CASE TITLE: AKINMOSIN v. AKINMOSIN (2023) LPELR-61125 (CA)
JUDGMENT DATE: 3RD OCTOBER, 2023
PRACTICE AREA: MATRIMONIAL CAUSES
LEAD JUDGMENT: YUSUF ALHAJI BASHIR, J.C.A.
SUMMARY OF JUDGMENT:
INTRODUCTION:
This appeal borders on Child Custody and Settlement of Property in Matrimonial Disputes.
FACTS:
This appeal is against the decision of the Ondo State High Court (Family Court) Akure, delivered by Aderemi Adegoroye J. on the 11th day of June, 2019.
The Respondent initiated the action at the trial Court on April 4, 2018 by way of a petition for dissolution of marriage and custody of children based on so many grounds, including cruelty, adultery, irresponsible behaviour, lack of care and attention, etc., which collectively sums up to the fact that the marriage had broken down irretrievably. As a result, the parties have since separated and each has been on their own.
The Petitioner/Respondent therefore prayed the trial Court for a decree of dissolution of the marriage and custody of the children of the marriage and sought the following orders:
- A decree for the dissolution of the marriage contracted on September 10th, 2005, between the Petitioner and the Respondent in the Mary Queen of Angels Catholic Church, Akure, Ondo State, Nigeria, on the ground that the marriage has broken down irretrievably in that the Respondent has behaved in such a way that the Petitioner cannot be reasonably expected to live with the Respondent.
- Custody of the children of the marriage now living with the petitioner, namely:
a. Miss Adetoye Akinmosin, aged 12 years, was born on December 20, 2005.
b. Master Adetoye Akinmosin, aged 10 years, born on October 307.
c. Miss Moyo Akinmosin, aged 8 years, born on the 23rd of July, 2010.
- Monthly payment of a sum of thirty thousand naira (30,000.00) per child for their maintenance.”
Meanwhile, the Appellant and the Respondent to the petition at the trial court filed their answers to the petition on the 2nd day of May 2018, accompanied by a cross petition also asking for the dissolution of the marriage between him and the Petitioner/Cross Respondent on grounds of irresponsible attitude, adultery, desertion, and so many other grounds.
The Appellant’s reliefs are stated as follows:
a) “A DECREE OF DISSOLUTION of marriage between the parties on the ground that the marriage has broken down irretrievably and that since the marriage, the Petitioner/Cross-Respondent has behaved in such a way and manner that the Respondent/Cross Petitioner could not reasonably be expected to live with the Petitioner/Cross- Respondent; that the Petitioner/Cross-Respondent has deserted the Respondent/Cross-Petitioner for at least one year immediately preceding the presentation of this petition.
b) AN ORDER of this Court granting custody of the children of the marriage to the Respondent/Cross-Petitioner.
c) A MANDATORY ORDER preventing any of the parties from taking the children of the marriage for studies outside Nigeria until they mature without the knowledge and consent of the two parents.”
After the exchange of pleadings, the matter went to full trial. The Respondent/Petitioner testified alone for herself and tendered documents, while the Appellant/Respondent before the trial Court testified and called two other witnesses. They tendered some documents equally. Counsel to the respective parties addressed the Court.
The Court finally entered judgment on the 11th day of June, 2019 and held that the petitioner’s petition succeeded, the decree for the dissolution of the marriage between the parties was granted and the marriage was therefore dissolved.
The petitioner was granted custody of the three issues of the marriage. The Respondent/Cross-Petitioner was ordered to pay a monthly stipend of N15,000.00 (fifteen thousand naira) per child for their welfare and upkeep, aside from school fees, which he shall also pay in full. The Court also settled the control and ownership of property between the parties. The cross-petition of the cross-petitioner was dismissed.
The Appellant, dissatisfied with the decision, filed this appeal. The Respondent in the appeal also filed a cross-appeal challenging some aspects of the judgment of the trial Court in respect of the order for settlement of property.
ISSUE(S)FOR DETERMINATION:
The appeal was determined on the following issues:
“a. Whether the trial Judge was right to have settled properties between the Appellant and the Respondent when neither of them in the petition or Cross Petition claimed specifically any relief on settlement of properties.
b. Whether the trial Court was right in awarding custody of all the children of the marriage to respondent while at the same time ordering that the Appellant shall be fully responsible for the school fees and maintenance fee of N15,000.00 per child monthly for the three children without due regard to the principles pertaining to maintenance proceedings and the paramount interest or welfare of the children.
c. Whether, from all the evidence adduced before the Court, the trial Judge was right to hold that the evidence of the respondent based on the petition outweighs that of the Appellant, thereby holding that the petition succeeds and dismissing the cross petition.”
The Court also considered the merits of the cross-appeal.
DECISION/HELD:
The appeal was partially allowed to the effect that the order granting custody of the children along with the orders for payment of maintenance to the respondent was sustained while the order concerning settlement of property not being specifically claimed was set aside.
Accordingly, the cross-appeal, having been anchored on incompetent or nonexistent relief, was deemed incompetent and was therefore dismissed.
RATIOS:
• ACTION – CLAIM(S)/RELIEF(S): Whether parties and the court are bound by reliefs claimed; whether the grant of a relief which was not claimed amounts to breach of fair hearing; and the effect of same
• EVIDENCE – STANDARD OF PROOF: Standard of proof in a civil case; how court determines the preponderance or weight of evidence
• MATRIMONIAL CAUSES – MATRIMONIAL PROCEEDING(S): Whether a petitioner can raise a new head of relief in his reply different from the ones raised in the petition
• MATRIMONIAL CAUSES – MATRIMONIAL PROCEEDING(S): Nature of reply in matrimonial proceedings; whether a petitioner can raise a new head of relief in his reply different from the ones raised in the petition
• MATRIMONIAL CAUSES – CUSTODY OF A CHILD: Principles governing the grant of custody of children after the dissolution of a marriage
• MATRIMONIAL CAUSES – MAINTENANCE: Principles governing the grant of maintenance order in matrimonial causes
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if the appeal was partially allowed as to the issue of custody and maintenance, then the properly verdict is to set aside the order of the High Court that granted custody to the Respondent in the first instance.