OKAFOR v. OKAFOR

CITATION: (2016) LPELR-40264(CA)

In the Court of AppealIn the Kaduna Judicial Division

Holden at Kaduna

ON FRIDAY, 4TH MARCH, 2016Suit No: CA/K/248/2015

Before Their Lordships:

UWANI MUSA ABBA AJI Justice, Court of AppealISAIAH OLUFEMI AKEJU Justice, Court of AppealIBRAHIM SHATA BDLIYA Justice, Court of Appeal

BetweenMRS. CHARITY OKAFOR - Appellant(s)

AndMR. PAUL OKAFOR - Respondent(s)

RATIO DECIDENDI1 APPEAL - FORMULATION OF ISSUE(S) FOR DETERMINATION: Whether the

Court can reframe or reformulate issues for determination"The law is trite, in the hearing of an appeal an Appellate Court can adopt, reframe orformulate issues which it thinks appropriate for the determination of the appeal,provided, the issue, whether adopted, reframed or formulated, is or are predicatedon the grounds of the notice of appeal, filed by the appellant. See Latunde v. Lajinfi(1989) 3 NWLR (Pt.108)."Per BDLIYA, J.C.A. (P. 3, Paras. C-E) - read in context

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2 MATRIMONIAL CAUSES - CUSTODY OF A CHILD: The position of the law asregards the right to the custody of a child under Customary law"I think, it is apposite, at this juncture to resort to the position of the law on the rightto custody of children in situation where a marriage has been broken down, and thehusband and wife (father and mother) are no longer living together. In Okwueze v.Okwueze (1989) 3 NWLR (Pt. 109) P. 321 @ 334, the Supreme Court, when dealingwith the right to custody of children of a dissolved marriage which was conductedunder Native Law and custom, enunciated that under most systems of CustomaryLaw in Nigeria, a father of a legitimate or legitimated child has absolute right tocustody of the child. However, the Customary Laws recognizes that such absoluteright of the father will not be entered where it will be detrimental to the welfare orwell-being of the child'In Odogwu v. Odogwu (1992) 2 NWLR (Pt. 225) P.539 @ 560,the Supreme Court enunciated that if the parents are separated and the child of theunion is of tender age, it is presumed that the child will be happier with the motherand no order will be made against this presumption unless it is abundantly clear thatthe contrary is the situation for example immorality of the mother, infectious diseaseon the mother insanity, and or her cruelty to the child. For this purpose custodyproceedings could even be adjourned to the judge's chambers where an informalhearing of the child’s view could be assessed along with those of the parents. Ojo v.Ojo (1969) 1 All NLR 434; Apara v. Apara (1968) l All NLR 241.E. I. Nwogugu, in hisbook on Family Law in Nigeria, 1974, (Reprinted 1985) dealing with custody ofchildren under Customary law put the position of the law succinctly thus:“Under mostsystems of Customary Law in Nigeria, the father has the absolute right to thecustody of his legitimate or legitimated children. On the death of the father, thecustody of the child is vested in the male head of the father's family, though themother has the day-to-day care of the child. However, Customary Law recognizesthat the father's absolute right will not be enforced where it will be detrimental to thechild's welfare. For instance, where the child is of tender age, Customary Lawrequires that it should be left under the care of the mother. In such a case, thefather's right is merely in abeyance, and may be exercised when the child couldsafely be separated from the mother. "Margaret C. Onokah, in her BOOK FAMILYLAW, 2002, wrote that:"Under Customary Law, a father has exclusive custodial rightover the children of his marriage. This right extends beyond custody, to "ownership"of the children. Thus his right has been described as capable of transmission to hisfamily members. The wife has no such rights over her children. During separation oron dissolution of a marriage under Customary Law, the father has custody of thechildren of the marriage. This exclusive custodial right of a father over the children ofthe marriage does not obtain under statutory marriage. In this latter, the Courtdetermines which of the parents has custody of the children, 'the paramountconsideration being the welfare of the children themselves. This rule of CustomaryLaw hinged on the fact that most Nigerian communities are patrilineal (a few beingthe opposite matrilineal) by reason of which children belong to their fathers'lineage."Per BDLIYA, J.C.A. (Pp. 7-10, Paras. C-B) - read in context

