CORAM
ADEMOLA, CHIEF JUSTICE, NIGERIA
UDOMA, JUSTICE, SUPREME COURT
SOWEMIMO, JUSTICE, SUPREME COURT
PARTIES
ABIODUN ADENIKE ODUSOTE APPELLANTS
RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The respondent filed a petition of divorce for the dissolution of his marriage with the appellant. The appellant duly filed her answer to the petition but later withdrew it, deciding not to contest the petition. The court then proceeded and granted the respondent a decree nisi of divorce. An order for the custody of the children of the marriage was also made in favour of the respondent.
HELD
The Court set aside the order of the Court of Appeal dismissing the appeal brought by the appellant against the order of custody of the children granted the respondent by the trial judge. It ordered that the appeal be re-entered for hearing by the Western State Court of Appeal.
ISSUES
Whether the learned judges of appeal were in error in law in exercising their discretion under Order 7, rule 21 injudiciously in dismissing the appeal summarily in the circumstances.
RATIONES DECIDENDI
EXERCISE OF DISCRETION.
I quite agree the Court of Appeal ought to be very slow indeed to interfere with the discretion of the learned judge on such a question as an adjournment of a trial, and it very seldom does so; but, on the other hand, if it appears that the result of the order made below is to defeat the rights of the parties altogether, and to do that which the Court of Appeal is satisfied would be an injustice to one or other of the parties, then the Court has power to review such an order, and it is, to my mind, its duty to do so. Per Udoma, JSC
GRANTING OF ADJOURNMENT BY THE COURT
The question of adjournment is a matter in the discretion of the court concerned and must depend on the facts and circumstances of each case. For, in matters of discretion, no one case can be authority for another; and “the court cannot be bound by a previous decision to exercise its discretion in a particular way, because that would be in effect putting an end to the discretion”. Per Udoma, JSC
EXERCISE OF DISCRETION.
It is a well-established principle of law that all judicial discretions must be exercised according to common sense and according to justice, and, if there is any miscarriage of justice in the exercise of such discretion, it is within the competence of a court of appeal to have it reviewed. Per Udoma, JSC
CASES CITED
Evans v. Bartlam (1937) A.C. 473
Jenkins v. Bushby (1891) 1 Ch. 484 at p. 495.
STATUTES REFERRED TO
Rules of the Court as applicable to the Western State Court of Appeal