➥ CASE SUMMARY OF:
Reuben Chucks Mgbodi v Jemima Ogor Ugiagbe (CA/B/131/2021, June 29 2022)
by Branham Chima Esq.
➥ SUBJECT MATTER(S)
Custody of child of marriage after divorce;
Superiority of affidavits;
➥ CASE FACT/HISTORY
The brief fact of the case is that the Appellant and the Respondent on 1st October, 1996 got married under the Ugbodu Native Law and Custom in Aniocha North Local Government Area of Delta State, and the marriage was blessed with two children – Michael Aghaebie Mgbodi (male) 23 years and Golden Uwariekaose Mgbodi (male) 17 years. The said marriage was dissolved in 2007 by the Owa-Oyibu Customary Court, Delta State.
The Appellant sometime after the dissolution of the marriage purportedly deposed to two affidavits giving custody of the two children of the marriage to the Respondent. The content of the said affidavit was allegedly breached by the Appellant. The Respondent therefore instituted this action at the trial Court for sole custody of master Golden Uwariekaose Mgbodi. She also sought for the payments of maintenance, upkeeps and school fees of the children of the marriage from the Appellant. Upon conclusion of the proceedings, the trial Court delivered its judgment granting joint custody of Golden to the Appellant and the Respondent on 19th June, 2020.
Dissatisfied with the judgment of the trial Court, the Appellant appealed to this Court.
➥ ISSUE(S)
I. Whether or not the learned trial judge was right in ordering joint custody of Master Golden Uwariekaose Mgbodi by the Appellant and Respondent where the parties, in their respective pleadings and claims, have never pleaded and claimed joint custody thereby granting reliefs/claims not sought by the parties?
➥ RESOLUTION(S) OF ISSUES
[APPEAL DISMISSED]
↪️ ISSUE 1: IN RESPONDENT’S FAVOUR.
[ALLOWING THE CHILD ACCESS TO BOTH PARENTS IS IN THE BEST INTEREST OF THE CHILD
‘Now, from the record of this appeal, the child in question as at the time the Petitioner filed the Petition in 2017 was 12 years. Then from 2016 to 2020 when this appeal was filed is about 4 years. The said child by the reason aforesaid is not in the least a child requiring special attention of the Respondent, hence, the reason why the trial Court’s grant of joint custody of the child is comprehensible and reasonable. To allow a child access to both parents in a custody matter is in the best interest of the child of a dissolved marriage except where the negative effects of such a grant outweighs the impact of the grant. Herein, it is of most importance that the child in the instant appeal is equally granted access to the Respondent’s home to bond with his brother who happens to be under the custody of the Respondent. With the facts and circumstances of this case, I hold that the overriding interest of the child is to bond with both the Appellant and the Respondent. An established principle of family law is that custody of a child of a broken marriage is based on grounds other than the guilt, the blameworthiness or innocence of the parties concerned. I reiterate that, it is not awarded for good conduct simplicita, neither is it denied as a form of punishment for the guilty party’s matrimonial offence. As I remarked earlier, the paramount consideration is the welfare of the child or children of the marriage in the surrounding circumstances of each particular case as what is best must necessarily relate to the welfare, progress, advancement as well as the education of the children of the marriage.’
‘Definitely, it will not be in the best interest of a child to grow to know his father or mother as a stranger. Therefore, it is in the best interest of the child in this case to be in the custody of both parents who both happen to have good plans for him. While the best practices require that a trial Court interviews the children of a dissolved marriage to ascertain in whose custody they want to be; failure to observe that practice will not void the decision of a Court on the custody of the children, unless it can be shown that the custody of the children as granted in the particular circumstance drowns the interest of the children. This is more importantly, where as in this case, the children are grown and no longer permanently live at home but merely visit either parent at their convenience.’
‘ As the paramountcy of the best interest of a child in a custody matter cannot be over-emphasised, I hold that the trial Court’s exercise of its discretionary power in granting joint custody as opposed to the parties’ prayers for single parenting is good in law; and in the circumstance, is in the overriding interest of the good of the child of the dissolved marriage in issue. In all, I do not agree with the learned counsel for the Appellant that the Court’s grant of Master Golden’s custody to both parties is a right of address.’
