Dr. Ojor Ayemoba V Mrs Olubunmi Ayemoba

LEGALPEDIA ELECTRONIC CITATION:LER[2018]CA/K/382/2016

AREAS OF LAW:

APPEAL, COURT, JUDGMENT AND ORDER, JURISDICTION, MATRIMONIAL CAUSES, PRACTICE AND PROCEDURE, WORDS AND PHRASES

SUMMARY OF FACTS:

The Petitioner and 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 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 the matrimonial home without his knowledge and made same unconducive. He left or deserted the matrimonial home on 25th March, 2007, and asserted that the marriage had broken down irretrievably. Hence the Appellant filed a petition at the High Court of Kaduna State, where he claimed, among others; a decree of dissolution of the marriage between the Petitioner and the Respondent on the ground that the marriage has broken down irretrievably; custody of the only child of the marriage, Joseph Odaloje Ayemoba. The Respondent joined issues, and denied the allegations. She cross-petitioned and accused him of adultery and wife battery. She claimed the following reliefs; that the marriage should not be dissolved; sole custody of the child and maintenance. The lower court granted the petition and cross-petition in parts. Dissatisfied with the lower court’s decision, the Appellant has filed this appeal.

HELD:

Appeal Allowed Partly

ISSUES FOR DETERMINATION:

• 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.
• 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.

RATIONES:

ISSUE OF JURISDICTION – DUTY ON COURTS TO CONSIDER THE ISSUE OF JURISDICTION FIRST WHEN IT ARISES IN PROCEEDINGS

“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”. PER O. F. OGBUINYA, J.C.A.

RELIEFS – WHETHER COURTS HAVE THE POWER TO GRANT RELIEFS NOT CLAIMED BY PARTIES

“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.” PER O. F. OGBUINYA, J.C.A.

STATEMENT OF CLAIM – EFFECT OF ABSENCE OF PRAYERS IN A STATEMENT OF CLAIM

“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.” PER O. F. OGBUINYA, J.C.A.

RELIEFS- WHETHER IT IS NECESSARY FOR RELIEFS TO BE PLEADED AND SERVED ON A DEFENDANT

“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.” PER O. F. OGBUINYA, J.C.A.

“CONSEQUENTIAL”- MEANING OF “CONSEQUENTIAL”

“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.” PER O. F. OGBUINYA, J.C.A.

CONSEQUENTIAL ORDER- NATURE OF A CONSEQUENTIAL ORDER

“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; Amechi 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; Namman v. Hajo (2016) 8 NWLR (pt. 1515) 411.” PER O. F. OGBUINYA, J.C.A.

“DISCRETION”- MEANING OF “DISCRETION”

“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.” PER O. F. OGBUINYA, J.C.A.

EXERCISE OF DISCRETION – EXTENT OF AN EXERCISE OF DISCRETION BY COURTS

“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. PER O. F. OGBUINYA, J.C.A.

COURT- WHAT DOES IT MEAN 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.” PER O. F. OGBUINYA, J.C.A.

CUSTODY OF A CHILD – CONSIDERATIONS BY A COURT IN GRANTING THE CUSTODY OF A CHILD

“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.” PER O. F. OGBUINYA, J.C.A.

DECISION OF COURT – WHETHER A COURT OF LAW IS BOUND BY A PRECEDENT  IN AN EARLIER DECISION

“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.” PER O. F. OGBUINYA, J.C.A.

EXERCISE OF DISCRETION – ATTITUDE OF AN APPELLATE COURT TO THE EXERCISE OF DISCRETION BYA LOWER COURT

“An appellate is, usually, loath to interfere 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, see Ajuwa v. S.P.D.C.N. Ltd (supra); T.S.A. Ind. Ltd. v. Kema Inv. Ltd (2006) 2 NWLR (Pt. 964) 300.” PER O. F. OGBUINYA, J.C.A.

 

STATUTE REFERRED TO:

Matrimonial Causes Act, Cap M7, Laws of the Federation of Nigeria, 2004