what he termed the barrage of personal opinion of the Learned trial Judge at page 132 of the records which according to him lacked credible evidence in support but that it biased the court and obscured his sense of justice in holding that the appellant was not a sincere or truthful witness and thus influencing him in awarding custody to the respondent. For this position he called in aid the dictum of Lord Fletcher Morton in the case of IN Re- Enock v. Zaratsky Bock & Co’s Arbitration (1910) 1KB 327 and concluded that the judgment of the court below was bereft of the above admonition and adopting his first leg of arguments on the issue of adultery contended on the issue of consequential damages of N20, 000.00 that the award by the trial Judge was misconceived since the respondent failed to prove abortion.

Still on the award of N20, 000.00 damages the learned counsel for the appellant relied on Macfoy v. U.A.C. Ltd. (1962) AC 152 and Madukolu v. Nkemdilim (1962) 2 SCNLR 341, Section 139 of the Evidence Act and contended that in the absence of admission of adultery by the appellant, in matrimonial proceedings an assessment of the actual value of the wife lost is a measure of the pecuniary contribution or assistance the wife was making to the husband before the third party (adulteress) entered into their lives but that in this case there is no such evidence.

Citing F.G.N. v. Zebra Energy Ltd. supra at 200-201 and Oki v. Oki (2002) 13 NWLR (Pt.783) 89 at 104 he urged this court to reverse the decision of the learned trial Judge since he did not exercise his discretion properly and all the ingredients for the reversal of the decision exist in our instant case.

He prayed that Issue Number 1 be resolved in favour of the appellant.

It is pertinent to note that learned counsel for the respondent raised a preliminary objection in the notice filed on 17th November, 2006 which states thus:-

“1. That grounds 1 and 5 contained in the amended notice and grounds of appeal dated 21st of April, 2006 are incompetent and afortiori liable to be struck out.”

Arguing the preliminary objection Mrs. Otaru contended that ground No. I contained in the notice of appeal is incompetent as couched.

She maintained that the above ground is unknown in civil appeals except in criminal appeals but that even then; the ground has been abandoned since learned counsel for the appellant formulated no issue encompassing the said ground.

She then submitted that where an issue is raised in respect of a ground of appeal and no argument is taken thereon, the ground of appeal ought to be struck out. Placing reliance on Jubrin v. Baba (2004) All FWLR (Pt. 220), (2004) 16 NWLR (Pt. 899) 43 and Morakinyo v. Adesoyero (1995) 7 NWLR (Pt.409) 602 she asserted that by failing to canvass argument on ground 1 of the grounds of appeal, the said ground should be struck out.

On ground 5 it was contended that the particulars thereof in support are incompetent particularly number (6) thereof. Quoting the said particular it was again submitted that there is no appeal on the rejection of a written instrument which was ‘wrongfully rejected’ by the lower court.

It was her further argument that the rejection was an interlocutory decision which emanated from page 76 of the records where the learned trial court rejected two written instruments on the alleged admission of the respondent conceding to the custody of the child of the marriage.

She stated further that the above ruling was delivered on the 17th day of February, 2004 and the appellant did not seek leave for extension of time to appeal against same. The failure according to learned respondent’s counsel is fatal to the ground of appeal No.5 and accordingly urged us to hold that the appellant cannot smuggle in the said particular in Support of ground 5.

Finally the learned counsel cited the case of Ajidahun v. Ajidahun (2000) 8 WRN 17; (2000) 4 NWLR (Pt. 654) 605 to submit that since the appellant did not appeal against the said ruling, the ruling remains valid and cannot by any imagination form part of the particulars of ground 5.

On the whole she urged the Honourable court to uphold the preliminary objection. In his reaction the learned counsel for the appellant urged the court to discountenance the preliminary objection for the following reasons:-

1. That the appellant having not hinged any issue on ground 1 of the notice of appeal, that ground is deemed abandoned and the only competent omnibus ground is ground 7 which is not disputed.
2. That on ground 5, the fact that one of the particulars of a ground of appeal is incompetent does not render the entire ground incompetent. Furthermore, as the appellant did not raise any issue regarding rejection or admission of any document in the argument in support of that ground, it is in-consequential to the issue formulated.
3. That on the issue of leave which was not obtained before appealing against the interlocutory ruling the time prescribed by section 25(2) (a) of the court of appeal Act admits of exceptions where the appeal relates to rejection of evidence or wrongful admission of evidence as in the second particular of ground 5 complained of, because in Law such complaint would not be regarded as interlocutory decision. The authority of Onwe & Ors. v. Nwaogbuinya (2001) 5 NSCQR 93 at 106; (2001) 3 NWLR (Pt. 700) 406 was cited in support of the above submission and to hold that the inability of the appellant to appeal against the ruling does not preclude him from including a ground of appeal against the ruling.

Learned counsel further cited Order 3 Rule 22 of the court of appeal rules, 2002 to urge the court to discountenance the objection as a misconception in law as to the power of the court.

Relying on the case of Isaac v. Comos (2000) 2 SCNQR 450 at 475 where the Supreme Court interpreted the above cited rule he finally submitted that it is still competent to raise the issue of rejection of the document even though no application to appeal out of time against the court’s ruling was made.

Replying to the argument of counsel to the appellant on the main appeal the respondent’s counsel particularly on Issue Number 1 (grounds 2, 3, 4, 5 and 8) asserted that the learned trial Judge was right in awarding the sum of N20, 000.00 damages against the appellant on the following grounds:-

(a) The appellant never disclosed to the respondent about the subsisting relationship between him and Aramide Babatunde, and that the certificate of marriage exhibited described both parties as Bachelor and Spinster as at 23rd January, 1999.

(b) Aramide Babatunde gave birth to a baby boy named Albert on the 3rd day of October, 1999 about 8 months after the marriage; whereas appellant claimed Albert was born in March, 1999, after the marriage.

(c) Appellant tendered exhibit 2 and testified as to knowing Aramide Babatunde as the mother of his son Albert Segun Alabi born on 2nd March 1999. Also the evidence of the appellant under cross-examination at page 85, lines 7 and 8, 21, page 88 lines 11-14 go to show proof of adultery by the petitioner more so when same has been admitted by the petitioner.

