⦿ CASE SUMMARY OF:
Febisola Okwueze v. Paul Okwueze (1989) – SC
Custody of children under customary law;
(1989) NWLR (Pt.109) 321;
⦿ LEAD JUDGEMENT DELIVERED BY:
⦿ LAWYERS WHO ADVOCATED
* FOR THE APPELLANT
– Taiwo Kupolati, Esq.
* FOR THE RESPONDENT
– S.K.A. Adedoyin
The Appellant (Plaintiff at the trial customary court) got married to the respondent (Defendant at the trial customary court).
The Appellant had four issues (children) for the Respondent. Later, the Appellant sought for a divorce from the trial customary court which was granted to her. However, the custody of the issues (children) were given to the defendant.
This, the Appellant herein challenged at the High Court on appeal and was successful.
The Respondent herein challenged the High Court’s decision at the Court of Appeal and was successful.
The Appellant being dissatisfied with the decision of the Court of Appeal has herein appealed to this Court.
1. Whether the Court of Appeal was not wrong in awarding the custody of the children of the marriage of the parties to this appeal to the respondent herein without first ascertaining by due inquiry and adequate consideration the interest and welfare of the children of the said marriage.
2. Whether the Court of Appeal did not wrongly apply the decision in Ekpeyong & Ors. v. Nyong & Ors. (1975) 2 S.C. 71 to the appeal before them and to the effect that the award of custody of the children of the marriage to the appellant herein by the appellate High Court was wrong in that she never requested or asked for same in her writ.
3. Whether the award of custody of the children of the marriage to the Respondent herein by the trial court and the Court of Appeal was not based on wrong considerations and whether the said award was supported by clear evidence.
4. Whether the learned Justices of the Court of Appeal did not misdirect themselves in law when they held that there was no evidence on which the appellate High Court based its order and conclusion that the issues of the marriage had been staying with the appellant herein before the divorce decree was made by the trial court.
⦿ HOLDING & RATIO DECIDENDI
The Supreme Court granted custody of only the youngest child, Gloria, as she was under 16 to the Mother. It stated, “Gloria being a female, I do not deem it necessary to remit the case to the Customary Court to determine which of the parents should have her custody. I am inclined to give her custody to the appellant her mother, in accordance with the practice under Yoruba customary law as stated in Marriage and Divorce under Yoruba Customary Law by R.O. Ekundare. In the result the appeal succeeds. The decisions of the High Court and the Court of Appeal are hereby set-aside. The decision of the Customary Court in respect of the custody of all the children is also set aside. The appellant is hereby granted the custody of Gloria who is the youngest of the children.”
Subsection (1) of Section 22 of the Customary Courts Law, Cap 33 of the Law of Ondo State, 1978;
⦿ SOME PROVISIONS
S.22(1) of the Customary Courts Law, Cap 33 Laws of Ondo State 1978:
“In any matter relating to the guardianship of children, the interest and welfare of the child shall be the first and paramount consideration.”
The Children and Young Persons Law Cap. 21 of the Laws of Ondo State 1978 defines “child” as a person under the age of 14 years; and the Infants Law, Cap. 49 of the Laws of Ondo State, 1978 defines “child” as a person under the age of twenty one years.
The practice under Yoruba customary law which has been stated by R.O. Ekundare in his booklet titled Marriage and Divorce under Yoruba Customary Law; where it is stated as follows on p.64 thereof – “In the case of a dissolution, the customary court will consider what is best for the child. If the child is too young, e.g. if it has not been weaned, the court will grant an interim order giving the custody to the mother notwithstanding the fact that she has been found to be the guilty party. If the child has attained, say, the age of five, the court will have to consider who can best take care of the child. If the court is convinced that the father can best provide for the child, especially when the mother has no independent means of her own, the child will be put in his custody, notwithstanding the fact he was the guilty party. The sex of the child is also taken into consideration. A female child is considered to be more comfortable with the mother, while a male child is considered to fit in with the father. The court may refuse to grant custody to either of the parents, if the court is convinced that none of them is capable of giving the child the best care. In such a case the court may decide to grant custody to a guardian (in most cases, a relative)”.
Order XI rule 1 of the Customary Courts Rules of Ondo State which say:
“1. A court may in its discretion make any order within its powers and jurisdiction which it considers the justice of the case demands whether or not the order has been asked for by the party who is entitled to the benefit thereof: Provided that judgment shall not be given, except as to costs, for a greater sum of money than that claimed in the particulars of claim.”
⦿ NOTABLE DICTA
In general, under most systems of customary law in Nigeria the father of a legitimate child or legitimated child has absolute right to custody of the child. However customary law recognises that the absolute right of the father will not be enforced where it will be detrimental to the welfare of the child. – Uwais, J.S.C. Okwueze v. Okwueze (1989)
I must also keep it constantly at the back of my mind that in dealing with the proceedings in customary courts what matters most is substantial justice without regard to technicalities. – AGBA JE, J.S.C. Okwueze v. Okwueze (1989)
In respect of Gloria a female aged 6 1/2 years at the time of the trial and now 13, for reasons hereinafter appearing, an order for custody can properly be made with due regard being paid to her welfare and interest as the first and paramount consideration. As regards the other children of the marriage there was no sufficient material on the printed evidence upon which a custody order in favour of the plaintiff or the defendant can be granted consistently with due regard being paid to the law that their welfare and interest shall be the first and paramount consideration. So in their case the proper order the Court of Appeal should have made, having set aside the custody order made by the appellate High Court, was to have sent the custody issue in respect of them to the trial court for a retrial. But the Court of Appeal did not do this. It wrongly in my view restored the custody order of the trial court. – AGBA JE, J.S.C. Okwueze v. Okwueze (1989)
I have said earlier on in this judgment that in the custody proceedings now before us a custody order will not be made in respect of a child who attained the age of 16 years. So in respect of Bosede and Ngozi who have attained the age of more than 16 years no custody order can be made in respect of them and any subsisting custody order in respect of them has lapsed. – AGBA JE, J.S.C. Okwueze v. Okwueze (1989)