AYEMOBA V AYEMOBA

AYEMOBA V AYEMOBA


IN THE COURT OF APPEAL
IN THE KADUNA JUDICIAL DIVISION
HOLDEN AT KADUNA

ON FRIDAY, 22ND JUNE, 2018


Suit No: CA/K/382/2016

CITATION:

Before Their Lordships:

UZO IFEYINWA NDUKWE-ANYANWU, JCA

MOHAMMED AMBI-USI DANJUMA, JCA

OBANDE FESTUS OGBUINYA, JCA


BETWEEN

DR. OJOR AYEMOBA
(APPELLANT)

AND

MRS OLUBUNMI AYEMOBA
(RESPONDENT)


PRONOUNCEMENT


A. ACTION
1. Reliefs – How a Court cannot grant a relief not claimed
Whether the Court can grant a relief not claimed

The law is trite, that a Court of law is drained of the jurisdiction to grant a relief that is not claimed by a party to a suit, see Ochonma v. Unosi (1965) NMLR 321; Agu v. Odofin (1992) 3 SCNJ 161; Agbi v. Ogbe (2006) 11 NWLR (Pt. 990) 65; Eagle Super Pack (Nig.) Ltd. v. ACB Plc. (2006) 19 NWLR (Pt. 1013) 20; Odunze v. Nwosu (2007) 13 NWLR (pt. 1050) 1; Veepee Ind. Ltd. v. Cocoa Ind. Ltd. (2008) 13 NWLR (Pt. 1105) 486; Osuji v. Ekeocha (2009) 16 NWLR (Pt. 1166) 81; Oduwole v. West (2010) 10 NWLR (Pt. 1203) 598; Stowe v. Benstowe (2012) 9 NWLR (Pt. 1306) 450; Odom v. PDP (2015) 6 NWLR (Pt. 1456) 547; Al-Hassan v. Ishaku (2016) 10 NWLR (pt. 1520) 230. The rationale behind this hallowed principle of law is not far-fetched. A Court of law is not a philanthropic organisation that doles out gifts that are not supplicated by recipients. The importance of prayer in a statement of claim, a version of petition in this specie of proceeding, which is a critical process in adjectival law, cannot be underscored. Every statement of claim/petition terminates with a prayer. In the absence of the prayer portion of it, a statement of claim/petition is deemed as bare assertions and liable to be struck out, see Stowe v. Benstowe (2012) 9 NWLR (Pt. 1306) 450. It is now an established cardinal rule of procedural law that relief/prayer must be pleaded and served for the defence to respond to it, see Oyeyemi v. Owoeye (2017) 12 NWLR (Pt. 1580) 364. This Court will bear/wear these ageless rules, like a badge, in the dispensation of the issue. ?I have, at the dawn of this judgment, displayed the Respondent’s reliefs as adumbrated at the twilight of her cross-petition. They are wrapped at pages 27 of the record. In order to conserve the scarce juridical time and avoid verbosity and duplication of efforts, it is pointless to import and propagate them here. However, the four prayers, requested by the Respondent, are obedient/submissive to clarity. I am unable to locate, even with the eagle eye of a Court, where the Respondent asked the lower Court for the relief of provision of accommodation. Indubitably, the Respondent, in her infinite wisdom, starved the Court of the prayer and, ipos facto and de jure, defiled the mode of supplication of relief in pleading. The consequence of it is far-reaching. The lower Court, with due reverence, was not clothed with the jurisdiction to grant the unclaimed relief of provision of accommodation. The raison d’etre for the want of jurisdiction is obvious. A Court of law, in the eyes of the law, is not crowned with the status of santa claus that dishes/dashes out ex-gratia awards that are not solicited by undeserving recipient. In a spirited bid to castrate the issue and infuse jurisdiction into the lower Court, the Respondent invented the defence that the order was a consequential one. In the sight of the law, consequential denotes “following as a result of inference, following or resulting indirectly”, see Eze v. Gov, Abia State (2014) 14 NWLR (Pt. 1426) 192 at 216, per Rhodes – Vivour, JSC. Then, “A consequential order is not one merely incidental to a decision but one necessarily flowing directly and naturally from, and inevitably consequent upon it,” see Akinbobola v. Plisson Fisko (1991) 1 NWLR (pt. 167) 270 at 288, per Nnaemeka – Agu, JSC. Thus, a consequential order gives meaning and effect to a judgment without granting a fresh relief. It must be a product or bye-product of the main suit and the evidence. Hence, the law gives the Court the inherent power to grant consequential orders in deserving cases, see Eagle Super Pack (Nig) Lad v. ACB Plc. (supra); Akeem v. University of Ibadan (2003) 10 NWLR (pt. 829) 584; Regd. Trustee, Apostolic Church v. Olowoleni (1990) 6 NWLR (pt. 158) 514; Amaechi v. INEC (2008) 5 NWLR (pt. 1080) 227; Unity Bank Plc. V. Denclag Ltd. (2012) i8 NWLR (pt. 1332) 293; Eze v. Gov. Abia State (supra); Osuji v. Ekeocha (supra)(2009) 7 SCNJ 248; Ishola v. Folorunso (2010) 13 NWLR (Pt. 1210) 169; OSIEC v. AC (2010) 19 NWLR (pt. 1226 ; Tindafai v. Jara (2016) 8 NWLR (pt. 1513) 19; Mamman v. Hajo (2016) 8 NWLR (pt. 1515) 411. There is no gainsaying the fact that the lower Court, decipherable from the judgment, granted custody of the child of the marriage to the Respondent. The Respondent, to my mind, has failed to establish before this Court that a party who earns custody of a child must be availed housing accommodation by the adversary. It flows, therefore, that provision of accommodation does not necessarily flow directly and naturally from award of custody of a child in matrimonial disputes/causes. The net effect is obvious. The order does not, in the least, bestow any meaning and effect to the grant of custody by the lower Court. In essence, it is a classic exemplification of a fresh relief which does not fall within the perimeter of consequential order. The bald fat that the order is not a consequence of the custody order punctures the defence of consequential order erected by the Respondent. The lower Court, at the bottom/foot of page 82, lines 18-20 of the record, ruled:

