CORAM

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PARTIES

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DONAL TERSER KPILAH APPELLANTS

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DORCAS OGBONNAIYA JOHN NGWU RESPONDENTS

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AREA(S) OF LAW

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SUMMARY OF FACTS

The Appellant and the Respondent were married under the Marriage Act and had six (6) children in the marriage. The Appellant petitioned for dissolution of the marriage between himself and the Respondent and same was dissolved by an order of decree nisi and custody of the six (6) children was given to the Respondent. About three (3) months later, the Respondent, vide Motion on Notice brought pursuant to Order XIV (1), (2), (3) and (4) of the Matrimonial Causes Rule, 2004 Laws of the Federation and Section 70 (4) of the Matrimonial Causes Act Cap 220 Laws of the Federation of Nigeria at the Court below, applied for ancillary relief of maintenance, on the ground that the relief was omitted in the main relief as a result of the inadvertence of Counsel. That, since their marriage was dissolved, and the custody of the children given to her, a permanent place of abode was necessary, there was need for the Appellant to start her up in business with one of his shops as the issue of the children’s welfare and wellbeing became solely her responsibility. The Respondent sought for leave to bring the application; payment of the sum of N700, 000 monthly for the maintenance, education, medical needs and clothing of herself and the six children for the next 10 years through the Registry of the Court and the release of one of his shops in post office Area for the Respondent and his house at Gboko for the use of the children. In response, the Appellant filed a counter-affidavit wherein he averred that the procedure adopted by the Respondent was wrong as there was no appeal against the judgment in respect of the Appellants petition as well as the Respondents in Suit No. BOHC/MC/CV/46/15 which was dismissed, therefore, the Respondents application should be refused. The Court, found in favour of the Respondent and awarded a lump sum monthly maintenance of Three Hundred and Fifty Thousand (350, 000. 00) Naira only for the Respondent and the six (6) Children. Aggrieved, the Appellant appealed against the decision vide a Notice of Petition with two Grounds of Appeal. The Respondents alongside her brief of argument, filed a preliminary objection as to the competence of this appeal on the ground that same was filed without leave of Court in violation of the provisions of Sections 241 (2) C and 242 (1) of the Constitution of the Federal Republic of Nigeria as amended.

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HELD

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Appeal Dismissed

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ISSUES

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Whether or not the Court below was right in the award of a lump sum of N350, 000. 00 monthly as maintenance allowance for the Respondent and the children between her and the Appellant.

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RATIONES DECIDENDI

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INTERLOCUTORY APPEAL – MEANING OF AN INTERLOCUTORY APPEAL

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“Simply put, an interlocutory appeal is an appeal against an interlocutory order. In other words, it is an appeal against an order or decision of the Court which is not the final and there are still issues yet unresolved in the matter. Therefore, as prescribed in afore stated Constitutional provision, Section 241 (1), an interlocutory appeal, because, it is not one against the final decision of the Court, is by leave, save, where it is on grounds of law alone. See the cases of Kraus Thompson Organisation Ltd. V. University Of Calabar (2004) ALL FWLR (PT. 209) 1148 and Irene Harriman V. Chief Hope Harriman (1987) 6 SC 454. –

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RIGHT OF APPEAL – CONDITION PRECEDENT TO EXERCISING A RIGHT OF APPEAL WHOSE GROUNDS IS NOT ON LAW ALONE

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“Once the appeal is not on law alone, the Appellant has to seek and obtain leave of the trial or appellate Court before he can file a valid or competent notice of appeal, otherwise, such an appeal would be seen as incompetent and liable to be struck out. See the case of Olosunde & Ors V. Chief Eyialegan & Ors (2005) ALL FWLR (PT. 242) 503 CA. Consequently, where the Constitution or a Statute has not donated a right of appeal, there can be no such right of appeal since there is nothing like inherent jurisdiction in respect of appeals. In other words, appeal must be provided by Statute. See the cases of Chief Mrs Ehuwa V. Ondo State Independent Electoral Commission & Ors (2006) 11-12 SC 102 and Mekwunye V. Director Of Audit (W.N) (1967) NSCC 223. –

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‘DECISION’ – DEFINITION OF ‘DECISION’ -WHEN IS A DECISION OF COURT FINAL?