It was the further submission of the learned counsel for the respondent that by virtue of section 31 (1) of the Matrimonial Causes Act the Lower Court was right in awarding damages against the petitioner for adultery.

On the submission by the learned counsel for the appellant that Aramide Babatunde was not called as a witness nor served with the processes of court the learned respondent’s counsel further submitted that the said Aramide need not be called by the respondent for the following reasons:-

(1) The petitioner admitted in his oral testimony and exhibit 1 that Aramide Babatunde had a son for him;

(2) There was evidence from both parties that their marriage was contracted on 23rd January 1999 while Aramide Babatunde gave birth on 2/3/99 during the subsistence of the marriage between the parties.

(3) No damages were awarded against the said Aramide.

(4) Aramide Babatunde was joined in the proceedings but failed to come to court.

(5) The petitioner ought to have called the said Aramide to prove that the petitioner did not commit adultery with her.

(6) It was also in evidence that the said Aramide Babatunde had another baby boy for the petitioner in 2001 named Williams Alabi.

It was submitted by the respondent’s counsel that the award of N20, 000.00 is reasonable in the circumstance and that the appellant did not appeal on the N5, 000.00 awarded against him for the maintenance of the only child of the marriage and the award stands.

He finally urged the court to dismiss the appeal and the grounds upon which Issue Number 1 (one) was formulated because on the authority of Iriri v. Erhurhobara (1991) 2 NWLR (Pt.173) 253 what is admitted needs no further proof.

I shall proceed straight a way to deal with the preliminary objection raised by the respondent’s counsel in the respondents brief of argument, against grounds 1 and 5 (particular 6) thereof of the grounds of appeal.

Ground 1 of the amended notice of appeal states that:-

“The judgment/decision of the High Court Kwara State presided by Hon. Justice M. O. Adewara is unreasonable and cannot be supported having regards to the evidence before it.”

Whereas the respondent’s counsel has submitted that such a ground is only cognizable under criminal appeals, the learned appellant’s counsel in his reply brief concedes that the ground has been abandoned since no issue was formulated out of it. In Morakinyo v. Adesoyero (1995) 7 NWLR (Pt. 409) 602 at 611 paras. E-F Salami, JCA held as follows:-

“The sixth ground of appeal was deemed abandoned by the defendants who are hereinafter referred to as appellants. The reason being that the ground of appeal was not related to any of the six issues formulated in the appellants’ brief of argument. Consequently ground 6 of the grounds of appeal is struck out.”

See Jubrin v. Saba supra cited by the learned respondent’s counsel. In this case since no Issue was formulated out of ground 1 of the grounds of appeal and the learned counsel has conceded to the abandonment of the said ground, the said ground 1 is accordingly struck out.

On ground 5 particular (6) thereof which avers that:-

“(b) The respondent admitted conceding custody of the child to the petitioner by a written instrument which was wrongfully rejected by the court,” the contention of counsel for the respondent is that the appellant ought not have made same an issue in this appeal since there is no appeal against the rejection of the written instrument which was by way of interlocutory ruling of the lower court delivered on the 17th day of February, 2004 and that the appellant failed to seek leave to appeal against that ruling and cannot smuggle same as a particular to support ground 5 of the appeal.

Arguing per contra, the learned appellant’s counsel was of the view that the mere fact that a particular of a ground of appeal is incompetent does not render the entire ground incompetent.

He has however argued that since the complaint of the respondent’s counsel is not on the entire ground 5 and the appellant has not proffered any argument relating to that particular (6) of ground 5 it is inconsequential to the issue formulated.

On the issue of leave to appeal out of time, appellants counsel has cited section 25(2)(a) of the court of appeal Act, 1976 which is an exception in that the rejection by the court of evidence and wrongful admission thereof which is complained against, would not be regarded as interlocutory decision. Citing Onwe v. Oke supra, he has submitted that the mere fact that the appellant did not appeal against that ruling did not preclude him from including same as a ground of appeal in the final appeal. He placed reliance on order 3, rule 22 of the Court of Appeal Rules 2002 and the case of Isaac v. Cosmos (2000) 2 SCNQR 450 at 450.

In Ajidahuni v. Ajidahuni (2000) 8 WRN 17; (2000) 4 NWLR (Pt. 654) 605 and indeed in the case of Morakinyo v. Adesoyero supra at page 621 paras. E-F the Court of Appeal Ibadan Division had cause to construe section 25(2) of the Court of Appeal Act when Per Ayo Salami with Mukhtar and Oguntade JJCA, (as they then were) concurred that:

“By virtue of section 25(2) of the Court of Appeal Act, an aggrieved party has 14 days within which to appeal against an interlocutory decision. However, on effluxion of the 14 days stipulated, such party, is required to seek extension of time to seek leave, leave and extension of time within which to appeal. In the instant case, the appellants being aggrieved by the ruling of the trial court refusing them right to adduce evidence on an unpleaded fact failed to obtain leave for extension of time to appeal after the expiration of 14 days. The appeal on that ground is therefore inchoate and incompetent.” See Tijani v. Adewunmi (1990) 1 NWLR (Pt.125) 237.

The said section 25(2) (a) stipulates that: “(2) The periods for giving notice of appeal or notice of application for leave to appeal are:-

(a) In an appeal in a civil cause or matters fourteen days where the appeal is against an interlocutory decision and three months where the appeal is against a final decision.”

The above provisions notwithstanding order 3 Rule 22 with the marginal note “interlocutory judgment not to prejudice appeal,” expressly provides that:-

“22. No interlocutory judgment or order from which there has been no appeal shall operate so as to bar or prejudice the court from giving such decision upon the appeal as may seem just.”

The above provision has been given judicial construction by no less a court than the Supreme Court in Isaac v. Cosmos (2000) 2 SCNQR 450 at 475 and re-emphasized in Onwe Oke & Ors v. Nwaogbhinya (2001) 5 NSCQR 93 at 106; (2001) 3 NWLR (Pt. 700) 406 where Ejiuwunmi, JSC at pg. 418 delivering the lead Judgment of the apex court succinctly stated the position of law inter alia:-

“… where an appellant failed to appeal against an interlocutory order or ruling of a trial court within the time prescribed by section 25(2)(a) of the Court of Appeal Act, 1976, he must obtain the leave of court for his appeal to be competent. Where on the other hand, the complaint of the appellant against the ruling is concerned with the wrongful admission of evidence or wrongful rejection of evidence, such an appellant would not require the leave of court, as the ruling appealed against is not regarded as an interlocutory decision. The appellant may therefore include the ground of appeal against that ruling of the trial court when appealing against the final judgment of the trial court.”

