Factual Summary of the Case of Williams v. Williams
The case of Williams v. Williams (1987) 2 NWLR (Pt. 54) 66 SC represents a strong judicial authority on legal issues in child custody dispute in Nigeria. The case started around 1981 before Hon. Justice Oladipo Williams of the High Court of Lagos State, whose judgement of 12th November 1982 was reversed by the Court of Appeal Lagos Division (by a majority of two to one) in an appellate decision of 3rd December 1984, against which a final appeal was filed before the Supreme Court whose final judgment was delivered on 3rd April 1987. It took the husband and wife a total of about six (6) years to settle their child custody battle through the court system.
The case was filed by Mr. Rasheed Ahmed Williams against Mrs. Theresa Temitope Williams (who at the time was a Chief Magistrate and later appointed Judge of the High Court of Lagos State) following the breakdown of their marriage. The marriage was dissolved by a decree nisi, which was later made absolute. However, an appeal arose against the Judge’s order granting custody of their girl child to the appellant who was absent during the trial. There were three (3) children of the family, namely, Rasheed Ayodele Williams (male); Hakeem Akintola Williams, (male) and Kafilat Abimbola Williams (female). There was no contest about the custody of Rasheed Ayodele Williams and Hakeem Akintola Williams, both of whom have been in the care and custody of the respondent (the father) who enrolled them in a school in England since the parties separated on 1st October, 1975. The contest was only in respect of the custody of Kafilat Abimbola Williams who had been in the care and custody of the appellant (the mother) since the parties separated.
An excerpt of the respondent’s testimony is as follows:
“I … pray the court not to grant her request for custody of Abimbola. She has no time for her. She leaves for her work at 7.00 a.m. She leaves her in the care of maid who will take her where they want to go and take taxi to school. In the afternoon, she is still in court. She has an arrangement with Mrs. Finnih and Mrs. Egbeyemi, her friends who collect her and help her until she goes to collect her in the evening.
In the last two years she has been travelling in and out of the country leaving the girl in the care of friends. All these convince me that she has no time for her.
I will like the court to grant me a divorce because our marriage has broken down completely and to grant me custody of the girl for a better quality of education and hope thereafter. I want also the custody of the two boys.”
As noted by the Supreme Court, there was no testimony from the appellant. So the judge’s decision was based on unchallenged evidence of Mr. Williams.
The Summary of Decision by the Trial Judge, Court of Appeal and the Supreme Court
Justice Oladipo Williams, who heard and determined the petition, granted custody of the child to the appellant (mother). This was after hearing evidence from only the respondent as the appellant did not attend the proceedings to testify in support of her application for custody and did not appear at the hearing of the petition.
The Court of Appeal to which the respondent took the matter on appeal, by a majority of two to one (coram: Philip Nnaemeka-Agu, J.C.A., presided and delivered the Lead Judgment, Idris Legbo Kutigi, J.C.A., read dissenting judgment,andBarclay P. Pepple, J.C.A.), reversed the decision of Oladipo Williams, J. and granted custody to the respondent. The appellant being dissatisfied has brought the issue of question of custody to Supreme Court for determination, which on 3rd April 1987, the apex court unanimously allowed but granted joint custody.
The following Justices of the Supreme Court constituted the panel that delivered the unanimous judgment under reference, namely: Andrew Otutu Obaseki, J.S.C. (presided and read the lead judgment), Augustine Nnamani, J.S.C.; Adolphus Godwin Karibi-Whyte, J.S.C.; Saidu Kawu, J.S.C.; Chukwudifu Akunne Oputa, J.S.C.
In its judgment, the Supreme Court stated at page 73 paragraphs E-F of the report that “The desire of the respondent to make available to her the same educational opportunities as the two brothers are enjoying in England, laudable as it is, cannot be a ground for denying the appellant custody of Kafilat. The rebuff the respondent has suffered from the hands of the appellant in his effort to contribute his quota to the welfare of Kafilat is however a ground for granting split or joint custody. A child is entitled to enjoy the best care and attention the parents can offer. Provided that a parent is in a position and willing to provide them, the child should not be denied them by the actions of either parent.”