I order that the petitioner shall continue to provide housing for the Respondent and the child at the same standard with the house he has provided for them in line of the sale of the matrimonial home.

In the light of the above juridical survey, done in due consultation with law, the order flies in the face of the law. It will smell of judicial sacrilege to sustain such an order that is hostile to the law. In effect, I will ostracise it from the judgment and, by extension, the appeal. Accordingly, the order is vacated. In the end, I have no option than to resolve issue one in favour of the Appellant and against the Respondent. Per OGBUINYA, JCA. read in context

B. FAMILY LAW
2. Custody of a Child – The provision of the law on granting the custody of a child
Principles on which custody is to be decided

That brings me to the settlement of issue two. The issue, though a stubborn one, falls within a narrow compass. It chastises the lower Court’s grant of custody of the only child of the marriage to the Respondent. A dispassionate treatment of the issue turns on the provision of Section 71(1) of the Matrimonial Causes Act, Cap M7, Laws of the Federation of Nigeria, 2004. Since it is the cynosure of the issue, I will pluck it out from where it is ingrained in the statute book, ipissima verba, thus:

71 Powers of Court in custody, etc., proceedings

(I) In proceedings with respect 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 this matters as it thinks proper.
In the celebrated case of Williams v. Williams (1987) 2 NWLR (Pt. 54) 66 at 75 and 76, Obaseki, JSC, drawing inspiration from the Guardianship of Minor Act, 1971 and Guardian Act 1973, both English legislations, weaved certain principles that will guide the Court in the application of Section 71(1) of the Matrimonial Causes Act. They include:

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….

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….

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….

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…

8. There is settled rule that a child of tender years should remain in the custody of the mother… but obviously the care and supervision that a mother who is not out at work can give to little children is an important factor…

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…

10. The wishes of an unimpeachable parent stand first….

It must be placed on record, pronto, that these principles are open-ended. Others may germinate defending on the peculiar facts and circumstances of a case.

Indisputably, grant of custody in matrimonial matters invites and revolves around the discretion of the Court. Discretion signifies: the right or power of a Judex to act according to the dictates of his personal judgment and conscience uninfluenced by the judgment or conscience of other persons, see Suleiman v. C.O.P., Plateau State (2008) 8 NWLR (Pt. 1089) 298, Ajuwa v. S.P.D.C.N. Ltd. (2011) 18 NWLR (Pt. 1279) 797. An exercise of discretion, does not grant the Court the unbridled licence to act arbitrarily or capriciously. Contrariwise, it gives it the nod to act judicially and judiciously. To act judicially denotes “… discretion bounded by the rules and principles of law, and not arbitrary, capricious, or unrestrained. It is not the indulgence of a judicial whim, but the exercise of judicial judgment, based on facts and guided by law, or the equitable decision of what is just and proper under the circumstances”. See Babatunde v. P.A.S. & T.A. Ltd. (2007)13 NWLR (Pt. 1050) 113, at 149 and 150, Per Muhammad, JSC. On the other hand, “Acting judiciously…is said to import the consideration of the interest of both sides and weighing them in order to arrive at a just or fair decision”, see Babatunde v. P.A.S. & T.A. Ltd (supra), at 164, Per Ogbuagu, JSC.

Now, I have consulted the record, the spinal cord of the appeal, especially at the residence of the vica voce evidence of the feuding parties which colonise pages 62-75 of it. Interestingly, the testimonies are comprehension-friendly. I have married them with the positions of the law exhibited above. The wisdom behind the juxtaposition is not moot. It is to discover if the decision of the lower Court, on the vexed point, satisfied the requirements of the law. It can gleaned from the prescription of Section 71(1) of the Matrimonial Causes Act and the catalogued principles that the operating word is welfare which is coterminous with interest. Curiously, the Matrimonial Causes Act did not define it or the phrase “welfare of child.” In J. v. C (1970) A.C. 668/710, Lord MacDermott coined/couched the import/purport of “welfare of the child” thus:

I think they connote a process whereby, when all the relevant facts, relationships, claims and wishes of parents, risk, choices and other circumstances are taken into account and weighed, the course to be followed will be that which is most in the interests of the child’s welfare as that term has now to be understood. Unarguably, in granting custody, the interest/welfare must rank foremost on the list of items relevant for consideration. It has to supersede/hold dominion over the parochial/selfish interests of the parents.