It is therefore submitted in my humble view that the learned counsel for the appellant was on firm ground when he cited the above authorities to submit that section 25(2)(a) of the Court of Appeal Act 1976 does not apply to the circumstances of this case where the appellant complains of wrongful rejection of evidence by the lower court in the course of trial.

The ruling rejecting the document by which the respondent purportedly conceded the custody of the only child of the marriage to the appellant was therefore not an interlocutory ruling that would warrant leave of this court before the appellants can incorporate their complaint against same in their appeal against the final judgment of the lower court.

From the foregoing I am minded to overrule the preliminary objection with respect to particular (6) of ground (5) of the grounds of appeal, which from the authorities is competent and arguable. The aspect of the preliminary objection is accordingly dismissed moreso when particular (6) has been abandoned in the course of argument of ground 5.

Having said that I shall now proceed to consider issue No 1 of the main appeal.

Now from what can be gleaned from the pleadings of the parties and the submissions of counsel the respondent/cross-appellant has accused the petitioner of committing adultery with one Aramide Babatunde to the extent of the said Aramide giving birth to two children to the Petitioner. The respondent/cross petitioner claims damages of N 1 million naira against the petitioner and the alleged Aramide Babatunde.

Section 31 (1) of the Matrimonial causes Act provides that:”

31(1) A party to a marriage, whether husband or wife, may, in a petition for decree of dissolution of the marriage alleging that the other party to the marriage has committed adultery with a person or including that allegation, claim damages from person on the ground that that person has committed adultery with the other party to the marriage and, subject to this section, the court may award damages accordingly.”

By subsection 2 of the section:-

“(2) The court shall not award damages against a person where the adultery of the respondent with that person has been condoned, whether subsequently revived or not, or if a decree of dissolution of the marriage based on the fact of the adultery of the respondent with that person, or on the facts including that fact, is not made.

“(3) Damages shall not be awarded under this Act in respect of an act of adultery committed more than three years before the date of the petition.”

Section 32(1) specifically states that “where a petitioner for a decree of dissolution of marriage or in an answer to such petition, a party to the marriage is alleged to have committed adultery with a specified person, whether or not a decree of dissolution of marriage is sought on the basis of that allegation, that person shall, except as provided by rules of court, be made a party to the proceedings.”

In our instant case learned counsel for the appellant has conceded that the court joined the said Aramide Babatunde, the alleged adulteress. However, his misgiving is the non-service of the processes of the court on the said Aramide Babatunde.

To the learned counsel to the appellant, the non-joinder of the said adulteress rendered the proceedings void and accordingly robbed the trial court of the jurisdiction to entertain the claim of adultery and award of damages against the petitioner. Several statutory as well as judicial authorities have been cited to buttress his contention in this respect.

It would appear that the provision relating to service of the court processes on the adulteress or adulterer and joinder thereof is mandatory as the word ‘shall’ is used by the legislature. This is understandable particularly as it is a cardinal principle of our jurisprudence as encapsulated in the time honoured maxim ‘audi alteram partem (hear the other side) that before condemning the said Aramide Babatunde to pay damages for adultery she ought to be served with the processes so as to enable her come to court to defend herself on the allegation of adultery brought against her.

There is no doubt as learned counsel for the appellant citing F.G.N. v. Zebra Energy Ltd. Supra. Ononye v. Chukwuma (2005) 17 NWLR (Pt.953) 90 at 119 and Anyaso v. Anyaso Supra and sections of the Matrimonial Causes Act has submitted, where a statute provides a particular form of procedure for the doing of an act a party may not depart there from unless there is an exception to that procedure. Furthermore, failure to serve the alleged adulterer would tantamount to a fundamental vice that could vitiate the proceedings as far as the adultery claim and concomitant award of damages against her is concerned.

In the F.G.N. v. Zebra Energy Ltd. (2002) 18 NWLR (Pt.798) 162 at 200-201 paras. H-A Mohammed, JSC held in his lead judgment of the Supreme Court that:

“When a matter is clearly spelt out in a statute and the procedure for carrying out such duty is laid down a party has no choice but to comply fully with the provisions of the statute.”

However, I am in a quandary as to how Section 85 of the Matrimonial Causes Act comes into play in this case since the said Aramide did not deem it necessary to appear in court either as a defendant/respondent or witness.

Moreover, the case of Anyaso v. Anyaso (1998) 9 NWLR (Pt.564) 150 at 179-180 cited by appellant’s counsel rather supports the case of the respondent.

In that case the argument of the learned counsel for the appellant was that the allegation of adultery could not have been investigated because the trial court had struck out the names of the co-respondents on failure to serve them with the amended answer to the petition on which the respondent joined issues. Ayo Salami JCA, who delivered the lead judgment of the Court of Appeal, Enugu Division, described the argument of counsel for the appellant as novel, when he contended that where the other parties have been struck out, evidence otherwise admissible against the remaining respondent can no longer be admissible.

The erudite justice then appositely stated that the court was patently right and entitled to consider the evidence and if accepted act upon it to find the remaining respondents liable but not those who have been struck out.

However, he further held, that if the court held the absent parties liable, only the said absent parties can come to the court to ask for the court to set aside the judgment and the appellant could not do so by proxy to the said respondents. This same analogy is akin to the situation we have found ourselves where the alleged adulteress was joined but did not appear. It is salutary that Aramide Babatunde has not been condemned to be damnified for adultery in her absence. Accordingly the learned counsel for the appellant cannot hold forte for her.

If there was evidence, which the trial court believed to warrant his awarding damages against the petitioner/appellant, the court below was entitled to act on it and I so hold.