In granting joint custody, at page 77, paragraph B-C of the law report, the Supreme Court held that: “With respect to the learned Justice of the Court of Appeal, I would say that the absence of any evidence of her character made it impossible to judge her character. I would also go further to say that the absence of any evidence impugning her conduct in the exercise of care, control and supervision of the child made it impossible to damnify and condemn the appellant. The evidence led does not, in the least, amount to an indictment. On one view, it amounts to a commendation and a mother’s concern for the welfare of her child…… In the circumstances, an order for joint custody with care and control to the appellant and responsibility for education to the respondent will be most appropriate. It will meet the justice of the case and take care of the welfare of the child.”
The Lessons for Couples Who Have Child Custody Dispute
There are several legal points and lessons that are deducible from the Williams v. Williams. However, the following lessons are very fundamental and noteworthy for anyone that is currently or potentially entangled in a child custody dispute in Nigeria:
1. Paramountcy of the child’s welfare overrides the superiority of the claims of either parent: This means that, in any proceedings before any court where the custody or upbringing of a minor is in question, the court shall regard the welfare of the minor as the first and paramount consideration and shall not take into consideration whether the claim of the father in respect of such custody is superior to that of the mother or vice versa. What amounts to the good welfare of a child is a question of facts and evidence presented by the spouses, over which the judge has absolute discretion. In the case of Re W (an infant) (1963) 2 All ER 706 at 711, Pennycuick, J. commented and the Supreme Court in Williams v. Williams (per Obaseki, JSC) agreed with him at page 79, paras. D-E that: “………..it is in the interest of the infant that the father should have a practical and effective interests in its education.” Please note that any piece of evidence of a child’s poor academic performance, malnutrition or ill-health of the child is relevant to determine if the child is receiving good care and welfare treatment. Foreign education may be desirable but the fact that one parent decides not to or cannot sponsor a child for foreign education does not mean the child is suffering unduly in Nigeria because he or she has not as yet been given the benefit of the sophisticated education which her siblings or peers are receiving abroad. The other siblings or peers could be more comfortable in their environment in the foreign country but the Williams v. Williams is an authority to the effect that great comfort is not the criterion for measuring the welfare of a child. It has also been held by the court that if a parent could provide a home and the necessities of life to a child, he or she should not be deprived of custody unless he or she is guilty of misconduct. See In Re O’Hara (1900) 2 I.R.
2. Equal right of both parents: In regard to the custody or upbringing of a child, a mother shall have the same rights and authority as the law allows to a father and those rights and authority shall be equal and exercisable by either without the other. The fact that the mother has custody would not prevent the father from making plans for the infant’s education; and where the custody of the infant is given to one parent, it is always open to the other parent to make a further application to the court for access right. If one parent has legal custody and the other care and control, and they are unable to agree, a further application by one or other to the court is probably inevitable in any case.
3. Conduct of the Parents: The welfare of the child, though the first and paramount consideration, is not the sole consideration and the conduct of the parties is a matter to be taken into account. See Re L (infants) (1962) 3 All ER 1. In Williams v. Williams, where the appellant has had custody of the girl child since her tender age and the respondent/appellant (mother) had not shown that the child was unduly suffering, the trial held and the Supreme Court affirmed the decision at page 78 at paragraph C-D, that “The fact that she (the child) had been in the custody of the appellant (the mother) since 1975 tilted the scale substantially in favour of the appellant. The absence of any evidence of plans and proposal for her future education is definitely against her while the evidence given by the respondent of his plans and proposal for her education is in his favour. In the circumstances, an order for joint custody with care and control to the appellant and responsibility for education to the respondent will be most appropriate. It will meet the justice of the case and take care of the welfare of the child”.