It is descramble from the evidence on record, that the Appellant, on footing of the conjugal friction between the parties, became alienated from the only son child of the marriage, Joseph Odaloje Ayemoba, for a very long period. This factor seriously counts against him vis-a-vis custody of the child. On the contrary, he made adequate arrangement for funding his education; an angle the Respondent was highly deficient. Incontestably, both parties share equal-right to the custody of the child. The Appellant’s educational plans for him are inviting and enticing and quantifiable monetarily. Happiness of a child is paramount in welfare as it will engender his all round development: morally, mentally, physically, educationally and emotionally. In this wise, “money may contribute to it but definitely not the pre-requisite of interests and welfare envisaged under the Act,” see Odogwu v. Odogwu (1992) 2 NWLR (Pt. 225) 539 at 570 and 571, per Olatawura, JSC. It flows, that money may in an inhospitable environment will not breed a child’s happiness, but diminish his growth and well being. Besides, the parties are consensus ad idem, predicated on the evidence, that the child had continuously been under the care and protection of the Respondent. In Odogwu v. Odogwu (supra), at 560, Belgore, JSC (later CJN), incisively, intoned: If parents are separated and the child is of tender age, it is presumed 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, infections (sic) disease on the mother, insanity, and or her cruelty to the child. This magisterial pronouncement in the ex cathedra authority, with due respect, exposes the poverty of the Appellants’ scintillating argument on the knotty point. Contrary to the expectation, the Appellant was stingy in furnishing the Court with the required evidence that would perforate the presumption of happiness of the child with the Respondent. This constitutes a serious coup de grace in the Appellant’s stance. That is not all. It can be garnered from the evidence, that the Appellant left the matrimonial home and distanced/divorced himself from the Respondent and the child. There is an inference that be drawn here. The case-law has endorsed, in toto, the Court’s authority to derive inferences from evidence, seeAkpan v. Bob (2010) 17 NWLR (Pt. 1223) 421; Adebayo v. PDP (2013) 17 NWLR (Pt. 1382) 1. The irresistible inference from the evidence is that the paternal companionship and familiarity between the Appellant and the child must have been highly dwindled, if not abolished. On that score, to compel the child to make a new start with the Appellant will, in my humble view, confuse and retard/stunt his development. This will constitute a serious erosion of his welfare/interest and offensive to the welfare provision in Section 71(1) of the Matrimonial Causes Act. This view is solidified by the fact that the child has attained 13 years now remaining 5 years to the expiration of the custody order. This brief legal anatomy, done with the aid of the law, amply, demonstrates that the lower Court properly evaluated the evidence and, duly, took into account the relevant legal considerations and child welfare before granting the custody. Put differently, the lower Court acted judicially and judiciously and did not fracture the law on exercise of discretion. On this premise, all the castigations, which the Appellant rained on the lower Court’s finding on custody, pale into insignificance. ?My noble Lords, I must place on record, that in the wide domain of discretion, previous decisions are not of much relevance. The reason is not far-fetched. The facts and circumstances of two cases are not always on all fours. A Court of law is not, willy-nilly, bound by a precedent in an earlier decision as that will be akin to putting an end to exercise of discretion. It can only use such decisions as guidelines, see Abacha v. State (2002) 5 NWLR (Pt. 761) 638; Bamaiyi v. State (2001) 8 NWLR (Pt. 715) 270; Suleiman v. C.O.P., Plateau State (supra); Babatunde v. P.A.S. & T.A. Ltd. (supra); Oyegun v. Nzeribe (2010) All FWLR (Pt. 542) 1612; Regt. Trustees, P.C.N. v. Etim (2017) 13 NWLR (Pt. 1581) 1. An appellate is, usually, loath to interfer with an exercise of discretion save where it is: wrongly exercised; tainted with irregularity, irrelevant or extraneous matters or defilement of the law, or in the interest of justice, seeAjuwa v. S.P.D.C.N. Ltd (supra); T.S.A. Ind. Ltd. v. Kema Inv. Ltd (2006) 2 NWLR (Pt. 964) 300. The lower Court’s exercise of discretion was not guilty of any of these negative elements to warrant intervention by this Court. To this end, I dishonour the Appellant’s enticing invitation to crucify the lower Court’s order on custody on the underserved altar/shrine improper evaluation of evidence. In sum, I will not hesitate to resolve issue two against the Appellant and in favour of the Respondent. Per OGBUINYA, JCA. read in context

3. Custody of a Child – How decision of the Court that relates to custody of the child must be in the best interest of the child
Principles on which custody is to be decided

On the other hand the order for custody as made by the trial Court for the Respondent was reasonably and in the best interest of the welfare of the child of the marriage dissolved, judging from the facts in evidence and the inferences that can be reasonably deduced there from. The inferential and actual evidence of abandonment of the Respondent and child was clear proof that the child cannot have his welfare guaranteed better with the Appellant/father in this case. The well reasoned and articulated judgment cannot be made better by me. I concur as the embryo of the society (the family) should not be toyed with by an egocentric consecrations of blame-game between parents. The Courts are the custodians of sincere morals and must enforce same in furtherance of good faith and fairness between the parties but subject to their mutual agreement and as such the paramount interest of the child when it comes to the question of custody. Per DANJUMA, JCA. read in context

