OLAKUNLE APARA V. MODUPE APARA

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190

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NIGERIAN SUPREME COURT CASES

[1968] N.S.C.C.

OLAKUNLE APARA V. MODUPE APARA

5

ALBERT OLAKUNLE APARA

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APPELLANT

V

CHRISTIANA MODUPE APARA

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RESPONDENT

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10

SUIT NO. SC 28/1968

SUPREME COURT OF NIGERIA

ADEMOLA,

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C.J.N.

COKER,

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J.S.C.

MADAR !KAN.

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J.S.C.

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15

30th September, 1968.

Family Law - Matrimonial Causes - Divorce - Custody of children - Duty of

court to hear both parties fully before making a final order - No assumption

that successful party entitled to custody.

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ISSUES:

1.

Should a court assume that it is the successful party in a divorce petition that

is entitled to custody of the parties' children?

2.

Whether a court must hear both parties fully before making a final order on the

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custody of their children.

FACTS:

The petitioner petitioned for divorce in the High Court and judgment was given

in her favour; the court made an order for maintenance, as well as one granting

the petitioner custody of the children, and for costs. The respondent/husband ap-

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pealed, contending that the orders for maintenance, custody, and costs made

against him in the petitioner's favour were irregularly made. Counsel for the peti-

tioner argued that although the judge did not state his reasons for making these

orders, they were in any case properly made.

HELD:

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1 The matter of the custody of children of a broken marriage is important to the

parties as well as to the community and not only should this be argued in court

but judges should in appropriate case retire into chambers and discuss this

fully with counsel on both sides and their clients before making a final order in

court.

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2. It should not be assumed that the successful party must have custody of the

children or that he is the proper party to whom the care of the children of the

marriage should be entrusted.

3.

In this case, it was obvious from what appeared on the record that the trial judge

took no pains whatever to hear arguments of counsel on this issue before

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making the order. Consequently, the issue of custody should be sent back to

the court below for the trial judge to take appropriate steps to hear the parties

and/or their counsel fully.

Akinrele

(with him

Bickersteth)

for the Appellant.

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Braithwaite

(with him

Munis)

for the Respondent.