I therefore discountenance the submissions of the learned appellant’s counsel and agree with the submissions of the learned counsel for the respondent that Aramide Babatunde need not be called by the respondent as a witness because in the first place the said Aramide was an adversary and the petitioner would have been in a better position to call her as the mother of Albert (his son) which he admitted by Exhibit 2 and to come and disprove the alleged adultery against them.

Again if there were other pieces of evidence from which the court could act, the court could, find the petitioner liable.

Against this background we shall now consider the evidence led by the parties in order to determine whether the allegation of adultery was proven thus warranting the award of the sum of N20, 000.00 against the appellant.

Since the respondent was the one who alleged the commission of adultery against the appellant and Aramide Babatunde the onus was therefore on her to prove to the reasonable satisfaction of the court that the alleged persons actually committed adultery. In doing so the standard of proof is no longer as was approximated to that required in criminal cases as was decided in cases like Onun Eteng Ikpi v. Jenny Jonah Ikpi (1957) WRNLR 59; Sowande v. Sowande (1960) L.L.R. 58; Oloko v. Oloko & Anor: (1961) L.L.R. 100 and Akinyemi v. Akinyemi (1963) 1All NLR 340; (1963) 2 SCNLR 303.

The current position of the law is as was laid down in the House of Lords in Blyth v. Blyth (1966) All ER 524 where it was decided that the standard of proof is no more than as required in civil cases. See for instance section 82 of the Matrimonial Causes Act.

At page 88 of the record of proceedings the respondent testified to the appellant’s erratic behaviour towards her and that he was a man of unstable character who had no regard for his matrimonial home because he was said to possess insatiable appetite for women of easy virtue. This according to the respondent led to the appellant having children out of his matrimonial home and any attempt by the respondent to cheek the excesses of the appellant would be visited with flaring up of the said appellant. In the words of the respondent.,

“One of his girl friends is Aramide Babatunde. This woman has two children (boys) from him. The 1st son-(Albert Alabi) was born on the 3/10/99 at Olarewaju Hospital Ilorin. This was about 8 months after our wedding. The 2nd son (William Alabi) was born on 14/8/2001 at Omolola Hospital, Ilorin. When I got to know about Aramide’s relationship with the petitioner, I confronted him (petitioner) and he did not deny it.

However, I did not allow this to affect my relationship with him I only advised him as his wife to be more careful so that we can have a peaceful home.”

The respondent further disclosed how she saw some documents in the appellant’s bed room which shows that the petitioner had two sons with a white woman in the United States of America. Furthermore, the appellant was in the habit of bringing strange women to their matrimonial home and when confronted by the respondent, would flare up and tell the respondent that he built the house with his money. Appellant was also fond of staying in Hotels with women rather than his home and would come back at 2.00 am and in drunken stupor.

When cross-examined by the learned counsel for the appellant she reiterated that she never knew Aramide the alleged adulteress before their marriage with the appellant but only came to know the said adulteress when she (adulteress) gave birth to her first baby (Albert) on the 3rd October 1999. She denied ever going along with the said Aramide and appellant to Ibadan for shopping as contended by the appellant. It would be recalled that the marriage certificate tendered during the proceedings described the appellant as bachelor and respondent as spinster as at the 23rd January, 1999 when they were wedded at the U.M.C.A. Chapel Tanke, Ilorin to show that prior to their marriage the parties were presumed not to have had a subsisting marriage.

In proof of his petition and in defence to the allegation of adultery committed by him, the appellant had testified at page 79 of the records that he knew Aramide Babatunde as the mother of his son Albert Segun Alabi who was born on 2nd day of March, 1999.

He tendered a National Population Commission Birth Certificate of the said Albert Segun Alabi dated 10th March. 2000, which certificate was admitted and marked exhibit 2. He denied having neither any wife elsewhere nor any children elsewhere and stated further that before his wedding with respondent he had separated with Aramide but that he had taken both Aramide and the respondent to Ibadan for shopping. After his wedding with respondent he has no more relationship with the said Aramide.

On the allegation of converting his matrimonial home into a brothel he denied same, stating that it was not in his character to just take anybody into his house. He finally denied committing adultery and urged the court to dismiss the said allegation as a mere after thought.

Under cross-examination he admitted that exhibits 1 and 2 (the Birth certificates) did not disclose the places of birth of the children and that he went and collected them for his children having obtained the information with which the certificates were filled from the respondent because he (the appellant) was out of the country when Albert was born. He admitted that Albert’s mother did not accompany him for the collection of the certificate of birth of Albert Segun. When further questioned as to his relationship with the said Aramide he stated thus:-

“When I met the respondent Aramide was 4 months pregnant for me. Aramide was not ready to marry as at that time I took Aramide to Ibadan for security reasons.”

From the totality of the evidence elicited by the parties including the DW 1 who testified as to the character of the petitioner, the learned trial Judge who had the singular opportunity of watching the demeanor of the witnesses held inter alia on the vexed issue of adultery thus:-

“The respondent in her evidence on oath stated that one of the petitioners friends Aramide Baratunde (2nd respondent) in this case has 2 children for the petitioner ….. She also said that she knew, about Aramide Babatunde only five months after she got married to the petitioner who did not deny that he has a child called Albert outside his wedlock. What he said however is that the said Albert was born on 2/3/1999 about 2 months after his wedding with the 1st respondent.”

On exhibit 2 the Birth certificate of Albert the learned trial Judge continued.

“He tendered exhibit 2 Birth Certificate. Even though the document was admitted in evidence not much weight can be attached to it. I presume that the document was hurriedly procured for the purpose of this case.”

The learned trial Judge further held that the marriage contracted by the parties being under the Act when the appellant who had put another woman in the family way was not qualified for the marriage. His Lordship then asked

“So if having a child outside wedlock is not adultery, what then is it?”, and then concluded. “The petitioner is not a sincere or truth witness. There is no better evidence of adultery than having a child outside wedlock. I therefore hold that the allegation of adultery made against the petitioner by the 1st respondent in her cross petition has been proved.”

I cannot but agree more with the unassailable position taken by my Lord of the lower court considering the totality of the plethora of evidence of adultery and the catalogue of adulterous and promiscuous escapades in which the appellant got himself entangled.