C. PRACTICE AND PROCEDURE
4. Issue of Jurisdiction – The fundamental nature of jurisdiction
Importance of resolving the issue of jurisdiction once it is raised

In total loyalty to the dictate of the law, I will attend to issue one first. The reason is plain. It evinces a jurisdictional question. The law mandates the Courts to accord prime attention to issue of jurisdiction first where it germinates from any proceedings, see Okwu v. Umeh (2016) 4 NWLR (Pt. 1501) 120; Brittania-U (Nig) Ltd. v. Seplat Pet. Dev. Co. Ltd. (2016) 4 NWLR (Pt. 1503) 541; Oni v. Cadbury Nig. Plc. (2016) 9 NWLR (Pt. 1516) 80; Diamond Bank Ltd. v, Ugochukwu (2016) 9 NWLR (Pt. 1517) 193; Ngere v. Okuruket ‘xiv’ (2017) 5 NWLR (Pt. 1559) 440. I will pay total loyalty to this legal commandment so as not to insult the law. Per OGBUINYA, JCA. read in context


LEAD JUDGMENT DELIVERED BY OGBUINYA, JCA


This appeal probes into the correctness of the decision of the High Court of Kaduna State, holden at Kaduna (hereinafter addressed as “the lower Court”), coram judice: Hannatu A. L. Balogun, J., in suit No.KDH/KD/1242/2011, delivered on 22nd October, 2013. Before the lower Court, the Appellant and the Respondent were the petitioner and the Respondent respectively.

The facts of the case, which gave birth to the appeal, are amendable to brevity and simplicity. The Appellant and the Respondent got married to each other, under the Marriage Act, on 15th November, 2004 at the Marriage Registry, Kaduna North Local Government, Kaduna State. They cohabited at No. 6A Ethiopia Crescent, GRA, Kaduna until 25th March, 2007 when it ceased. The marriage was blessed with a son child. The Appellant alleged that, during the short period of cohabitation, the Respondent became hostile, treacherous, unaccommodating, was leaving matrimonial home without his knowledge and made same unconducive. She left or deserted the matrimonial home on 25th March, 2007. He asserted that the marriage had broken down irretrievably. Sequel to these, the Appellant beseeched the lower Court, via a petition filed on 6th December, 2011, and tabled the following reliefs:
a) A decree of dissolution of the marriage between the Petitioner and the Respondent on the ground that the marriage has broken down irretrievably.

b) Custody of the only child of the marriage, JOSEPH ODALOJE AYEMOBA.

c) Access by the Respondent to the child as proposed above.

As expected, the Respondent joined issue with the Appellant and denied the allegations. She accused the Appellant of adultery and wife battery. In consequence, she cross-petitioned and solicited for these reliefs:
WHEREOF the Respondent seeks the following orders

I. That the marriage should NOT be dissolved.

II. An order granting custody of the only child to the Respondent.

III. Maintenance order for the child aforesaid to cater for his upkeep and education.

IV. An Order requesting the Petitioner to pay damage to the Respondent for desertion and lack of consortium.

Following the rival claims, the lower Court had a full-scale determination of the case. In proof of the case, the Appellant testified in person. In disproof of the case, the Respondent gave evidence. No other witness was fielded by the parties. At the closure of evidence, the parties, qua counsel, addressed the lower Court. In a considered judgment, delivered on 2nd October, 2013, found at pages 76-82 of the printed record, the lower Court granted the petition and cross-petition in parts.

The Appellant was dissatisfied with the decision. Hence, on 27th November, 2013, he lodged a 2-ground notice of appeal, seen at pages 83-85 of the record, and prayed this Court for:

(a) AN ORDER allowing the appeal and setting aside the orders of the learned trial judge complained against.

(b) AN ORDER granting custody of the child of the marriage, Joseph Odaloje Ayemoba, to the Appellant.

Thereafter, the parties filed and exchanged their briefs of argument in line with the rules regulating the hearing of civil appeals in this Court. The appeal was heard on 9th April, 2018.

During its hearing, learned counsel for the Appellant F. A. Fasunmi, Esq., adopted the Appellant’s brief of argument, filed on 18th November, 2014 and deemed filed on 29th February, 2016, as representing his submission for the appeal. He urged the Court to allow. Similarly, learned counsel for the Respondent, Mas’ud Alabelewe, Esq., adopted the Respondent’s brief of argument, filed on 5th January, 2016 and deemed filed on 29th February, 2016, as comprising his arguments against the appeal. He urged the Court to dismiss it.

In the Appellant’s brief of argument, he distilled two issues for determination to wit:

(i) Whether it was right and proper for the learned trial Judge to order that the Appellant shall continue to provide accommodation/housing for the Respondent and the child having regard to the claims as well as the evidence of the parties before the Court.

(ii) Whether from the facts and evidence before the Court, the learned trial judge was right in granting custody of the child of the marriage to the Respondent.

The Respondent, in her brief of argument, crafted two issues for determination viz:

WHETHER HAVING REGARDS TO THE EVIDENCE AND THE ENTIRE CIRCUMSTANCES, THE TRIAL JUDGE WAS NOT RIGHT IN GRANTING THE CUSTODY OF THE CHILD OF THE MARRIAGE TO THE

RESPONDENT.