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“The apex Court stated as follows in the case of Tomtec Nigeria Ltd. V. FHA (2009) LPELR-3256 SC per Walter Samuel Nkanu Onnoghen, J.S.C P. 15, paras. D-E:
“Section 318 of the 1999 Constitution defines “decision” as follows: “decision” means, in relation to a Court, any determination of that Court and includes judgment, act, order, conviction, sentence or recommendation.”
When then is a decision said to be final.
There is no clear definition or interpretation of interlocutory or final decision apart from the above provision of Section 318 of the Constitution. The Courts have assisted by giving interpretation in respect of the Section. See the case of Chief Nwankwo Alor & Anor. V. Christopher Ngore (2007) 17 NWLR (PT. 1062) 163 where it was stated thus:
A judicial decision is deemed to be final, when it leaves nothing to be judicially determined or ascertained thereafter, in order to render it effective and capable of execution, and is absolute, complete and certain and when it is not lawfully subject to subsequent decision, review or modification by the tribunal which pronounced.”
See the case of Samuel Fadiora & Anor In Resamuel Fadiora V. Festus Gbadebo & Anor (1978) LPELR-1224 SC (1978) ALL NLR 42. Further by the Courts, to decipher whether or not a decision is final or interlocutory, the test is to look at the order made therein and not the nature of the proceedings. See the case of Blay & Ors V. Solomon (1947) 12 WACA 175. The apex Court revisited the question whether a decision is final or interlocutory in the case of W.A. Omonuwa V. N. Oshodin & Ors (1985) 2 SC and the following position followed:
i. A decision between parties can only be regarded as final when the determination of the Court disposes of the rights of the parties and not merely an issue.
ii. Where only an issue is the subject matter of an order or appeal, the determination of that Court which is a final decision on the issue or issues before it which does not finally determine the rights of the parties is interlocutory.
See further the case of Western Steel Workers Ltd. V. Iron & Steel Workers Union (1986) NWLR (PT. 30) 617. –

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GROUND OF APPEAL – STATUS OF A GROUND OF APPEAL WHERE NO ISSUE IS DISTILLED

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“One finds as correct that, Ground 2 was abandoned as there was no issue distilled from or predicated upon it. The law is that, where this is the case, such Ground is seen as incompetent and liable to be discountenanced. See the cases of Mr. Adeogun V. Dr. A. Olukayode Akinyemi (2013) LPELR-20659 CA, Oceanic Bnt Int. Ltd. V. Chitex Ind. Ltd. (2001) FWLR (PT 4) 678, Dada V. Dosunmu (2006) 18 NWLR (PT. 1010) 134 and Idika V. Erisi (1988) 2 NWLR (PT. 78) 563”. –

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ORDER OF MAINTENANCE – WHETHER AN ORDER OF MAINTENANCE CAN BE BROUGHT IN A SEPARATE APPLICATION

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“Section 70 (1) and (2) of the Matrimonial Causes Act permits that an independent/separate application for the order of maintenance may be brought without there being proceedings for the other reliefs under the Act or necessarily within the petition itself. See also Matrimonial Causes In Nigeria Law And Practice by the learned Author, Nasiru Tijani and Maintenance Sixteen Years After Matrimonial Causes Act In (1987 & 1988) VOLUMES 8 & 9 J.P.P.L.21-

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ORDER OF MAINTENANCE – FACTORS TO BE TAKEN INTO CONSIDERATION IN THE GRANT OF AN APPLICATION FOR ANCILLARY RELIEF OF MAINTENANCE