4. Adultery, Smoking, Doing Drugs or Other Misconduct of a Parent is not a Ground for Denying Custody or Access: The adultery of a party is not necessarily a reason for depriving the adulterous party of custody unless the circumstances of the adultery make it desirable to deny him or her thee child custody in order to protect the child from exposure to prostitution, promiscuity or other social vices. The case of Allen v. Allen (1948) 2 All ER 413 – a decision of the English Court of Appeal – is very relevant on the point. After a decree of divorce had been granted to a husband on the ground of his wife’s adultery with the co-respondent, an order was made granting to the husband the custody, care and control of the daughter of the marriage (aged 8 years) who, until then had been in the care and under the control of the mother. Since the decree absolute, the mother had married the co-respondent. The trial Judge, in deciding to make the custody order, regarded the moral welfare of the child as of paramount importance and took the view that the wife, having once committed adultery, was likely to do so again, and that as the husband was re-married to a wife against whose moral character no charge could be made, he was more fit to have the care of the child. The trial judge noted that there was little to choose between the accommodation offered by the parties, but it was undisputed that the child was happy with her mother and making good progress at school and there was medical evidence to the effect that the child’s health would suffer if she were separated from her mother.
On appeal by the wife against the custody order, the English Court of Appeal, in reversing the custody order, held that the Judge had not applied the proper test and that the welfare of the child both moral and physical, being the paramount consideration, and therefore the appeal must be allowed. In his judgment, Wrottesly, L.J. said at page 414: “The welfare of the child, both moral and physical was the paramount consideration. It was impossible to say because a woman had once committed adultery, she was not a fit person vis-a-vis one who had not to look after a child. There was no suggestion that the mother was promiscuous or a bad mother or a bad housekeeper, or anything which made it undesirable for her to look after the child. All the evidence in the case is strongly in favour of leaving the child with her.”
Evershed L.J., (as he then was) also commented, in concurrence, as follows:
“This court is always loath to interfere with the discretion of a learned judge but I agree that here we are compelled to do so. The learned Judge seems to have read the word “moral” into S. l of the Guardianship of Infants Act, 1925 before “welfare”. Further, he has inferred that a woman who has committed adultery will always repeat it. Both suppositions are wrong. It would not be right to snatch this female child of eight from her mother and force her to make a new start with her father and step mother. The court has sympathy with the father who has been gravely wronged and if he wants access to the child, not only on odd days, but for a substantial period during the holidays, he is entitled to have it.”
5. Brotherhood and Sisterhood with other Siblings is a Consideration: The fact and advantages of brotherhood and sisterhood must also be considered when there is more than one child of the family and the court is more inclined to give custody of one child to one person and another to a different person. See Wakeham v. Wake ham (1954) 1 All ER 434 CA at 435.
6. Age of the Child is not a Factor for Determining Custody: There is no settled rule that a child of tender years should remain in the custody of the mother instead of the father. See Re B. (an infant) (1962) 2 All ER 872; W. v. W and C (1968) 3 All ER 408. However, the personal care and supervision that a mother who is not out at work can give to little children is an important factor, which obviously will be far greater than the care and supervision of a busy career woman. See In Re O. (infants) (1971) Ch. 748; (1971) 2 All ER 744 CA at 746, 752.
In Allen v. Allen (1948) 2 All ER 413, Evershe L.J. held that “It would not be right to snatch this female child of eight from her mother and force her to make a new start with her father and step mother.”
However, in W v. W and C (1968) 3 All E.R. 408, the Court of Appeal in England held that it was right for the Court to be guided by the general principle that a boy of eight (8) years old was on the whole, other things being equal, better off with his father.
So, judicial decisions are not settled on the use of age as a basis for determining who should have custody but the facts and evidence of each case would guide the presiding judge in doing justice in each case.