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3 MATRIMONIAL CAUSES - CUSTODY OF A CHILD: How the right of custody ofchildren can be determined"How can the right of custody of children be determined under the Customary Law?The answer to the foregoing question can be found in the case of Okwueze v.Okwueze (1989) 3 NWLR (Pt.109) P. 321 @335, wherein UWAIS J.S.C (as he then was)said: "The only proper manner in which the custody of a child under Customary Lawcan be determined is by specifically taking evidence to establish what is in the bestinterest and welfare of the child. Like the Customary Court, the High Court failed todo so. Its decision cannot, therefore, be said not to have caused a miscarriage ofjustice. Furthermore, the Court of Appeal made the same mistake since it agreedwith the decision of the Customary Court which has been shown to have been amisdirection. It too based its decision merely on the request made by the respondentin the Customary Court to have custody of the children and not on evidence adducedto determine the interest and welfare of the children."Per BDLIYA, J.C.A. (Pp. 10-11,Paras. B-A) - read in context

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IBRAHIM SHATA BDLIYA, J.C.A. (Delivering the

Leading Judgment): On or about the 28th of May 2005,

Paul Okafor (the respondent) and Charity Okafor (the

appellant) got married under the Tiv Native Law and

Custom in Vandekiya Local Government Area of Benue

State. They lived together at the Okafor Close, Mahuta

Kaduna up to the 16th of May 2014 when the appellant left

the matrimonial home without the consent of the

respondent. Thereafter, the marriage broke down resulting

to their living apart. There are 2 children of the marriage,

Precious Onyinye Okafor, 8 years, and Favour Chinyere

Okafor 5 years, both female.

The respondent as the petitioner initiated an action against

the appellant as the respondent before the Sabon Tasha

Customary Court (the trial Customary Court) claiming the

custody of the two (2) children of the marriage. After the

taking of evidence and addresses of counsel, the trial Court

delivered its judgment on the 19th of December, 2014, in

favour of the appellant, that is granting the custody of the 2

children to the appellant. Dissatisfied with the judgment,

the respondent appealed to the Customary Court of Appeal,

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Kaduna state (the Lower Court) on the 5th of January,

2015. The Lower Court delivered its judgment on the 30th

of June 2015, in favour of the respondent, whereby the

judgment of the trial Customary Court was set aside, with

the consequential order of granting the custody of the

children to the respondent.

The appellant aggrieved by the judgment of the Lower

Court filed a notice of appeal to this Court on 2nd of July

2015 on 3 grounds of appeal. The appellant filed brief of

argument on the 4th of September 2015. The respondent

filed brief of argument on the 7th of October, 2015. The

appeal was heard on the 18th of January 2016; whereat,

Amos Esq. who settled the appellant's brief adopted same,

and urged the Court to allow the appeal, set aside the

judgment of the Lower Court, and restore that of the trial

Court. Akobueze Esq., of learned counsel to the

respondent, adopted his brief of argument and did urge the

Court to dismiss the appeal for lacking in merit and affirm

the judgment of the Lower Court.

On page 4 of the appellant'��s brief of argument a lone

issue has been distilled from the 3 grounds of the notice of

appeal, which is thus:

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"Whether considering the evidence placed by the parties

before the Lower Court, the Lower Court was right in

entering judgment in favour of the respondent thereby

granting custody of the two girls who are minors to the

respondent."

The respondent similarly formulated a lone issue out of the

3 grounds of the notices of appeal which can be found on

page 3 thereof. It is thus:

"WHETHER the Customary Court of Appeal, Kaduna was

not right in law to award custody of the two children of the

marriage to the respondent"

The law is trite, in the hearing of an appeal an Appellate

Court can adopt, reframe or formulate issues which it

thinks appropriate for the determination of the appeal,

provided, the issue, whether adopted, reframed or

formulated, is or are predicated on the grounds of the

notice of appeal, filed by the appellant. See Latunde v.