WHETHER THE RESPONDENT WAS NOT ENTITLED TO AN ORDER OF MAINTENANCE FROM THE APPELLANT.

A close look at the two sets of issues shows that they are identical in substance. Indeed, the Respondent’s issues can be, conveniently, subsumed under the Appellant’s. For this reason of oneness, I will decide the appeal on the issues formulated by the Appellant: the undoubted owner of the appeal.

Arguments on the issues.

Issue one.

Learned counsel for the Appellant submitted that the lower Court was wrong in its order of provision of accommodation because it was never claimed by the Respondent or borne out of evidence nor agreement of the parties. He noted that the Appellant had paid two years rent as an alternative accommodation when he sold the matrimonial home as agreed by the parties. He posited that a party’s case must be based on the pleadings and evidence. He added that a Court would not grant a relief not claimed. He relied on Fagbenro v. Arobadi (2004) 1 J.N.S.C. (Pt. 2) 174; SPDC Ltd. v. Amade (2010) 13 NWLR (Pt. 1210) 82; Edohoeket v. Inyang (2010) 7 NWLR (Pt. 1192) 25.

He explained that the fact that the Respondent was granted custody of the child did not mean the Appellant must provide accommodation which the Respondent was presumed to have made having prayed for custody. He observed that the Respondent never proved that she would not provide accommodation.

On behalf of the Respondent, learned counsel argued, per coutra, that the Respondent asked for maintenance order. He postulated that the order of custody would have no effect without order of maintenance. He citedTabansi v. Tabansi (2009) 12 NWLR (Pt. 1155) 415. He described the order of maintenance as a consequential order that was righty granted. He relied on Awoniyi v. The Registered Trustees of the Rosicrucian Order (AMORC) (2000) 10 NWLR (Pt. 676) 522; Statoil (Nig.) Ltd. v. Inducon (Nig.) Ltd. (2014) 9 NWLR (Pt. 1411) 43.

Issue two.

Learned counsel for the Appellant contended that the facts and evidence did not justify the grant of custody of the child to the Respondent. He conceded that the lower Court had the discretion to grant it, but it must be exercised judicially and judiciously. He asserted that such order must take into account the interest of the child. He cited Section 71 of the Matrimonial Causes Act;Williams v. Williams (1987) All NLR 253. He narrated the Appellant’s arrangement for the child. He reasoned that the lower Court made the grant of custody as punishment to the Appellant for his strange behaviour contrary to the law. He claimed that the Appellant’s natural and rightful place was his father’s home. He referred to Oyelowo v. Oyelowo (1987) 2 NWLR (sic: no part) 239. He stated that the Lower Court did not consider the temptations of bringing the child up by the Respondent as a single girl. He conceded that the Respondent must have emotional attachment to the child, but insisted that it was not a ground for the grant of custody.

For the Respondent, learned counsel admitted that in granting custody, a Court must take the interest of the child into consideration. He relied on Section 71 (1) of the Matrimonial Causes Act; Oduche v. Oduche (2006) 5 NWLR (Pt. 972) 102 for the necessary factors. He maintained that the lower Court took those factors in granting custody. He described the Appellant’s strange behaviour as evidence of unsuitability to have custody. He cited Alabi v. Alabi (2007) 9 NWLR (Pt. 1039) 297. He took the view that the lower Court properly evaluated the evidence and the appellate Court should not interfere with it. He referred to Bassil v. Fajebe (2001) 4 4 (sic) (Pt. 11) 119; Ndulue v. Ojiakor (2013) 8 NWLR (Pt. 1356) 311.

Resolution of the issues.

In total loyalty to the dictate of the law, I will attend to issue one first. The reason is plain. It evinces a jurisdictional question. The law mandates the Courts to accord prime attention to issue of jurisdiction first where it germinates from any proceedings, see Okwu v. Umeh (2016) 4 NWLR (Pt. 1501) 120; Brittania-U (Nig) Ltd. v. Seplat Pet. Dev. Co. td. (2016) 4 NWLR (Pt. 1503) 541; Oni v. Cadbury Nig. Plc. (2016) 9 NWLR (Pt. 1516) 80; Diamond Bank Ltd. v, Ugochukwu (2016) 9 NWLR (Pt. 517) 193; Ngere v. Okuruket ‘xiv’ (2017) 5 NWLR (Pt. 1559) 440. I will pay total loyalty to this legal commandment so as not to insult the law.

The meat of the Appellant’s grouse in issue one is simple. It quarrels with the lower Court’s order on the provision of accommodation/housing for the Respondent and the child of the marriage by the Appellant. The Appellant’s chief grievance is that there was no prayer to warrant the order. In other words, it accuses the lower Court of granting a relief not claimed and without evidence.