THE LOWER COURT GRANTED THE PARTIES HALF OF THEIR RELIEFS SOUGHT AND THST IS ALL RIGHT
‘The power of the Court is strictly constricted by the reliefs sought. There is no power in any Court to grant a relief that was not claimed except such relief is within orders that can be properly construed as consequential order or lesser relief than that sought by a party. It is settled that a Court can only grant the relief sought by a party, and any orders made outside such prayers must be set aside by an appellate Court. See EKPENYONG & ORS V. IYANG EFFIONG NYONG (1975) 2 SC 71, 80 where the Supreme Court stated as follows –
“It should always be borne in mind that a Court of law is not a charitable institution; its duty, in civil cases, is to render unto everyone according to his proven claims.” See also OKUBULE V. OYAGBOLA (1990) 4 NWLR (PT 147) 723, BOLA IGE V. OLUNLOYO (1984) 1 SC 254 RANSOME KUTI V. A.G FEDERATION (1985) 2 NWLR (PT.6) 211, OBAJINMI V. A.G WESTERN NIGERIA (1968) NMLR 98. The trial Court not being a father Christmas is seriously handicapped when it comes to granting a relief not sought. See IYEN V. FRN (2009) LPELR – 8208 (CA). While the parties sought for exclusive custody of Golden respectively, the Court granted them joint custody of their son. As the Court cannot grant the relief not sought because it cannot grant what has no reference to the claim of a party or what is beyond the claim of a party but, a Court has the power to grant a party part of the relief claimed. The parties sought for exclusive custody of their son Golden respectively but the Court granted each of them part of what was prayed. The Court granted each of them partial custody of their son. The Court in the circumstance of the facts before it refused to grant any of the parties’ full relief. The law permits the Court to grant the reliefs of a party to the extent of what is proved based on the pleaded facts. In my humble view, irrespective of the fact that the parties sought for exclusive custody of their son respectively, the trial Court based on the evidence before it was right in law to have awarded the Appellant and the Respondent, joint custody. I hold that the trial Court did not award to the Respondent what she did not claim. The trial Court awarded the Respondent part of the relief she claimed.’]
.
.
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✓ DECISION:
‘Notwithstanding my position on the legal weight of affidavits sworn to at different Courts, from all I had earlier said; the sole issue is overwhelmingly resolved against the Appellant. Upon the resolution of the sole issue against the Appellant, this appeal is grossly lacking in merit and the same is dismissed. The judgment of the trial Court in SUIT NO: B/654F/2017 delivered by M. N. Asemota, J. on 19th June, 2020, granting joint custody of master Golden Uwariekaose Mgbodi to the Appellant and the Respondent is upheld. Parties to bear their own cost.’
➥ FURTHER DICTA:
⦿ PLEADINGS BIND BOTH COURT AND THE PARTIES
It is elementary, yet a fundamental principle of pleadings that both the Court and parties to a case are bound by the pleadings filed in the suit … They cannot go outside the pleadings. No party is allowed to make a case different from what it set out from inception otherwise, it will be an act in futility. The obvious reason behind this hallowed principle of law is that a case retains its original nature from commencement to determination and a Court is not a philanthropist organization that doles out gifts that are not supplicated by recipients. — U. Onyemenam JCA.
⦿ FACTORS TO CONSIDER WHEN CONSIDERING PRIMARY INTEREST OF CHILD
The primary consideration would always be what is in the best interest of the child, notwithstanding any form of agreement purportedly reached by the parties prior to the proceedings in a custody matter. In deciding what order would be in the best interest of the children of the marriage, some of the factors to be borne in mind include inter alia; (1) retention of existing position; (2) personality and character of the parties; (3) sex and age of the children; (4) education; (5) accommodation and material advantages; (6) stability of home life; (7) the parties conduct, etc.
Usually, the retention of existing position appears to be the premier consideration. The Court should constantly bear in mind that it is mostly necessary to keep siblings together and not to split the family up more than necessary. On the factor of accommodation and material advantages, the fact that one party is in a position to give the child a better start in life than another does not give him/her a prior claim. The happiness of a child not his material prospects would be the Court’s main concern. Nevertheless, a person’s financial position cannot be ignored entirely. The amount of time and energy that a parent can devote to the child’s care and upbringing is of utmost importance. This may mean that a mother who can spend the whole of her time with her child will necessarily have an advantage over a father who will be out to work all day no matter the type of alternative arrangements he can make for the child especially if the child is still a minor. Furthermore, the fact that the child has lived for some time with one parent without complain may in itself be a good reason for not moving him. The stability of the child’s home is important. The Court also tries to avoid imposing yet another move on a child who had already been moved about a great deal. — U. Onyemenam JCA.