Lajinfi (1989) 3 NWLR (Pt.108). In this regard, the lone

issue distilled from the 3 grounds of the notice of appeal by

the parties for the appeal is hereunder reframed for the

sake of breusty, clarity and precision for the just

determination of the appeal.

"WHETHER, CONSIDERING

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THE EVIDENCE ADDUCED BY THE APPELLANT AND THE

RESPONDENT BEFORE THE TRIAL CUSTOMARY COURT

THE CUSTOMARY COURT OF APPEAL (THE LOWER

COURT) WAS RIGHT IN ENTERING JUDGMENT IN

FAVOUR OF THE RESPONDENT THERE BY GRANTING

CUSTODY OF THE CHILDREN OF THE MARRIAGE TO

THE RESPONDENT.”

Amos Esq., who settled the appellant's brief of argument

contended that:

"The Lower Court was wholly wrong in its decision in

upturning the judgment of the lower trial Court which

granted custody to the appellant based on the evidence that

was placed before the Court by the Parties.

The learned justices erred fundamentally both in law and

on the evidence placed before it in setting aside the

judgment of the lower trial Court and entering judgment in

favour of the respondent in the appeal before it."

Learned counsel cited and relied on several decided

authorities and Text Books to buttress his submissions

supra, and did urge the Court to allow the appeal, set aside

the judgment of the Lower Court' and in consequence,

restore the judgment of the trial Customary Court.

For the respondent, Akobueze Esq. of learned counsel,

submitted that

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under Customary Law a father has exclusive, custodial

right over the children of a marriage in the event of the

dissolution of a marriage. That such right extends beyond

custody to ownership of the children. That the wife has no

right to the custody of the children of the marriage after

the dissolution of such marriage. The case of Aliakam v.

Anyanwu (1975) ECSLR p.305 and Family Law by

Margaret C. Onokah P.178 as well as Family Law in

Nigeria by E. I. Nwaogugu P.260 were relied on to

reinforce the submissions supra.

In conclusion, learned counsel adumbrated that:

"That the learned judges of the Customary Court of Appeal,

Kaduna rightly considered the factors for awarding the

custody and property granted custody to the respondent

considering the whole circumstances of this case.

That the two children of the marriage are of the ages of

conveniently living with the respondent, their father.

That the appellant considering her economic power is not

better than the respondent and the respondent is better

placed to take care of the children.

That the appellant's moral standing is reprehensible and

should not be

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allowed to live with the children in such an adulterous

relationship with the party cited, MR. CHARLES, to protect

the children'��s morals.

That the general welfare/paramount interest of the children

is in favour of grant of the custody to the respondent

considering the circumstances."

The Court has been urged to dismiss the appeal for lacking

in merit, and in the result affirm the judgment of the Lower

Court.

On pages 103 to 104 of the printed record of appeal, the

Lower Court concluded its judgment as follows:

"In conclusion, we agree with the submission of the

appellant counsel, that custody could have been better

given/awarded to the appellant having consider all the

factors surrounding the welfare and the interest of the

children. Hence, the interest of the children will be better

served and: protected if they are with the appellant. The

issue is resolved in favour of the appellant, while the issue

of counterclaim fails.

Consequently, the judgment of the trial Court, Sabon Tasha

is hereby set aside the custody of the two children of the

marriage, namely, Precious Onyinye and Favour Chinyere

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Okafor, now ages 10 and 6 years respectively, is hereby

given to the appellant.

However, the respondent is at liberty to ask the appellant

to take them to her for a visit or spend part of their

holidays with her",

Were the learned judges of the Lower Court right in their

reasonings and conclusions supra, whereby the judgment of

the trial Customary Court was set aside and the right of the

custody of the two children was given to the respondent? I

think, it is apposite, at this juncture to resort to the position

of the law on the right to custody of children in situation

where a marriage has been broken down, and the husband

and wife (father and mother) are no longer living together.