If we go by the definition of adultery as supplied by the learned counsel for the appellant from the : “Words And Phrases Legally Defined” 2nd Edition page 46 by John B. Sanders Vol. 1., which is “consensual sexual intercourse between a married person and a person of opposite sex, not the other spouse, during the subsistence of the marriage …” then the opinion of the learned trial Judge that “there cannot be a better evidence of adultery than having a child outside wedlock,” cannot be faulted not withstanding what the learned counsel for the appellant terms “the barrage of personal opinion of the trial Judge’.

I am of the considered view that the learned trial Judge who had the singular opportunity of hearing and seeing the witnesses at the hearing of this case was in the best position to form an opinion as to whom to believe and whom not to believe. The authority of Oki v. Oki (2002) 13 NWLR (Pt.783) 89 at 104 with the greatest respect, does not apply because the exercise of the court’s discretion was not on wrong principles of Law, the award was not arbitrary neither was it perverse, but it was borne out of the plethora of evidence before him.

Again a resort to the cases of Zebra Energy Ltd. supra earlier cited, Madukolu v. Nkemdilim and Macfoy v. U.A.C on jurisdiction will not assist the case of the appellant where the respondent/cross appellant has done all that the law required her to do by joining the co-respondent Aramide Babatunde who did not deem it necessary to come to court to defend herself. As I had held earlier it does not lie in the mouth of the appellant’s counsel to hold brief for her (Aramide) more so as no order has been made against her. The appellant is a self-confessed adulterer and it is immaterial whether Aramide Babatunde appears or not.

The law has set down certain conditions from which adultery can be inferred these are:-

1. Evidence of disposition and opportunity for sexual intercourse with a person other than a spouse. See Erhahon v. Erhahon (1997) 6 NWLR (Pt.510) 667. In this case the birth of two sons during the subsistence of the marriage of the appellant and respondent shows antecedent conduct that the association of the appellant and Aramide was so intimate and their mutual passion so clear that adultery might reasonably be and infact can be inferred as a result of the opportunity of the occurrence. See also Lord Buckmaster in Ross v. Ross (1930)A.C. 1 at 7.
2. General cohabitation. It has been held in Evoroja v. Evoroja (1961) WNLR that where it is established that there is a state of general cohabitation between a man and woman adultery is presumed between them. In this case apart from the evidence of children outside wedlock the respondent has elicited evidence which the court believed that the appellant was fond of bringing women of easy virtue to the matrimonial home but when respondent protested the appellant flared up, beat up the respondent and drove her out of the matrimonial home with her only daughter.
3. Confession and Admission of Adultery.

In this case the appellant had admitted that the same Aramide was pregnant four months before he met the respondent. Even though he said that he had nothing to do with the same Aramide, he admitted that the said Aramide is the mother of his son (Albert) and inspite of purportedly cutting off relationship with her, he admitted taking her to Ibadan for security reasons while their marriage with the respondent was still pending.

The birth of Albert 8 months after the marriage is confirmatory proof of which the court below acted upon to find appellant guilty of adultery. See the English case of Robinson v. Lane (1859) 1 SW and Tr 362.

4. Entry of Register of Birth. In Arinye v. Arinye, it was held that entry of birth by the wife, which omits the name of the child’s father or simply gives a name other than the husband amounts to admission of adultery. In the case at hand the appellant who hurriedly went and prepared a birth certificate Exhibit 2 for Albert Alabi whose mother was not the respondent (his lawfully wedded wife) must be presumed to have admitted the commission of adultery.
5. Frequent Visits to The Hotels

In the English cases of (Williams v. Williams (963) 8 ADLEL 315; Astley v. Astley (1828) 1 HAG. E.C.C. 714 and England v. England (1952) 2 All E.R. 784 it was held that where a husband frequently visits hotels as has been disclosed in our instant case, there is a presumption of adultery. There is evidence that the appellant frequented hotels and came back drunk always at 2.00 am.

In this case not only has the respondent proved these essential ingredients of adultery but the appellant had told the court that he derived the information with which he procured the birth certificate of Albert whom the respondent told the court was born on the 3rd day of October 1999, eight months after their wedding.

The court shall take judicial notice of the fact that the gestation period of human beings is normally nine months which simply demonstrates that the appellant was amorously hobnobbing with Aramide Babatunde while still married to the respondent, without her knowledge.

There is no doubt that the learned appellant counsel could plead condonation under section 31 (2) and (3) of Matrimonial Causes Act which have been copiously reproduced, when the respondent stated at page 88 of the record lines 14-20

Thus:-

“I did not allow this to affect my relationship with him. I only advised him as his wife to be more careful so that we can have a peaceful home.”

Need we blame this woman for trying to save her marriage of barely eight months old? I am of the view that sometimes in trying to be legalistic we loose the essence of Christian marriage, which the parties in this case entered into.

The philosophy of Christian marriage is vividly captured in the first chapter of the book of Genesis when man first saw a woman created from his rib by Yahweh and he exclaimed: “This at last is bone from my bone and flesh from my flesh. This is to be called woman for she was taken from man, this is why the man leaves his father and mother and join himself to his wife and they become one body” (Read Genesis 2: 18-24).

By this biblical injunction marriage should be anchored on mutual love and affection, understanding, tolerance, forgiveness, trust and sacrifice, for once united in the bond of marriage the man and woman become one flesh. Ordinarily if there is mutual love none of the parties will want to hmm or hurt the other’s feelings. In “The Songs of Songs” Chapter 8: 6-7 two young couple celebrated their love in the following lines:-

“Set me like as a seal on your heat1, like a seal on your arm. For love is as strong as death, jealousy relentless as sheol. The flash of it is a flash of fire, a flash of Yahweh himself. Love no flood can quench, no torrents drown”

Perhaps this was the sort of love that the respondent had for the appellant for as St Paul had admonished Christians, husbands and wives must be subjected to one another. Wives are advised to be submissive to their husbands. Husbands on the other hand are expected in reciprocity to love their wives, as Christ loved the church and gave himself up to her that he might sanctify her. See Ephesians 5: 21 – 25. As Christians they must remember that God is love and those who live in love live in God and God in them. See 1 John 4: 7-21.

Perhaps the respondent was still smarting under the marriage oath, which she took before the congregation and God, that: “I Eunice take you Benjamin Folorunsho Alabi to be my husband. I promise to be good to you both in good times and in bad times, in sickness and in health. I will love and honor you all the days of my life.”