⦿ AN AFFIDAVIT COMPETENCE DEPENDS ON THE PERSON WHO ADMINISTERED IT AND NOT THE COURT
Before I conclude, I will like to address the issue of whether an affidavit of a Customary Court can override an affidavit of a Federal High Court. According to the Black’s Law Dictionary, 8th edition: “An affidavit is a voluntary declaration of facts written down and sworn to by the declarant before an officer authorized to administer oaths, such as a notary public.” Then, Section 109 of the Evidence Act provides:
“Any affidavit sworn before any judge, officer or other person duly authorised to take affidavits in Nigeria may be used in the Court in all cases where affidavits are admissible.”
Therefore, the competence or validity of an affidavit is not dependent on which Court the affidavit was sworn to but is dependent on the competence of the person who administered the oath. Section 10 (1) of the Oaths Act, 2004 provides: “It shall be lawful for the Chief Justice of Nigeria, a Justice of the Supreme Court, the President and Justices of the Court of Appeal and any judge of the Federal High Court, a notary public, and any commissioner for oaths, to administer any lawful oath or to take any lawful affirmation or affidavit which may be required to be taken or made for the purpose of complying with the requirements of any law for the time being in force throughout Nigeria or elsewhere, except where such procedure is expressly or by necessary implication manifestly excluded by the terms of such law as aforesaid and the presumption shall be against any such exclusion.” By implication, any of the persons authorized by the above section can administer an oath. In other words, what makes a piece of paper an affidavit competent to support the assertion of both an Appellant and a Respondent in a matter, is the attestation or swearing before the commissioner for oaths, I refer to Section 109 of the Evidence Act. — U. Onyemenam JCA.
⦿ AN AFFIDAVIT SWORN BEFORE THE FEDERAL HIGH COURT DOES NOT CARRY MORE WEIGHT THAN AN AFFIDAVIT SWORN BEFORE A CUSTOMARY COURT
A community reading of the foregoing reveals that no affidavit is inferior to the other. What is paramount is for the Court to be satisfied that the document was sworn to before a person duly authorized. From the record of proceedings before this Court, particularly at pages 137 and 253 of the record, the two affidavits in issue were both sworn before a commissioner for Oaths. As a corollary, both affidavits complied with the provisions of the Evidence Act and Oaths Act, thus, are both admissible in evidence. By virtue of Section 111 of the Evidence Act, the Commissioner for oaths’ signature thereon is prima facie evidence that the affidavits were duly sworn before the person authorized to administer oaths. The weight to be attached to any particular affidavit depends on its competence and validity and not on the Court the affidavit was sworn to. Accordingly, I disagree with the learned counsel for the Respondent that an affidavit sworn to at a Federal High Court carries more legal weight than an affidavit sworn to at a Customary Court. Once an affidavit is competent and valid, it has equal effect and weight in law. — U. Onyemenam JCA.
➥ LEAD JUDGEMENT DELIVERED BY:
Uchechukwu Onyemenam, J.C.A.
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
Winifred Izuagie Esq.
⦿ FOR THE RESPONDENT(S)
Douglas Ogbankwa Esq.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
⦿ WITH RESPECT TO CUSTODY, INTEREST OF CHILDREN ARE THE PRIMARY CONSIDERATION FOR A COURT
SECTION 71(1) OF THE MATRIMONIAL CAUSES ACT, 1970 71(1) provides thus: “In the proceedings with respect to the custody, guardianship, welfare advancement or education of the children of marriage, the Court shall regard the interest of those children as the paramount consideration, and subject thereto, the Court may make such order in respect of those matters as it thinks proper.” Similarly, this Court has in the case of OBAHAYA V, OBAHAYA (2022) LPELR-57141 (PP, 19-20, PARAS. D-C) (CA) Per ONYEMENAM, JCA stated thus: “The principle of law is settled and which is that; in proceedings with respect to the custody, guardianship, welfare, advancement or education of the 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 these matters as it thinks proper. See SECTION 71(1) OF THE MATRIMONIAL CAUSES ACT. Thus, in awarding custody of a child, the Court will consider the care of the child’s person, morally, physically, and mentally, Hence, the welfare and the interest of the child must be accorded paramountcy where an order of custody of the child is to be made. In fact, the welfare of children of a marriage is not only of paramount consideration but a condition precedent for the award of custody. Custody is never awarded as a reward for good conduct nor is it ever denied as punishment for the guilty party’s matrimonial offences.” Therefore, it follows that custody imposes a responsibility that should not be taken lightly.