The law is trite, that a Court of law is drained of the jurisdiction to grant a relief that is not claimed by a party to a suit, see Ochonma v. Unosi (1965) NMLR 321; Agu v. Odofin (1992) 3 SCNJ 161; Agbi v. Ogbe (2006) 11 NWLR (Pt. 990) 65; Eagle Super Pack (Nig. Ltd. v. ACB Plc. (2006) 19 NWLR (Pt. 1013) 20; Odunze v. Nwosu (2007) 13 NWLR (pt. 1050) 1; Veepee Ind. Ltd. v. Cocoa Ind. Ltd. (2008) 13 NWLR (Pt. 1105) 486; Osuji v. Ekeocha (2009) 16 NWLR (Pt. 1166) 81; Oduwole v. West (2010) 10 NWLR (Pt. 1203) 598; Stowe v. Benstowe (2012) 9 NWLR (Pt. 1306) 450; Odom v. PDP (2015) 6 NWLR (Pt. 1456) 547; Al-Hassan v. Ishaku (2016) 10 NWLR (pt. 1520) 230. The rationale behind this hallowed principle of law is not far-fetched. A Court of law is not a philanthropic organisation that doles out gifts that are not supplicated by recipients.

The importance of prayer in a statement of claim, a version of petition in this specie of proceeding, which is a critical process in adjectival law, cannot be underscored. Every statement of claim/petition terminates with a prayer. In the absence of the prayer portion of it, a statement of claim/petition is deemed as bare assertions and liable to be struck out, see Stowe v. Benstowe (2012) 9 NWLR (Pt. 1306) 450. It is now an established cardinal rule of procedural law that relief/prayer must be pleaded and served for the defence to respond to it, see Oyeyemi v. Owoeye (2017) 12 NWLR (Pt. 1580) 364. This Court will bear/wear these ageless rules, like a badge, in the dispensation of the issue.

I have, at the dawn of this judgment, displayed the Respondent’s reliefs as adumbrated at the twilight of her cross-petition. They are wrapped at pages 27 of the record. In order to conserve the scarce juridical time and avoid verbosity and duplication of efforts, it is pointless to import and propagate them here. However, the four prayers, requested by the Respondent, are obedient/submissive to clarity. I am unable to locate, even with the eagle eye of a Court, where the Respondent asked the lower Court for the relief of provision of accommodation. Indubitably, the Respondent, in her infinite wisdom, starved the Court of the prayer and, ipos facto and de jure, defiled the mode of supplication of relief in pleading. The consequence of it is far-reaching. The lower Court, with due reverence, was not clothed with the jurisdiction to grant the unclaimed relief of provision of accommodation. The raison d’etre for the want of jurisdiction is obvious. A Court of law, in the eyes of the law, is not crowned with the status of santa claus that dishes/dashes out ex-gratia awards that are not solicited by undeserving recipient.

In a spirited bid to castrate the issue and infuse jurisdiction into the lower Court, the Respondent invented the defence that the order was a consequential one. In the sight of the law, consequential denotes “following as a result of inference, following or resulting indirectly”, see Eze v. Gov, Abia State (2014) 14 NWLR (Pt. 1426) 192 at 216, per Rhodes – Vivour, JSC. Then, “A consequential order is not one merely incidental to a decision but one necessarily flowing directly and naturally from, and inevitably consequent upon it,” see Akinbobola v. Plisson Fisko (1991) 1 NWLR (pt. 167) 270 at 288, per Nnaemeka – Agu, JSC. Thus, a consequential order gives meaning and effect to a judgment without granting a fresh relief. It must be a product or bye-product of the main suit and the evidence. Hence, the law gives the Court the inherent power to grant consequential orders in deserving cases, see Eagle Super Pack (Nig) Lad v. ACB Plc. (supra); Akeem v. University of Ibadan (2003) 10 NWLR (pt. 829) 584; Regd. Trustee, Apostolic Church v. Olowoleni (1990) 6 NWLR (pt. 158) 514; Amaechi v. INEC (2008) 5 NWLR (pt. 1080) 227; Unity Bank Plc. V. Denclag Ltd. (2012) i8 NWLR (pt. 1332) 293; Eze v. Gov. Abia State (supra); Osuji v. Ekeocha (supra)(2009) 7 SCNJ 248; Ishola v. Folorunso (2010) 13 NWLR (Pt. 1210) 169; OSIEC v. AC (2010) 19 NWLR (pt. 1226); Tindafai v. Jara (2016) 8 NWLR (pt. 1513) 19; Mamman v. Hajo (2016) 8 NWLR (pt. 1515) 411.

There is no gainsaying the fact that the lower Court, decipherable from the judgment, granted custody of the child of the marriage to the Respondent. The Respondent, to my mind, has failed to establish before this Court that a party who earns custody of a child must be availed housing accommodation by the adversary. It flows, therefore, that provision of accommodation does not necessarily flow directly and naturally from award of custody of a child in matrimonial disputes/causes. The net effect is obvious. The order does not, in the least, bestow any meaning and effect to the grant of custody by the lower Court. In essence, it is a classic exemplification of a fresh relief which does not fall within the perimeter of consequential order. The bald fat that the order is not a consequence of the custody order punctures the defence of consequential order erected by the Respondent.

The lower Court, at the bottom/foot of page 82, lines 18-20 of the record, ruled:

I order that the petitioner shall continue to provide housing for the Respondent and the child at the same standard with the house he has provided for them in line of the sale of the matrimonial home.

In the light of the above juridical survey, done in due consultation with law, the order flies in the face of the law. It will smell of judicial sacrilege to sustain such an order that is hostile to the law. In effect, I will ostracise it from the judgment and, by extension, the appeal. Accordingly, the order is vacated. In the end, I have no option than to resolve issue one in favour of the Appellant and against the Respondent.