The appellant on the other hand was oblivious of this mutual promise but like the typical African, he must imbibe the concept of “spare tyre” by maintaining Aramide and a harem of women because he is the head of the family to whom his wife must submit. Thus in spite of the tolerance or condonation he persisted on his unbridled sexual escapades with women of easy virtue in his house and hotels.

Even though the book of Sirach admonishes that men should give no power to women to trample on their dignity (See Sirach chapter 9:2), verses 3, 4, 5, 6, 7 and 8 clearly warn us men as follows:-

“3. Be not intimate with a strange woman lest you fall into her snares

“4. With a singing girl be not familiar lest you will be caught in her wiles.

“6. Give not yourself to harlots, lest you surrender your inheritance.

“7. Gaze not about the lanes of the cities and wander not through it squares.

“8. Avert your eyes from a comely woman, gaze not upon the beauty of another’s wife – through woman’s beauty many perish.”

Even if I concede that the claim of the respondent on the discovery of the birth of Albert Alabi cannot be founded on adultery in that the suit was not commenced within three years, since Williams Alabi was born on the 14th August 2001 and the respondent brought her cross petition on the 28th June, 2003 the claim of the respondent was well founded because of the continuous nature of the appellant’s adulterous acts.

It is in evidence that there were other aspects of adultery committed by the appellant while they were living together until June 2002 when the appellant without just cause drove the respondent away with the only child of the marriage. If the suit for adultery was commenced on the 28th June, 2003, then the respondent definitely was on time.

In, Oliver v. Oliver (1966) 8 FLR 419 it was held that even if the adultery had commenced over three years before the petition, action for damages can be brought for it is immaterial that the first act occurred more than three years before the petition.

Accordingly, I am not persuaded by the ingenious submissions of the learned counsel for the appellant on this issue of adultery.

On the quantum of damages awarded, and the criteria for such awards it was the contention of the learned counsel for the appellant that in the absence of admission of commission of adultery by the appellant, the assessment of the value of the wife lost is a measure of the pecuniary assistance which the wife was making to the husband before the third party/adulterer broke up their marriage. I should think that since it is the respondent who is claiming for adultery as having lost her husband the corollary, should be the case.

However, no authority was cited for his above submission but in the case of Irinoye v. Irinoye supra. Lambo J. of blessed memory declared as far as the quantum of damages and the principles governing assessment thereof in adultery cases is concerned inter alia:

“It is well settled in Butterworth v. Butterworth and Englefield that damages on grounds of adultery are not compensatory for the loss which the petitioner has suffered, and consideration maybe given to such matters as damage done to the husband by the blow to his honour, the hurt to his family life and injury to his feelings”

I adopt the above quotation as mine as it represents the correct position of the law. See Taiwo Williams v. Iheoma Williams and Dr. Diete-Spiff, and Somotun v. Somotun reported in Nigerian Family Law. Principles, Cases, Statutes and Commentaries at page 167.

In our instant case the respondent has lost the love and affection of her supposed heartthrob, it is she whose honour has been given the death blow and whose family life has been devastatingly shattered and feelings traumatized because of her husband’s insatiable lust for women particularly of easy virtue. It is she who would now bear the brunt of the stigma of a failed marriage, which was celebrated only in 1999 but packed up in 2002-a marriage, which was supposed to last for life. I therefore hold the view that the award of N20, 000.00 to the respondent was on the extremely conservative side. Was I a court of first instance I would have awarded more out of the N 1 million claimed by the respondent?

Accordingly, I resolve issue number one in favour of the respondent. Grounds 2, 3, 4, 7, & 8 of the appellant’s grounds of appeal shall fail and are hereby dismissed.

Issue number 2, which relates to grounds 5 & 6 of the grounds B of appeal.

Here, the learned counsel for the appellant has submitted that there is no scintilla of credible evidence to support the award of custody of the child to the respondent and that the finding of the learned trial Judge that the evidence of the appellant was unreliable, was perverse and should be set aside. According to the learned counsel who relied on the case of Damulak v. Damulak (2004) 8 NWLR (Pt.874) 151 at 155, the learned trial Judge relied on extraneous matter rather than the absolute interest of the child in granting custody to the appellant. He further maintained that an order for custody contemplates good, adequate arrangements for sound education as well as those for physical and mental welfare of the child. Referring to the evidence of the respondent vis-a-vis the case of Otti v. Otti (1992) 7 NWLR (Pt.252)187 he submitted that the respondent failed to fulfill the legal requirements for the award of custody to her.

Further references were made to the cases of Odogwu v. Odogwu (1992) 2 NWLR (Pt.225) at 539; Williams v. Williams (1987) 2 NWLR (Pt.54) 61 at 67 and C & C Ltd. v. Okhai (2003) 12 SCNJ 33 at 53, (2003) 18 NWLR (Pt. 851) 79 to submit that there was unimpeachable evidence that the respondent who was used to coming home at night cannot adequately take care of the child and that this prompted a report by the appellant to the social welfare office where respondent conceded custody, to the appellant. He maintained that it was wrong for the trial Judge to award custody to the respondent upon the allegation of cruelty which was not proven by the respondent.

Citing again section 139 of the Evidence Act, he submitted that it is the sufferer of cruelty who should prove same but that rather it was the DW 1 who gave evidence of the respondent being sent out in the night along with the child in question and that the DW 1 had admitted that he based his opinion on the parties on hearsay which is not proof of the fact in issue. He urged the court to resolve issue number 2 in favour of the appellant since the answer to issue number 1 ought to be in the negative, the learned trial Judge having based the award of custody to the respondent on the ground that the appellant was not a witness of truth.

On the part of learned counsel for the respondent it was submitted that the award of custody of the only child of the marriage was proper for the following reasons:-

(a) There was evidence before the trial court that the said Elizabeth Alabi is a very young girl.

(b) That the petitioner did not have the love of the child at heart as he sent the mother and child out of the matrimonial home at night on a certain day.

(c) The petitioner has a house boy who was nineteen years old as at the time he (petitioner) testified

(d) The child – Elizabeth Alabi is a female who can be adequately catered for by her mother.

