ONWOCHEI ODOGWU VS OTEMEOKU ODOGWU

ONWOCHEI ODOGWU VS OTEMEOKU ODOGWU

(1992) LCN/2491(SC)

In the Supreme Court of Nigeria

Friday, February 28, 1992


Case Number: SC. 297/1991

 

JUSTICES:

ADOLPHUS GODWIN KARIBI-WHYTE JUSTICE, SUPREME COURT

SAIDU KAWU JUSTICE, SUPREME COURT

SALIHU MODIBBO ALFA BELGORE JUSTICE, SUPREME COURT

OLAJIDE OLATAWURA JUSTICE, SUPREME COURT

EPHRAIM OMOROSE IBUKUN AKPATA JUSTICE, SUPREME COURT

BETWEEN

APPELLANTS

ONWOCHEI ODOGWU

AND

RESPONDENTS

OTEMEOKU ODOGWU

RATIO

GRANT OF STAY OF EXECUTION

“The grant of stay of execution is entirely within the discretion of the court making the order. For an applicant to be entitled to the exercise of the discretion he must bring his conduct within the legitimate scope of the exercise of discretion. -See Leavis v. Leavis (1921) P.299. Hence, where he is in continuing disobedience of the Order of the Court, I do not conceive it legitimate to consider the exercise of discretion in his favour. The contumacious behaviour is more egregious and censorious where the Applicant seeks the discretion of the court to endorse such a behaviour. PER KARIBI-WHYTE, JSC

STAY OF EXECUTION: DISCRETION OF COURT

The Court guards its powers and image jealously. It should therefore be extremely wary in the manner it exposes such image, the diminution of its powers and the enforcement of its authority to public ridicule. In my respectful opinion as no court has an inherent jurisdiction to set aside the exercise of discretion of another except where such exercise has been capricious, or based on extraneous factors, and not following the accepted principles so will the valid exercise of discretion to stay execution not be interfered with.” PER KARIBI-WHYTE, JSC

KARIBI-WHYTE, J.S.C. (Delivering the Judgment of the Court): The application before us is seeking a stay of execution of a stay of execution. Onwochei Odogwu, the applicant is seeking an order for a stay of execution of the order made by the Court of Appeal, Lagos on the 20th June, 1991, pending the hearing and determination of the appeal lodged to the Supreme Court against the said Order. He is also asking for such other orders as this court may deem fit to make in the circumstances.   The nature of this application and the order to be made cannot be properly understood, unless and until the facts which have given rise to it are correctly stated. For this purpose the affidavit in support of this application dated 26th November, 1991, the affidavit of the Respondent in support of an application for accelerated hearing dated 4th December, 1991, counter affidavit of the Respondent in support of an application for a preliminary objection to the present application, dated 4th December, 1991, provide the necessary background to the consideration of the issues involved. Applicant and Respondent were up to the 17th December, 1990 husband and wife. On that fateful day Adeyinka J of the High Court of Lagos State pronounced a decree nisi of dissolution of their marriage consequent upon a petition filed by the husband alleging adultery on the part of the wife. The learned Judge granted to the husband, custody of the three children of the marriage, namely,

(1) Chibuzor Odogwu (male) (2) Ifenkili Odogwu (male) (3) Chukwunye Odogwu (female). The order was that these children who were at the time with their mother, the Respondent, were to be delivered up to the Applicant, forthwith, but not later than the 21st December, 1990. The Respondent did not comply with this Order.   The Respondent filed a notice of Appeal against the decision of Adeyinka J of the High Court of Lagos State. She also sought a stay of execution pending appeal. The application for stay of execution was refused on the 16th January, 1991. On the same day when the application for stay of execution was dismissed by the High Court, an application for stay of execution of the judgment of Adeyinka J was made to the Court of Appeal. On the 23rd April, 1991, this application was struck out for want of prosecution. Applicant deposed in his affidavit that he took away the children who he found in a ‘run-down’ taxi, to his house on the 23rd April, 1991, and they have since remained with him. Respondent filed another application for stay of execution dated 24th April, 1991 in the Court of Appeal. This application was heard and ruling delivered on the 20th June, 1991. The Court of Appeal in its ruling granted the stay of execution sought, and made the following Orders – that,   ‘the children should continue to remain in the custody of the Applicant, subject to the following conditions:-