That brings me to the settlement of issue two. The issue, though a stubborn one, falls within a narrow compass. It chastises the lower Court’s grant of custody of the only child of the marriage to the Respondent. A dispassionate treatment of the issue turns on the provision of Section 71(1) of the Matrimonial Causes Act, Cap M7, Laws of the Federation of Nigeria, 2004. Since it is the cynosure of the issue, I will pluck it out from where it is ingrained in the statute book, ipissima verba, thus:

71 Powers of Court in custody, etc., proceedings

(I) In proceedings with respect 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 this matters as it thinks proper.

In the celebrated case of Williams v. Williams (1987) 2 NWLR (Pt. 54) 66 at 75 and 76, Obaseki, JSC, drawing inspiration from the Guardianship of Minor Act, 1971 and Guardian Act 1973, both English legislations, weaved certain principles that will guide the Court in the application of Section 71(1) of the Matrimonial Causes Act. They include:

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….

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….

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….

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…

8. There is settled rule that a child of tender years should remain in the custody of the mother… but obviously the care and supervision that a mother who is not out at work can give to little children is an important factor…

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…

10 . The wishes of an unimpeachable parent stand first….

It must be placed on record, pronto, that these principles are open-ended. Others may germinate defending on the peculiar facts and circumstances of a case.

Indisputably, grant of custody in matrimonial matters invites and revolves around the discretion of the Court. Discretion signifies: the right or power of a Judex to act according to the dictates of his personal judgment and conscience uninfluenced by the judgment or conscience of other persons, see Suleiman v. C.O.P., Plateau State (2008) 8 NWLR (Pt. 1089) 298, Ajuwa v. S.P.D.C.N. Ltd. (2011) 18 NWLR (Pt. 1279) 797. An exercise of discretion, does not grant the Court the unbridled licence to act arbitrarily or capriciously. Contrariwise, it gives it the nod to act judicially and judiciously. To act judicially denotes “… discretion bounded by the rules and principles of law, and not arbitrary, capricious, or unrestrained. It is not the indulgence of a judicial whim, but the exercise of judicial judgment, based on facts and guided by law, or the equitable decision of what is just and proper under the circumstances”. See Babatunde v. P.A.S. & T.A. Ltd. (2007)13 NWLR (Pt. 1050) 113, at 149 and 150, Per Muhammad, JSC. On the other hand, “Acting judiciously…is said to import the consideration of the interest of both sides and weighing them in order to arrive at a just or fair decision”, see Babatunde v. P.A.S. & T.A. Ltd (supra), at 164, Per Ogbuagu, JSC.

Now, I have consulted the record, the spinal cord of the appeal, especially at the residence of the vica voce evidence of the feuding parties which colonise pages 62-75 of it. Interestingly, the testimonies are comprehension-friendly. I have married them with the positions of the law exhibited above. The wisdom behind the juxtaposition is not moot. It is to discover if the decision of the lower Court, on the vexed point, satisfied the requirements of the law. It can gleaned from the prescription of Section 71(1) of the Matrimonial Causes Act and the catalogued principles that the operating word is welfare which is coterminous with interest. Curiously, the Matrimonial Causes Act did not define it or the phrase “welfare of child.” In J. v. C (1970) A.C. 668/710, Lord MacDermott coined/couched the import/purport of “welfare of the child” thus:

I think they connote a process whereby, when all the relevant facts, relationships, claims and wishes of parents, risk, choices and other circumstances are taken into account and weighed, the course to be followed will be that which is most in the interests of the child’s welfare as that term has now to be understood.

Unarguably, in granting custody, the interest/welfare must rank foremost on the list of items relevant for consideration. It has to supersede/hold dominion over the parochial/selfish interests of the parents.

It is descramble from the evidence on record, that the Appellant, on footing of the conjugal friction between the parties, became alienated from the only son child of the marriage, Joseph Odaloje Ayemoba, for a very long period. This factor seriously counts against him vis-a-vis custody of the child. On the contrary, he made adequate arrangement for funding his education; an angle the Respondent was highly deficient. Incontestably, both parties share equal-right to the custody of the child. The Appellant’s educational plans for him are inviting and enticing and quantifiable monetarily. Happiness of a child is paramount in welfare as it will engender his all round development: morally, mentally, physically, educationally and emotionally. In this wise, “money may contribute to it but definitely not the pre-requisite of interests and welfare envisaged under the Act,” see Odogwu v. Odogwu (1992) 2 NWLR (Pt. 225) 539 at 570 and 571, per Olatawura, JSC. It flows, that money may in an inhospitable environment will not breed a child’s happiness, but diminish his growth and well being.

Besides, the parties are consensus ad idem, predicated on the evidence, that the child had continuously been under the care and protection of the Respondent. In Odogwu v. Odogwu (Supra), at 560, Belgore, JSC (later CJN), incisively, intoned:

If parents are separated and the child is of tender age, it is presumed 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, infections (sic) disease on the mother, insanity, and or her cruelty to the child.

This magisterial pronouncement in the ex cathedra authority, with due respect, exposes the poverty of the Appellants’ scintillating argument on the knotty point. Contrary to the expectation, the Appellant was stingy in furnishing the Court with the required evidence that would perforate the presumption of happiness of the child with the Respondent. This constitutes a serious coup de grace in the Appellant’s stance.