In Okwueze v. Okwueze (1989) 3 NWLR (Pt. 109) P.

321 @ 334, the Supreme Court, when dealing with the

right to custody of children of a dissolved marriage which

was conducted under Native Law and custom, enunciated

that under most systems of Customary Law in Nigeria, a

father of a legitimate or legitimated child has absolute right

to custody of the child. However, the Customary Laws

recognizes that such absolute right of the father will not be

entered where

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it will be detrimental to the welfare or well-being of thechild'In Odogwu v. Odogwu (1992) 2 NWLR (Pt. 225)P.539 @ 560, the Supreme Court enunciated that if theparents are separated and the child of the union is oftender age, it is presumed that the child will be happierwith the mother and no order will be made against thispresumption unless it is abundantly clear that thecontrary is the situation for example immorality of themother, infectious disease on the mother insanity, and orher cruelty to the child. For this purpose custodyproceedings could even be adjourned to the judge'schambers where an informal hearing of the child’s viewcould be assessed along with those of the parents. Ojo v.Ojo (1969) 1 All NLR 434; Apara v. Apara (1968) lAll NLR 241.E. I. Nwogugu, in his book on Family Law in Nigeria,1974, (Reprinted 1985) dealing with custody ofchildren under Customary law put the position of the lawsuccinctly thus:“Under most systems of Customary Law in Nigeria, thefather has the absolute right to the custody of hislegitimate or legitimated children. On the death of thefather, the custody of the child

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is vested in the male head of the father's family, though the

mother has the day-to-day care of the child. However,

Customary Law recognizes that the father's absolute right

will not be enforced where it will be detrimental to the

child's welfare. For instance, where the child is of tender

age, Customary Law requires that it should be left under

the care of the mother. In such a case, the father's right is

merely in abeyance, and may be exercised when the child

could safely be separated from the mother. "

Margaret C. Onokah, in her BOOK FAMILY LAW,

2002, wrote that:

"Under Customary Law, a father has exclusive custodial

right over the children of his marriage. This right extends

beyond custody, to "ownership" of the children. Thus his

right has been described as capable of transmission to his

family members. The wife has no such rights over her

children. During separation or on dissolution of a marriage

under Customary Law, the father has custody of the

children of the marriage. This exclusive custodial right of a

father over the children of the marriage does not obtain

under statutory marriage. In this latter, the Court

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determines which of the parents has custody of the

children, 'the paramount consideration being the welfare of

the children themselves. This rule of Customary Law

hinged on the fact that most Nigerian communities are

patrilineal (a few being the opposite matrilineal) by reason

of which children belong to their fathers' lineage"��.

How can the right of custody of children be determined

under the Customary Law? The answer to the foregoing

question can be found in the case of Okwueze v. Okwueze

(1989) 3 NWLR (Pt.109) P. 321 @

335, wherein UWAIS J.S.C (as he then was) said:

"The only proper manner in which the custody of a child

under Customary Law can be determined is by specifically

taking evidence to establish what is in the best interest and

welfare of the child. Like the Customary Court, the High

Court failed to do so. Its decision cannot, therefore, be said

not to have caused a miscarriage of justice. Furthermore,

the Court of Appeal made the same mistake since it agreed

with the decision of the Customary Court which has been

shown to have been a misdirection. It too based its decision

merely on the request made by the respondent

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in the Customary Court to have custody of the children and

not on evidence adduced to determine the interest and

welfare of the children".

The appellant and the respondent gave evidence before the

trial Customary Court Sabon Tasha Kaduna in the petition

filed by the respondent (as petitioner) seeking for the right

of custody of the 2 children when the marriage broke down

and they were living apart. The respondent (as petitioner)

testified at the trial Customary Court which have been

recorded on pages 43 - 48 of the printed record of appeal.