(e) There is evidence in the transcript record of proceedings that the respondent had been taking care of her child since she left her matrimonial home. The learned counsel for the respondent referred us to page 86 lines 5-6 & 23-26 of the records where the respondent testified, and submitted that there is evidence that the appellant brought to the matrimonial home women of easy virtue and that such a man who impregnated a woman and later solemnized marriage under the Act with another woman cannot be trusted to take care of a female child.

On the award of custody in matrimonial causes, learned counsel placed reliance on Odogwu v. Odogwu supra at page 547 and Williams v. Williams (1987) 1 NSCC 454, (1987) 2 NWLR (Pt. 54) 66. The learned counsel drew the court’s attention to the fact that custody is only granted to the respondent until the child attains the age of sixteen and that the appellant was not denied access to the child. He therefore urged us to resolve the two issues in favour of the respondent.

Award of custody of the children of a marriage that has broken down irretrievably as in this case is governed by section 71(1) of the Matrimonial Causes Act 1990, which enjoins the court in proceedings relating to custody, guardianship, welfare, advancement or education of children of the marriage, to take the interest of the children as paramount consideration and the court in this regard are given wide discretionary powers which they can exercise according to the peculiar circumstances of each case.

The need for the courts to regard the interest of children in custody proceedings as paramount has been emphasized in a long line of cases. See for instance the dictum of Oputa, J. (as he then was) in Okafor v. Okafor supra where he stated that the welfare of the infant is not only the paramount consideration but a condition precedent. See also Afonja v. Afonja (1971) 1 UILR 105 where it was held by the Western State Court of Appeal that the award of custody should not be granted as a punitive measure on a party guilty of matrimonial offences nor as a reward for the rival party.

In Okafor’s case, where counsel to one of the parties catalogued various acts of misconduct on the part of the respondent in asking for custody for his client, Oputa J. held that although the respondent was responsible for the breakup of the marriage the child was used to him and had been well catered for and accordingly custody was given to him.

Although misconduct on the part of the party to the suit is not the paramount consideration, where parties have made equally laudable arrangement for the welfare of the child and its upbringing, misconduct may tilt the balance in favour of the other party. Also where there are persistent acts of misconduct and moral depravity by one of the party this may be evidence of unsuitability of that party to be entrusted with the custody of the child see Lafun v. Lafun (1967) NMLR 401, where it was held that owing to the moral degeneracy of the respondent (mother) it would not be in the best interest of the child for the respondent to have access to the child who was in her formative years and could easily be negatively influenced.

Thus certain relevant criteria must be considered in the determination of the welfare of the child as in this case and they include:-

1. The degree of familiarity of the child with each of the parents (parties);
2. The amount of affection by the child for each of the parent and vice versa;
3. The respective incomes of the parties;
4. Education of the child;
5. The fact that one of the parties now lives with a third party as either man or woman; and
6. The fact that in the case of children of tender age’s custody should normally be awarded to the mother unless other considerations make it undesirable etc.

Going by the factors above enumerated we shall now see whether the court below exercised its discretion judicially and judiciously based on the evidence before it.

From my perusal of the record of proceedings particularly where the appellant testified and was subsequently cross-examined he had said regarding this issue of custody thus:-

1. The last time he saw his child was 21 months ago (on the 25/10/2004 when he testified).
2. That on the issue of custody he wanted the court to award custody of the only child of the marriage to him.

3 That he was self-employed then and so he was working.

4. He loved all his children equally and that it was his plan to give Oyeronke (the child) good education.
5. He admitted that he had not spent a kobo on the said child since she was purportedly snatched from him.
6. That he was aware that although Oyeronke was not yet in his custody she was still going to school and that he was not aware that the respondent was responsible for her school fees because according to him he was not allowed access to the child.
7. That he had a nineteen year old adopted son who was living with him.

On the part of the respondent she stated at page 88 of the records that the petitioner is a difficult man with unstable character and loose appetite, who brought women of easy virtue to the matrimonial home some of whom would sleep thereat and any attempt to Correct him would result in the petitioner flaring up and telling the respondent that the house was built with his money. The respondent also related how anytime the petitioner sent her out with the only child of the marriage, she would go to her parent’s house and when her father would bring her back in his car the petitioner would tell the said father to the respondent that he was tired of the marriage and that she could go away with the only child. There is also evidence from the respondent that the petitioner did not like staying at home but preferred staying in hotel with women.

Note also that at page 89 of the records she further stated:

“With regards to the child of the marriage the petitioner has no love for the child this made him to neglect his fatherly responsibility as he never bothered to take care of the child.

Since the petitioner sent me away from his house he has never been responsible for feeding, care and maintenance of the child and I. I have been the one paying the child’s school fees until now. As a good mother I have a good plan for the education of my child up to university level”

As regards accommodation, she stated that although the petitioner had a house he lived alone and that where she was living with the child then was also conducive to her upbringing. The respondent said that her mother was fifty years old and very agile and that she lives with the said mother. As for her occupation and source of income she disclosed that she trades on bottled water e.t.c. Besides she is a Holder of National Certificate of Education. On the allegation that she had no love for the only child of the marriage, she countered that it was not true and that she breastfed the child properly – in fact for one year.

Against this background the learned trial Judge held inter alia at page 132 of the record of proceedings thus:

“The child had been in the custody of the mother and there is no circumstance to compel a change of the present situation.”

Though there is no rule, as submitted by the learned petitioners counsel that when a child is female, her custody should be granted the mother, the supreme court however held in the case of Odogwu v. Odogwu (1992) 2 NWLR (Pt.225) 539

“………………………………………….

“………………………………………….

“………………………………………….

“………………………………………….

“These are matters to be tried. In the instant case, the petitioner who is the father has been described as an unruly, unstable and erratic man who does not have the love of his child at heart. I think they are right. He will not truly has (sic) the love of the child at heart notwithstanding the evidence or claim that the petitioner is a man of means who has built a house for himself in Ilorin, the position in this case therefore is that there is evidence in favour of the custody of the only child of the marriage being awarded to the first respondent who is the mother.