7. Child Custody or Access Order is not to punish a parent: Please note that an order of custody is not a penal order on either parent and should not be construed as such. It imposes a responsibility not to be lightly taken. In dealing with the questions of custody or access right, the court will have regard to the particular circumstances of each case always bearing in mind that the benefit and interest of the child is the paramount consideration and not the punishment of a spouse for misconduct. See B. v. B. (1924) p.176.
8. Joint Custody is Appropriate where Evidence Shows Equal Capacity and Care from Both Parents or Other Deserving Circumstances: Please note that the court can award legal custody to one parent while care and control is granted to another but the wishes of an unimpeachable parent stand first. See Williams v. Williams, relying on Re Thain, Thain v. Taylor (1926) Ch. 676 which was approved by the English Court in Mckee v. Mckee (1951) AC 352,366; (1951) 1 All ER 942, 949 PC.
However, where evidence before the court shows that both parents have financial capacity and they have equal care and plans for the future of the child, the court will most likely grant joint or split custody to both parents. Take for example, which does frequently arise, parents may be of different religious belief and there is nothing wrong whatsoever to prevent care and control and charge of religious upbringing being committed to one parent and all the other constituents of custody vested in the other. Please note that this is a question of a judge’s discretion in each case.
In the Williams v. Williams case, for instance, there was nothing before the court to disqualify either of the parties from being entitled to an order for the custody of Kafilat Abimbola. It appeared from the facts on record that she was already schooling in England (at the time of the appeal), just like her two brothers who were in the custody of the respondent (the father). The Supreme Court observed that it must be that the appellant (the mother) eventually decided to make available to her the same opportunity for sophisticated western education as the respondent (the father) has made available to her two brothers. In view of the facts of the case, the Supreme Court granted split or joint custody despite the fact that only the respondent gave evidence during the trial proceedings whilst the appellant was absent for no known reason.
It has also been said, as observed in Jussa v. Jussa (1972) 2 All ER 600, that a joint order of custody (with care and control to one parent) should only be made where there is a reasonable prospect that the parties will co-operate. Really, the judge can only hope that the parents will co-operate for the good of the child. Where a party refuses to cooperate, the aggrieved party can, of course, apply for the appropriate injunctive orders.
9. Custody of a Child can be granted to the Relation of a Parent: It is reasonable to say that the best arrangement for the welfare of any child is that he or she should be with his or her parents. However, there is necessarily no law that says a mother has a paramount claim as against the father’s relations, at any rate where the father is alive and support the application of those relations. See In Re A, an infant (1959) C.L.Y. 950 (1959) Times March 25th C.A. In deserving cases, a father’s relations can apply and obtain custody order of a child notwithstanding the mother’s objection.
Conclusion
Child custody dispute is contested on facts and the judge’s decision is largely discretionary, based on primacy of facts. All the circumstances must be considered. See Re L (infants) (1962) 3 All ER 1. The interest of the child can only be determined by the court after hearing the relevant facts, relationships, claims and wishes of parents, risks, choices, other circumstances and weighing them. (See Rayden on Divorce 13th Edition Vol. 1 pp. 1035 and flq.).
In H v. H and C (1969) 1 All E.R. 262, it was stressed that issues such as the custody and care and control of a child cannot be determined by the court without hearing the oral evidence of the parties and their witnesses since the character and appearance of the respective parents is very often a decisive matter.
Consequently, material facts and evidence from both parents must be forthcoming for a proper consideration of all these issues mentioned above. Evidence of both parents is imperative. Indeed, such is the importance of the evidence of both parents that by Divorce Rule 92(4)(a) (which admittedly is not part of the law of Nigeria) neither a father nor the mother is entitled to be heard for or against any application for custody, care and control or access unless he or she is available at the hearing to give oral evidence or the Judge directs otherwise.
The reason the trial judge gave custody to the mother in Williams v. Williams, despite the mother’s absence during trial was because the evidence of the father did not indict the mother. In fact, the evidence showed that the mother made adequate support arrangement for the child whilst she was busy at work as Chief Magistrate.