The relevant and material testimony of the respondent to

the custody of the 2 children are on page 48. It is thus:

"My names are Paul Okafors; I live at Chief Okafor close No

1; behind Davina suite Mahuta village Kaduna by refinery

junction I am a pensioner and a Business may I am 58 Yrs

old.

I brought this petition for custody of my two female

children namely Precious Onyinye Okafor aged 9 yrs

and Favour Chinyere Okafor aged 5 yrs who are presently

staying with me.

The mother of these children is the respondent whom I

married under the TIV native law and

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custom on the 28th May 2005 in her village in Vandekiya

Local Govt of Benue state and land from Aicha Local Govt

left Anambra State.

After the marriage we have been staying at No. 1 Okafor

Close Mahuta until 16th May 2014 when the respondent

left the matrimonial home without any reason and she is

living with my friend at Agwan Gimbiya, Jagaba Street; our

marriage has broken down as she left me without my

consent.

1. I want the custody of my children because I paid the

dowry to the parent that is why she was my legally married

wife.

2. Since she did not seek my consent or discuss with me

concerning breaking the marriage she left with my children

that is why I want my children back.

3. I have a legacy and standard law protecting concerning

the children so that they can be useful to the society and to

bide my character and my culture.

I am therefore looking for the permanent custody of the

children as law only having a temporal custody of them."

As to the interests and welfare of the 2 children, this is

what she said on page 45 of the record of appeal:

"The children are

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schooling at covenant star Academy at Agwan Boro and I

pay N63,000 per term for them where may take Back fast

and lunch; including the break-fast they take before going

to school.

I also have a program where I am saving for their

education; I also pay N6,000= for their school bus per

month and where the bus breaks down I do pick them

myself even when the respondent was around.

The children are more comfortable with me because even

when their mother was around I am the one that make

myself available for the children I also make since that

provides what so ever is good a child expects from the

father. We are a staying in a six bed room flat with a large

compound and a flower Garden for children paying coned

by me.

My business premises is situated in front of my compound

where I sale Building materials and a provision store that is

why I am 24 hrs available in my house.

The place where my children are now i.e my house their

house and they are more comfortable there them in a

rented house where they were before when the respondent

ran away with them. The environment where they were

taken to is not suitable

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for the children to live."

The appellant (who was the respondent at the trial Court)

gave evidence to support her claim of right to the custody

of the 2 children as recorded on page 49 of the printed

record of appeal:

"My names are Charity Okafor I live at No.3 Angwan

Gimbiya, Jagaba Street N.3 Kaduna: I am a business woman

I sale clothes at Angwan Pama Sabo Tasha; I am 31 Yrs old.

I know the petitioner he was my husband; I am aware that

the petitioner brought this petition for custody of this two

children. Precious Okafor and Favour Okafor. The

petitioner cannot be able to take care of the children

because they are Girl children and they are too small and

being their mother and still alive he don't have good

training to give them for instances the smokes and he is

drunkard.

I said they girls and too small because the 1st, girl child as

born on 16/6/2006 i.e 8 yrs and the 2nd one was born on

the 16/9/2009 i.e about 5 yrs old. I have their birth

certificate with me and I can identify the birth certificates

by their name issued by the Kaduna North Local Govt.

stamp.

Ct: Do you have any objection in

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tendering the birth certificate in evidence?

Aneme: we have no objection in tendering the certificates

in evidence.

Ct: The birth certificates of the children i.e. Precious and

Favour are hereby admitted in evidence a marked Exhibit 2

and 3."

As to the reason why she objected to the respondent being

granted the right of custody of the children, he testified

thus on page 50 of the printed record of appeal:

"DW1: The children are his but considering their ages and

being Females he cannot be able to take care of them or

any other women; when the children grow up if he is still

interested in them staying with him then he can have them.

The problem which let to this matter being in Court stated

last year Feb 7, 2013 when the petitioner started bringing

woman into our matrimonial home and when I caution him

he got anger and told me that I am not the one to live his

life for him and if I dont think what he is doing that I should

have his house; so when the problem became too much

sometime in June 2013 he then called my parent to come

and when the came he carried me together with my

children and hand us over

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to my father that he is no longer interested in themarriage, that my father should go with me and mychildren".

