Position of the Law in Determining the Issue of Custody in Matrimonial Proceedings

CASE TITLE:  Atomatofa v. Atomatofa (2023) LPELR-60523(CA)

JUDGMENT DATE: 5TH JUNE, 2023

PRACTICE AREA: MATRIMONIAL CAUSES

LEAD JUDGMENT: UGOCHUKWU ANTHONY OGAKWU, J.C.A.

SUMMARY OF JUDGMENT:

INTRODUCTION:

This appeal borders on a petition for dissolution of marriage and custody of children.

FACTS:

This appeal is against the judgment of the High Court of Delta State, Otor-Udu Judicial Division (trial Court) in Suit No: B/641D/2016.

The case is a matrimonial cause matter wherein the Appellant was the Petitioner while the Respondent was the Respondent at the trial Court. The Appellant (Petitioner) petitioned the Respondent (Respondent) on the grounds that:

a) The marriage between the Petitioner and the Respondent has broken down irretrievably because:

i. The Respondent has willfully and persistently refused to consummate the marriage.

ii. Since the marriage, the Respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the Respondent.

iii. The Respondent has deserted the Petitioner for a continuous period of one year immediately preceding the presentation of this petition.

iv. The Respondent has committed adultery.

The Appellant at the trial Court sought the following Orders:

a. “A Decree of the dissolution of the marriage between the petitioner and the Respondent solemnized under the Matrimonial Causes Act at the Marriage Registry, Otor- Udu, in Udu Local Government Council on the 17th day of December, 2005 on the ground that the marriage has broken down irretrievably.

b. An order of this Honourable Court granting custody of

i. Angel Orowo Atomatofa (female) 12 years

ii. Peace Ufouma Omamuyovwi Atomatofa (female) 11 years and

iii. Joshua Ognenekparobor Chinedum Atomatofa (male) 8 years to the Petitioner.”

The Respondent on the other hand filed an answer and cross-petition but however, but she later filed a notice of withdrawal/discontinuance of the Cross-Petition and the same was accordingly struck out. At the close of the proceedings, the trial Court granted inter-alia custody of the three children of the marriage to the Respondent, the sum of N50,000 as monthly upkeep and welfare of the children to be payable by the Petitioner and that the Petitioner should in addition provide a befitting accommodation for the children.

Dissatisfied with the judgment, the Appellant appealed to the Court of Appeal.

ISSUES FOR DETERMINATION:

The following issues for determination were considered in the appeal:

“1. Whether the learned trial Judge did not err in law and therefore occasioned a miscarriage of justice when she failed to consider the point of law raised by the Appellant on the issue whether the Court below can grant the cross-petition of the Respondent, the Respondent having withdrawn the cross-petition and same struck out?

2. Whether the trial Court was right to grant the reliefs of the cross-petition already withdrawn and struck out by the Court below?”

DECISION/HELD:

In the final analysis, the appeal substantially failed and the same was dismissed, save for the custody of children granted by the trial Court to the Respondent. ​

RATIOS:

• MATRIMONIAL CAUSES – DIVORCE PROCEEDINGS – Rights of a respondent in a divorce petition
• MATRIMONIAL CAUSES – CUSTODY OF A CHILD – Principles guiding the exercise of discretion of Court regarding the issue of children/custody of children of a marriage
• PRACTICE AND PROCEDURE – DISCONTINUANCE/WITHDRAWAL OF A SUIT – Whether the Court can grant the relief(s) sought in a suit/process already withdrawn
• COURT – DUTY OF COURT – Duty of Court to consider all issues raised before it; attitude of an appellate Court where the lower Court does not consider all issues raised before it

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