DESMOND IWUAGWU UGOJI v CHRISIAN OKEKE & 1other (M/190/64) [1964] NGHC 37 (7 December 1964)

**DESM****O****N****D** **IWU****A****GW****U** **UGO****J****I** **(****APP****L****ICA****N****T****)** **_v_.** **1.** **CHRISI****A****N** **OKEK****E** **2.** **AG****N****E****S** **U****GO****J****I** **(****R****ES****P****O****N****DE****N****T****S****)** **(1964)** **All** **N.L.R.** **572** **Div****i****si****o****n:** High Court, Lagos **D****at****e** **o****f** **Judgment:** 7th December, 1964 **C****as****e** **Num****b****er:** M/190/64 **Before:** Taylor, C.J. Application to the High Court seeking an order for the custody of children of a marriage contracted under Native Law and Custom. The applicant and the second respondent are lawfully married under the customary law of Owerri in Eastern Nigeria; the second respondent left the matrimonial home with three children of the marriage and is living in adultery with the first respondent; the parties are all resident in Lagos; in order to circumvent the longer process of issuing summons in the Native Court and serving the respondents, the applicant brought the application under Order 52, rule 2 of the High Court (Civil Procedure) Rules; the question is whether the court can or will make the order Nisi or Absolute in an application for custody of children of a marriage under Native Law and Custom. **_HELD_**** _:_** It is common knowledge that questions of dissolutions of marriages performed in accordance with Native Law and Custom as well as the custody of the children to such marriages are and can be dealt with in the Native Courts of the District where such marriage was performed. It may be more expeditious to apply to this Court for a writ of Habeas Corpus and thereby circumvent the possibly longer process of issuing summons in the Native Court and serving the respondent, but that is no reason why this application should be granted since the applicant has a remedy in the Native Court. _C_ _a_ _s_ _e_ _s_ _re_ _f_ _e_ _r_ _r_ _e_ _d_ _t_ _o_ _:__-_ _R_ _e_ _C_ _a_ _rr_ _o_ _l_ _l_ (1931) 1 K.B. 317 _Nich_ _o_ _la_ _s_ _I_ _g_ _w_ _e_ _v_ _._ _R_ _a_ _phae_ _l_ _Anya_ _s_ _ado_ _r_ _a_ _n_ _d_ _an_ _o_ _the_ _r_ M/148/61 _Re_ _x_ _v_ _._ _Mo_ _r_ _n_ _Hi_ _l_ _l_ _C_ _a_ _m_ _p_ _C_ _o_ _mm_ _a_ _ndi_ _n_ _g_ _Of_ _f_ _ic_ _e_ _r_ (1917) 1 K.B. 176 _Whyt_ _e_ , for the Applicant. Taylor, C.J. of Lagos:-This is an application by the applicant moving _ex_ _parte_ under Order 52, rule 2 of the Rules of Court which states generally that:- "Subject to particular rules, the court may in all causes and matters make any order which it considers necessary for doing justice, whether such order has been expressly asked for by the person entitled to the benefit of the order or not." The applicant deposes in his affidavit and further affidavit that he was lawfully married to the 2nd respondent under Owerri District Native Law and Custom in November, 1958, and that by such custom he is entitled to the custody of his children with the 2nd respondent who has left the applicant and is living with the 1st respondent as the latter's mistress. At the hearing, Mr Whyte drew my attention to Order 59, rule 14 of the _Rules_ _o_ _f_ _Th_ _e_ _Sup_ _reme_ _Cour_ _t_ _i_ _n_ _En_ _gland_ and to the case of _Re_ _Carr_ _oll_ (1931) 1 KB 317 and the Nigerian case of _Nicholas_ _Igwe_ _v._ _Raphael_ _Anyasador_ _and_ _another_ M/148/61. _In_ _Re_ _Carroll_ is of no assistance as it deals with the case of an illegitimate child and the rights of the mother as against an adoption society. _Nich_ _o_ _la_ _s_ _I_ _g_ _w_ _e_ _v_ _._ _R_ _a_ _phae_ _l_ _Anya_ _s_ _ado_ _r_ _a_ _n_ _d_ _an_ _o_ _the_ _r_ is also of little assistance for the trial Judge held the view that the application would seem to require him "to adjudicate on conflicting allegations of paternity." The order made by the court was as follows:- "No unlawful detention has been proved and so this application must be dismissed." I have been unable to find any case in point on "all fours" with the present. The point at issue here is whether the court can or will make the order NISI (sought at this stage) in an application for custody of children of marriage under Native Law and Custom brought by one spouse against the other spouse who has left the matrimonial home and is living in adultery with a man. In these matters one would also have to consider whether a Court would make an Order NISI or Absolute in an application which seeks eventually to deprive a mother of the custody of three children of tender years whose ages are four and a half years, two years and eight months. Finally the court has to consider whether another remedy does not avail the applicant. I asked Mr Whyte whether such a remedy did not avail his client, in the court's administering Native Law and Custom in Owerri and his reply was-"that may be so", but the applicant and the parties are in Lagos. The learned author of Halsbury's _Laws_ _of_ _England_ the 3rd Edition Vol. II at 26, paragraph 43 says this:- "The writ of Habeas Corpus ad Subjiciendum unlike the other Writs of Habeas Corpus, is a prerogative Writ, that is to say, it is an extraordinary remedy, which is issued upon cause shown in cases where the ordinary legal remedies are inapplicable or inadequate. Though it is a writ of right it is not a writ of course, and therefore may be refused where there is an alternative remedy available by which the validity of the detention can be questioned." It is common knowledge that questions of dissolutions of marriages performed in accordance with Native Law and Custom as well as the custody of the children to such marriages are and can be adequately dealt with in the Native Courts of the District where such marriage was performed. It may be more expeditious to apply to this Court for a writ of Habeas Corpus (if it lies in such a case, on which point I express no opinion) and thereby circumvent the possibly longer process of issuing summons in the Native Court and serving the respondent, but that is no reason why this application should be granted as Darling J. said in _Rex_ _v._ _Morn_ _Hill_ _Camp_ _Commanding_ _Officer_ (1917) 1 K.B. 176. He has a remedy in the Native Court, let him pursue it. For that reason alone I refuse to make the order NISI and dismiss the application.