“In arriving at the decision, I am persuaded by the general principle that children who are female and in their growing or formative years like Elizabeth, is on the whole, other things being equal better off with the mother. Odogwu v. Odogwu (1992) 2 NWLR (Pt. 225) 539. “On the basis of foregoings, I hereby grant the 1st respondent/cross-petitioner’s prayer for an order granting custody of the only child of the marriage, Elizabeth Oyeronke Alabi to her, until the child attains the age of 16 years. The petitioner is however granted access to the child at reasonable time in the day”

Now learned counsel for the appellant had argued strenuously that there was no evidence on the part of the respondent to warrant the grant of custody and that the learned trial Judge considered extraneous matters in this direction. I am of the considered view that the findings of the trial Judge were based on the preponderance of evidence that the welfare of the only child of the marriage will be better protected if custody is given to the respondent.

There is the other submission that the respondent did not prove cruelty but that it was the DW 1 who said his evidence was hearsay that testified as to the cruelty exhibited by the appellant to the respondent and the only child of the marriage. With the greatest respect this can never be a true reflection of the proceedings of the lower court. The respondent had testified how the appellant would drive her and her child out of the house and when the respondent’s father brought her back, the appellant will tell the said DW1 that he was tired of the marriage and that the respondent could go with the child.

There is also evidence from petitioner himself that he has not set eyes on the child neither has he contributed a dime towards the child’s education. The erratic nature of the appellant and his wickedness to the child and mother were merely corroborated by the DW 1. See also exhibit 3 the F.I.R on the case of assault, and intimidation brought against the appellant and Exhibit 4 the bond entered into at the District Court Holden at Ilorin for him to keep the peace. It is instructive to note that the court below relied on Odogwu v. Odogwu supra in awarding custody to the respondent. Here in this court counsel on both sides had relied on the same Odogwu v. Odogwu case and William v. William Supra.

The court below also agreed with the submission of the appellant’s counsel that there is no settled rule that a child of tender years should remain in the custody of the mother See Otti V. Otti (1992) 7 NWLR (Pt.252) 187 at 210 where the Court of Appeal, Jos Division quoted with approval the dictum of Nnamani, J.S.C that:-

“In according the child’s interest paramount, there are a number of well-settled considerations: For instance there is no settled rule that a child of tender years should remain in custody of the mother. (See Re. B (An infant) (1962) 1ALL E.R. 872) although obviously the care and supervision that a mother who is not out of work can give to little children is an important factor. In W.V.N and C (1968) 3 All E.R. P. 408, the court of England held that it was right for the court to be guided by the general principle that a boy of eight years was on the whole, other things being equal, better off with his father.

In our instant case the learned trial Judge was well guided by the general principle that a female child like Elizabeth who is in her formative years should be in the custody of her mother. This point was stressed by the Supreme Court per Belgore J.S.C (as he then was) in Odogwu v. Odogwu (1992) 2 NWLR (Pt.225) 539 at 560 paragraphs D-E as follows:-

“If the parents are separated and the child is of tender age, it is presumed that the child will be happier with the mother and no order will be made against this presumption unless it is abundantly clear the contrary is the situation – e.g. immorality of the mother, infectious diseases on the mother, insanity and or cruelty to the child. These are matters to be tried Ojo v. Ojo (1969) 1 All NLR 434; Apara v. Apara (1968) 1 ALL NLR 241.”

In Williams v. Williams (1987) 2 NWLR (Pt.54) 61 Pp. 75-76 Obaseki, J.S.C. after a careful and exhaustive analysis of the meaning and implications of custody in matrimonial causes proceedings set down ten relevant considerations where he reemphasized relying on the authorities of Re B (an infant) and W v. W&C and Re. 0 (Infants) (1971) Ch.748 that it is settled rule that a child of tender years should remain in custody of the mother and that the wishes of an unimpeachable parents stands first. See RE Thian, Thian v. Taylor (1926) CH.676 approved in Mckee v. Mckee (1951) AC.352 at 366.

The Supreme Court also approved the dictum of Nnaemeka-Agu J.C.A (as he then was) while the case was at the court of appeal that custody of the child connotes not only the control of the child but carries with it the concomitant implication of the preservation and adequate care of the child’s personality, physically, mentally and morally. In other words this responsibility includes his/her needs in terms of food, shelter, clothing’s and the like. In that case the husband Rasheed Williams had made elaborate arrangement for the child whose custody was in question to join her two brothers abroad in a boarding school, but the Supreme Court was of the view that education outside a proper environment i.e. outside a child’s country of origin can only give that child a distorted view of her natural environment which was Nigeria.

Oputa J.S.C in his contribution aptly captured the mood of the court on the vexed issue of custody of female children in these words;

“From 1975 the girl Kafilat had been in the custody of the mother. That was good. I do not for one moment subscribe to the view that a boarding school in England is a fitting substitute for a mother’s care and attention. There are periods in a girl’s life when she is undergoing the slow advance to maturity when she needs her mother to discuss and answer her many questions about herself. .. ”

Taking all these factors together can we fault the decision of the trial court particularly as she has ordered that the appellant be granted access to the child? I think not.

From the antecedents of the appellant, even though he purports to be a man of means he cannot be in a better position to give this little girl the moral psychological and mental supervision, which she richly deserves. The respondent has said that she is a businesswoman and an N.C.E holder who is prepared to give her daughter education up to the university level. There is no evidence that the respondent is morally deprived or suffering from any contagious disease or insanity. Rather it is the appellant whose character has been impeached and I agree totally with the learned trial Judge that he has not shown adequate love and care for the child so as to warrant his being given absolute custody of that child who is growing up.

The above not withstanding, I am willing to adopt the decision of the Supreme Court in Williams v. Williams supra to modify the order of the learned trial Judge granting absolute custody of the child to the respondent.

In the circumstance of this case I shall order joint custody of the only child of the marriage Elizabeth Oyeronke Alabi to the appellant and respondent. The respondent shall however be charged with the exercise of care and control of the said child while the appellant takes care of the education of the child and shall be granted reasonable access to the child whenever he demands same.

Issue No.2 which relates to grounds 5 & 6 is also resolved against the appellant.

In essence I uphold the judgment of the lower court as this appeal lacks merit and is accordingly dismissed. I make no order as to costs.

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Other Citations: (2007)LCN/2269(CA)