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“From the above provisions, the Court is expected in determining an application for an ancillary relief of maintenance such as the Respondents to consider
i. The means,
ii. Earning capacity and
iii. Conduct of all the parties to the marriage
iv. and all other relevant circumstances.
It is pertinent at this stage to state that, the ancillary reliefs sought vide the Respondents application involved the discretion of the Court, which discretion must be judicially and judiciously exercised. See Section 73 of the Matrimonial Causes Act and the various orders prescribed therein, lump sum, periodic, secured maintenance and any order in pursuit of doing justice between the parties to be made in appropriate cases by the discretion of the Court. Clearly from the foregoing, what is conferred on a Judge/Court in an application of the instant is discretion, lagalis discretio, meaning justice according to prescribed rules of law. The law is firm and settled that once it is clear that the trial Court exercised its discretion bona fide, judicially, not arbitrarily or illegally, by taking into account the facts and circumstances presented to it before drawing its conclusion and applying the law and nothing else, the appellate Court will not ordinarily interfere. See the cases of James Ntukidem V. Chief Asuquo Oko (1986) 5 NWLR (PT. 45) 909, Atanda V. Olanrewaju (1988) 4 NWLR (PT. 394), Okon Ebe V. COP (2008) 1 SC (PT II) 222, Unilag V. Olaniyan (1985) 1 SC 295, Saffeiedine V. COP (1965) 1 ANLR 54 and Solanke V. Ajibola (1968) 1 ANLR 46. –

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ORDER OF MAINTENANCE – FACTORS TO BE TAKEN INTO CONSIDERATION IN THE AWARD OF AN ORDER OF MAINTENANCE

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“This Court, in the case of Ibeabuchi V. Ibeabuchi unreported, Appeal NO. FCA/E/5/82 OF 22//9/82 held that, before an order for a lump sum under Section 73 (1) (a) of the Matrimonial Causes Act is made, consideration must be given to the parties income, earning capacity, property and financial resources, financial needs and responsibilities, standard of life before the dissolution of the marriage, their respective ages and the length of time they were together as husband and wife as the factors cannot be assumed or presumed or taken for granted. That, there must be evidence which will enable the Court to arrive at a just decision. When it found that there was no such evidence before the Court below, it set the judgment aside. In the case of Negbenebor V. Negbenebor (1971) 1 ALL NLR 210, the apex Court held that, the husbands income was his salary and distinct from his assets. It held the same Position In The Case Of Olu-Ibukun V. Olu-Ibukun 1974 1 ALLNLR (PT. 1) 513. In Oluwa V. Oluwa (1980) 7-9 CCHCJ 239, the Court found the Petitioner husband stable on the basis of the three cars and assets in England and Nigeria and awarded maintenance to the wife. Earning capacity has been judged not based on what the spouse earns currently but the potential earning capacity. See the learned author, E. I. NWOGUGU P. 242. The age, health, skills and responsibilities of the couple are considered for their earning capacity. The Court held that, the best years of a woman’s life were over after thirty-seven years in marriage and being sixty-one years old herself and so ordered a more generous provision for the Respondent/wife as there was no more earning capacity in the view of the Court. See the case of Ajayi-Ajagbe V. Ajayi-Ajagbe (1978) CCHCJ 193. Where the applicant for maintenance is the party at fault, the size of maintenance and whether it would be awarded at all depends on the gravity of the partys misconduct. In the case of Onyia V. Onyia (1985) Monthly Court Reports Of Nigeria MCRN (PT. 11) 15, the Court refused to award maintenance to the wife who worked out ofthe marriage in spite of letters and request for reconciliation by the husband. See also the position of this Court in the case of Nakanda V. Nakanda unreported Appeal CA/L/99/81 of 17/6/88. The Court also gives consideration to the condition for award referred to as all other relevant circumstances. This allows the Court to give consideration to peculiar culture and way of life. See Matrimonial Causes In Nigeria Law And Practice by the learned Author, Nasiru Tijani. From a careful and thorough reading of the said Decision/Ruling of the Court, one states as follows: The Court rightly found that by Order XIV (c) of the Matrimonial Causes Act, 1983, application for ancillary relief of maintenance can be brought with leave of Court. It was correct to find that the Respondent and the children of the marriage were entitled to maintenance. See the cases of Ibeabuchi V. Ibeabuchi unreported Appeal supra, Negbenebor V. Negbenebor supra, Olu-Ibukun V. Olu-Ibukun supra and Oluwa V. Oluwa supra. Further, the Court rightly stated the position of the law that, Courts in proceedings for maintenance of children should not be hamstrung and that it is the best interest of the children that should be paramount consideration. –

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CASES CITED

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Not Available

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STATUTES REFERRED TO

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Constitution of the Federal Republic of Nigeria, 1999 (as amended)|Matrimonial Causes Act Cap 220 Laws of the Federation of Nigeria|Matrimonial Causes Rule, 2004, Laws of the Federation|

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