Unchallenged evidence is deemed admitted -Court

When the case came up on the 6th day of June, 2013 counsel to the petitioner EGET NATHANIEL informed the court that it seem the respondent is evading service, that is also corroborated by affidavit of non-service deposed to by one Emeka Nwankwo an officer of this court that he went to effect service on […]

When the case came up on the 6th day of June, 2013 counsel to the petitioner EGET NATHANIEL informed the court that it seem the respondent is evading service, that is also corroborated by affidavit of non-service deposed to by one Emeka Nwankwo an officer of this court that he went to effect service on 16th May, 28th May and 3rd June 2013 but unable to serve the respondent of Block B Flat 8 Charlotte Street, Karu site.  Therefore Eget Nathaniel applied for substituted service pursuant to OR5 rule 1 OR3 rules 5(a)-d and OR13 of the FCT Customary Court (civil procedure) rules 2007 which was granted on the 12th June, 2013.  The respondent never showed up in court despite all the various court services made on him through substituted means.  On 3rd July, 2013 the matter was set down for definite hearing at the next adjourned date based on the application of petitioner’s counsel based on OR8 rule 3(1) of the FCT Customary court (civil procedure rules) 2007.
The evidence of PW1 started on the 10th of July, 2013, the counsel applied to the court for an adjournment to enable him put his house in order.  At the next sitting the petitioner’s counsel informed the court that he has filed a witness statement on oath dated 19th July, 2013.  The court ordered that the witness statement on oath be served the respondent though substituted means which was complied with based on service endorsement signed by Emeka Nwankwo an officer of this court.
EVIDENCE OF PW1
The oral evidence and clarifications on the witness statements on oath of the petitioner (PW1) are all recorded in pages 109, 110,150, 151, 152 and 153 of the civil course record book of this court.  The PW1 swore to the Holy Bible, that her name is Zainab Aliyu Umar, she lives in Abuja and she is a teacher.  That the respondent is her husband and they got married on the 10th of May, 2008 and did their church blessing same day of EYN church Utako same day.  The certificate of EYN church number 001278 between the petitioner and respondent dated 10th May, 2008 admitted in evidence.  That she is in court to get a divorce from her husband and also have custody of the only child of the marriage born on 29th March, 2009.  She confirmed that she filed a witness statement on oath dated 19th July, 2013 and rely on all the averment there.  She stated that the sum of N20,000.00 was paid as her bride price under the Potiskum native law and custom.  She tendered original receipts of payment of Angelic Care Hospital No. 12435, 16665, 30338, Abuja Clinics receipt No. 593581, 594045, 612421, 612418, 628950, 164642, 163187, 169710 and that of Royal Family Academy receipts No. 26008, 20327, 54965, 41644 and Bill number 1062, 4963 were all admitted as exhibit EYN 2(a-v) to show to the court that she has been solely responsible for the upkeep and maintenance of their child.  The letter of divorce from the respondent to the petitioner was tendered and admitted as EYN3; she also told the court she will be able to take care of only child if granted custody by tendering her letter of employment admitted as EYN4.
There was no cross-examination and re-examination of PW1.
 Having analysed the oral evidence and witness statement on oath of the petitioner (PW1) which was not challenged by the respondent who never appeared in court, the court raises the following issues for determination.
1.        If the court can give judgment without the appearance of the defendant
2.        If documents tendered by the petitioner is enough ground to award custody.
3.        Who is to have custody of a child at tender age and what the court is to consider.
On the first issue raised by the court, the FCT Customary Court (civil procedure) rules 2007 at OR 8 rule 3(1) states “when a civil cause is called on for hearing or  at any adjournment of such hearing, if the plaintiff appears, and the defendant does not appear, the court may, on due proof of service of the process and upon being satisfied that the time between the date of service and date of hearing was sufficient for the defendant to have appeared had he willed so to do, proceed to the hearing and determination of the cause on the part of the plaintiff only, and the judgment thereon shall be as valid as if both parties had appeared.”
There is due proof of service in this case on the respondent as all processes are all served through substituted means with affidavit of services deposed to by one Emeka Nwankwo an officer of this court based on the court ruling of 12th June, 2013 .
  ‘’That all court processes in respect on the respondent by pasting at Flat No. 8 Charlotte Street, Karu site, Opposite Noble Heights Academy Karu, FCT.”
 The court having satisfied the requirement of the rules of this court is convinced that judgment can be given despite the non-appearance of the respondent.  It should be noted that the respondent is referred; to as the defendant in the rules.
 The second issue raised by the court, the petitioner at pages 152, 153 of civil cause record book  tendered documents showing that she has been the one taking care their child from birth till date which were not challenged or objects to by anybody since the respondent never showed up in court.  The court can act on the documents tendered to grant custody to the party seeking or that based on the consideration of other factors in granting custody see Omotosho V the North Local Government (2010) all FWLR at page 25, Elelu-Habeeb V National Judicial Council, 2010 All FWLR at page 510, Nasir V Civil Service Commission, Kano State (2010) All FWLR at page 199.
  The third issue raised by the court about who is to have custody of a child at tender age and what court is to consider?  Custody is defined as the care, control and maintenance of a child awarded by a court to a responsible adult’’ see Black law dictionary 9th edition at page 441.  A child is a young human who is not yet an adult as defined at page 245 of the Oxford advanced learners dictionary, child as defined by Black law dictionary at page 271 as ‘’a person under the age of maturity’’.  From the forgoing the child of the marriage born on 29th March, 2009 is a child of tender age.  In considering the custody of the child the court will look at the paramount 18(2) of the FCT Customary court Act, 2007.  The court will look into the guardianship, welfare, advancement or education of the children of a marriage, the court shall regard the interests of the children as the paramount consideration, the court will consider the care of the child’s person morally, physically and mentally.  See nana V Nana (2006) NWLR page 13, Akinboni V Akinboni (2002) 5 NWLR page 568, Damulak V Damulak (2004) 8 NWLR at page 37 paragraph E, the court stated thus:
    “There is no immutable principle of law that custody of a child of tender age should be awarded to his mother in divorce proceedings.”
 Having analysed the above issues from the petition it is obvious that the marriage has broken down irretrievably due to the assault on the petitioner, lack of care and separation of both parties since 24th October, 2008 before the birth of their child.  See paragraph 6,9, 12 of the petition and paragraph 12, 15, 19, 21 of the witness statement on oath which are enough grounds to dissolve the marriage between the parties.  The court admitted exhibit EYN 3 which is the purported letter of divorce from the respondent to the petitioner dated 24th October, 2008 and made reference to at paragraph 18 of the witness statement on oath paragraph 11 of the petition has shown that the respondent is no longer interested in the marriage with the petitioner.
  The respondent from the oral and documentary evidence has been solely responsible for the upkeep of the only child of the marriage and by her letter of employment tendered and admitted as Exhibit EYN 4 clearly shows she has the means and ability to take care of the said child.
  It is therefore, the order of this court that:
1.        The marriage under the Potiskum native law and custom and blessed by EYN Church dated 10th May, 2008 between Zainab Aliyu Umar And Victor Silas Mshelia  is hereby dissolved
 2.        That the dowry price of N20, 000.00 paid by the respondent be paid to the treasury of government through this court
 3.        That the custody of the only child of the marriage is hereby given to the petitioner.
 4.        That the respondent is to be given unrestricted access to their daughter.  These are the orders of this honourable court.
 Any party not satisfied with the JUDGMENT of this court has a right of appeal, and can exercise same within 30 days of the date of this judgment to the customary Court of Appeal, Utako-Abuja.