The evidence of the respondent (as the petitioner) andthat of the appellant (as the respondent) at the trialCourt, established that:i. The marriage between the appellant and therespondent was conducted under the Tiv Native Law andCustom.ii. The children of the marriage, Precious OnyinyeOkafor and Favour Chinyere Okafor were 8 and 5 yearsrespectively, at the time of the trial at the Lower Court.iii. The evidence of the respondent on what he had doneor prepared to do for the children on regarding theirwelfare, education and upbringing have not becontroverted by the appellant.

The settled principles of law on the right to custody ofchildren under Customary Law enunciated in the case ofOkwueze v. Ukwueze (1989) 3 NWLR (Pt.109) P.231 @ 334; Family Law in Nigeria by E. Z. NwoguguP. 260 and Family Law by Magaret C. Onokah pages178-179 reinforces the Lower Court's reasoning andconclusion on page 101-102 of the printed record ofappeal whereby the judgment of the trial CustomaryCourt was set aside, and the

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right of custody of the two (2) children was restored to the

respondent thus:

"The trial Court in its judgment, especially on pages 44-45,

gave the following reasons why custody was given to the

respondent, that -

1. The children are minors, ages 8 & 5 years, hence not in

the interest of justice to grant custody to the petitioner.

2. That the respondent enrolled them in school

3. That the respondent has a source of livelihood and stays

in a 2 bedroom apartment.

The respondent counsel in his submission contended that

the respondent has means of livelihood and had enrolled

the children in school as stated by the respondent in her

evidence. We have stated the reasons why the trial Court

awarded custody to the respondent. The first reason is that

the children are minors. The children in question as at the

time of the case before the trial Court they were 8 & 5

years. See page 9 of the record in the evidence of PW1, the

petitioner. It should be noted that the union between the

appellant and the respondent was contracted under TIV

Native Law and Custom. Generally in most if not all tribes

in

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Nigeria, children custody is to the father especially when

they are of the ages of three to five. In Family Law by

Margaret C. Onokah, on page 179 it was stated that:

"Although a woman may have custody of the those children

who are of tender age at the time of the divorce, this is only

temporal. When the children have reached the age of three

to five years, their father exercises his right to have them

under his custody"

In the instance case as we have stated supra, the children

in question as at the time of the judgment before the trial

Court, they were 9 & 5 years old. It is our humble view, the

children at that age can conveniently stay with the

appellant. More so, there is no evidence before the trial

Court which shows any disaffection or lack of harmony

between the appellant and the children."

The reasonings and conclusions arrived at by the Lower

Court cannot be faulted. Consequently, the sole issue

raised and argued by learned counsel to the parties in their

respective briefs of argument is hereby resolved against

the appellant. In the result, the appeal fails, the judgment

of the Lower Court delivered on

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t h e 3 0 t h o f J u n e , 2 0 1 5 , i n A p p e a l N o .

CCA/KAD/KD/10A/2015 is hereby affirmed. I make no order

as to

costs.

UWANI MUSA ABBA AJI, J.C.A.: I had a preview of the

leading judgment of my learned brother, Ibrahim Shata

Bdliya, JCA, just delivered.

I agree with the reasoning and conclusions arrived at by my

learned brother that the appeal is devoid of any merit. The

law was exhaustively considered by my learned brother in

the consideration of the issue for determination to the

extent that I have nothing useful to add.

I too dismiss the appeal. I abide by the consequential

orders made therein including orders as to costs.

ISAIAH OLUFEMI AKEJU, J.C.A.: I had the opportunity

of reading before now the judgment of my learned brother,

IBRAHIM SHATA BDLIYA JCA just delivered. I agree

that this appeal lacks merit based on the sound reasoning

and the resolution of the lone issue by my learned brother,

I dismiss the appeal and abide by the consequential order.

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