That is not all. It can be garnered from the evidence, that the Appellant left the matrimonial home and distanced/divorced himself from the Respondent and the child. There is an inference that be drawn here. The case-law has endorsed, in toto, the Court’s authority to derive inferences from evidence, see Akpan v. Bob (2010) 17 NWLR (Pt. 1223) 421; Adebayo v. PDP (2013) 17 NWLR (Pt. 1382) 1. The irresistible inference from the evidence is that the paternal companionship and familiarity between the Appellant and the child must have been highly dwindled, if not abolished. On that score, to compel the child to make a new start with the Appellant will, in my humble view, confuse and retard/stunt his development. This will constitute a serious erosion of his welfare/interest and offensive to the welfare provision in Section 71(1) of the Matrimonial Causes Act. This view is solidified by the fact that the child has attained 13 years now remaining 5 years to the expiration of the custody order.

This brief legal anatomy, done with the aid of the law, amply, demonstrates that the lower Court properly evaluated the evidence and, duly, took into account the relevant legal considerations and child welfare before granting the custody. Put differently, the lower Court acted judicially and judiciously and did not fracture the law on exercise of discretion. On this premise, all the castigations, which the Appellant rained on the lower Court’s finding on custody, pale into insignificance.

My noble Lords, I must place on record, that in the wide domain of discretion, previous decisions are not of much relevance. The reason is not far-fetched. The facts and circumstances of two cases are not always on all fours. A Court of law is not, willy-nilly, bound by a precedent in an earlier decision as that will be akin to putting an end to exercise of discretion. It can only use such decisions as guidelines, see Abacha v. State (2002) 5 NWLR (Pt. 761) 638; Bamaiyi v. State (2001) 8 NWLR (Pt. 715) 270; Suleiman v. C.O.P., Plateau State (Supra); Babatunde v. P.A.S. & T.A. Ltd. (Supra); Oyegun v. Nzeribe (2010) All FWLR (Pt. 542) 1612; Regt. Trustees, P.C.N. v. Etim (2017) 13 NWLR (Pt. 1581) 1.

An appellate is, usually, loath to interfer with an exercise of discretion save where it is: wrongly exercised; tainted with irregularity, irrelevant or extraneous matters or defilement of the law, or in the interest of justice, seeAjuwa v. S.P.D.C.N. Ltd (supra); T.S.A. Ind. Ltd. v. Kema Inv. Ltd (2006) 2 NWLR (Pt. 964) 300. The lower Court’s exercise of discretion was not guilty of any of these negative elements to warrant intervention by this Court. To this end, I dishonour the Appellant’s enticing invitation to crucify the lower Court’s order on custody on the underserved altar/shrine improper evaluation of evidence. In sum, I will not hesitate to resolve issue two against the Appellant and in favour of the Respondent.

On the whole, it will be recalled that issues one and two were resolved for and againt the Appellant respectively. It is vice versa for the Respondent. On this note, the destiny of the appeal is plain. It is partly meritorious and succeeds partially. Consequently, I allow the appeal in part. For the avoidance of doubt, the portion of the decision of the lower Court granting custody of the child of the marriage to the Respondent is upheld and affirmed. The other part on provision of housing accommodation by the Appellant to the Respondent and the child is set aside. The parties shall bear the respective costs they expended on the prosecution and defence of the partially successful appeal.

NDUKWE-ANYANWU, JCA

I had the privilege of reading in draft form, the judgment just delivered by my learned brother, Obande Festus Ogbuinya, JCA. I am in agreement with his reasoning and final conclusions.

In a custody case of a child, the child’s welfare is paramount. The father/Appellant had distanced himself from the Respondent and their child. It would serve no useful purpose destabilising the child now having lived with his mum/ Respondent all this while.

This appeal succeeds in part. I abide by all the consequential orders contained in the lead judgment.

DANJUMA JCA

Having read in advance the lead judgment just rendered by my learned brother, Obande Festus Ogbuinya, JCA, I agree that the appeal deserves to succeed in part.

The relief granting accommodation from the Appellant/Petitioner to the Respondent herein was a grant of relief not asked for.

The Court cannot grant unsolicited claims nor make any order that was not necessarily incidental and reasonably consequential in that it flows naturally and reasonably and not unexpectedly from the principal relief granted; on the other hand the order for custody as made by the trial Court for the Respondent was reasonably and in the best interest of the welfare of the child of the marriage dissolved, judging from the facts in evidence and the inferences that can be reasonably deduced there from.

The inferential and actual evidence of abandonment of the Respondent and child was clear proof that the child cannot have his welfare guaranteed better with the Appellant/father in this case.

The well reasoned and articulated judgment cannot be made better by me. I concur as the embryo of the society (the family) should not be toyed with by an egocentric consecrations of blame-game between parents. The Courts are the custodians of sincere morals and must enforce same in furtherance of good faith and fairness between the parties but subject to their mutual agreement and as such the paramount interest of the child when it comes to the question of custody.

Appeal allowed in part. I endorse the order relating to costs.

Appearances:

F. A. Fasunmi, Esq. For Appellant(s)

Mas’ud Alabelewe, Esq. with him, Aminu Hassan, Esq., T. Mustapha, Esq. and Usman Idris, Esq. For Respondent(s)