(1) That the Respondent shall have access to the children between now and the determination of the appeal now pending in this Court. Denial of such access by the Applicant shall constitute a breach of the order.  (2) The Appellant/Applicant shall take steps to accelerate the hearing of this appeal so that the appeal shall be ready for hearing on or before the 31st December, 1991.  (3) That on failure of condition (2) above, the Respondent shall be at liberty to apply to this Court for the setting aside of the order herein made.  (4) If as alleged, the Respondent has forcibly obtained custody of the children, he shall return them to the Applicant within seven days from today.’ This order number 4 is significant. The Orders of the Court of Appeal were intended to stay execution of the judgment of the High Court granting custody to the husband, the Applicant in this case. At the time of the judgment of the High Court, the children were with their mother, the Respondent in this case. The effect of the Order of the Court of Appeal is that the children will remain in the custody of the Respondent pending the determination of the appeal against the judgment of the High Court. The Court of Appeal referred to the alleged forcible taking away of the children by the Applicant, and made an order that they should be returned to the Respondent within seven days. The order of the Court of Appeal granting stay of execution of the judgment of the High Court is that the children should continue in the custody of the Respondent till the determination of the appeal against that judgment.   Applicant was dissatisfied with the ruling of the Court of Appeal dated 20th June, 1991, a appealed to this Court. Applicant also applied on the 17th October, 1991 for a stay of execution pending the determination of the appeal against the stay of execution granted the Respondent by the Court of Appeal. The application was refused on the 21st November, 1991. Applicant has now brought this application.  I have already indicated that the 4th Order of the Court of Appeal is significant. The true significance could be deduced from the averments in the affidavits of the Applicant and Respondent. Applicant in paragraphs 25, 26, 27, 28 averred as follows:-  ’25. That after the Petitioners application was dismissed in my presence in Court on 23rd April, 1991, and I saw my said three children in a run-down taxi and knowing how unsafe this was in view of the recent crisis of child kidnappings, I offered them the opportunity of going home with me as requested by them.   26. That I was very happy to see the said children and all of them were very happy to see me and voluntarily left the taxi and came home with me. 29. That the children have since been with me and they are very happy, well fed and have adapted easily to the change of circumstance.  33. That the children have settled down well and are doing very fine with me and it will not be in their interest for them to be moved about again.’   I have highlighted these averments because of the admissions therein that applicant took the children on the 23rd April, and that on the 26th November, 1991 the children were still with him. This is in clear admission that applicant has not complied with the Order of the Court of Appeal of the 20th June, 1991 which gave him seven days within which to return them to the Respondent.   The Counter affidavit of the Respondent in opposition to this application dated 4th December, 1991, contains averments clearly contradicting the above averments. In refutation of the claim that Appellant was not aware of the pendency of the application for stay of execution by the Respondent, it was averred as follows:-

“4 That I verily believe that paragraph 8 is not true because my lawyer did serve upon lawyers to the Petitioner, both an advance and filed copy of my application dated 25th April, 1991. Attached herewith and marked Exh.A is a copy of proof of such receipt.  5. That paragraph 9 is false because since the High Court judgment, the Respondent has made two attempts to forcibly seize the children on their way back from school, the second of which was successfully done on Thursday 9th May, 1991.’   The correct factual situation is that the children are still with the Applicant. They were before their abduction by the Applicant on the 23rd April, 1991 on their way from school, living with their mother, the Respondent to this application. The judgment of the High Court granted custody to the Applicant. The Respondent who at the time was living with the children appealed against the judgment of the High Court. She applied to the High Court for stay of execution of the judgment and Order on Custody. Her application was refused. She applied to the Court of Appeal for a stay of execution. The Court of Appeal granted her application and stayed execution of the order. The legal situation is that the Respondent is entitled to the custody of the children pending the determination of the appeal against the judgment of the High Court.   But the Applicant who is still in violation of this Order, and keeping the children, wants the indulgence of this Court, in the grant of a stay of execution. In other words, the Applicant is by this application, and in his continuing contempt of the order of the Court of Appeal, seeking an order of ratification of his disobedience of the order of that Court.   The correct position of the litigation between the parties, now is that Respondent has pending before the Court of Appeal, an appeal against the judgment of Adeyinka J, dissolving the marriage of the parties and granting custody of the children of the marriage to the Applicant. There is also pending an appeal from the Court of Appeal, by the Applicant to this Court against the ruling of the Court of Appeal granting a stay of execution in respect of the custody of the children of the marriage to the Respondent, and the Order by the Court of Appeal on the Applicant to return the children to the Respondent within seven days of the making of the Order. There is finally before us this application seeking a stay of execution of the order of the Court of Appeal on the Applicant. The appeal to this Court by the Applicant emanates from the ruling of the Court of Appeal granting stay of execution of judgment of the High Court, and the order on Applicant to return the children to the Respondent. The order of stay of execution was made pending the determination of the appeal pending in the Court of Appeal. The appeal to this Court seems to me dependent on the decision of the appeal in the Court of Appeal, but anticipates the outcome of the decision of that Court in the appeal of the judgment of Adeyinka J. The prayer of the applicant in the application before us leaves no one in doubt that what is being sought is – ‘a stay of execution of the order made by the Court of Appeal, Lagos on the 20th day of June, 1991 pending the hearing and determination of the appeal lodged to the Supreme Court against the Order.’  This application is to be granted pending the determination of the appeal to this Court of the ruling by the Court of Appeal.   Accordingly, a decision of this Court on the Order is bound to determine the result of the Appeal to the Court of Appeal, and the orders made therein. For instance setting aside the stay of execution which is based on the exercise of discretion will undoubtedly affect the subject matter of the appeal of the Respondent to the Court of Appeal. This is because the right to custody of the children is a ground of appeal, and making any pronouncement on it will prejudice the hearing of the appeal.   Besides, there will therefore now in respect of the same subject matter, namely the custody of the children, be an appeal to the Court of Appeal by the Respondent, the substantive appeal and another to the Supreme Court by the Applicant. This is an interlocutory appeal. This is, in my view, an undesirable multiplicity of actions which our judicial system strongly deprecates. These are the considerations to be borne in mind in the determination of this application.   The crucial and critical issue therefore is whether this Court ought to exercise its discretion in favour of the applicant notwithstanding his continuing disobedience of the order of the Court of Appeal with respect to the subject-matter of this application. Very concisely stated the kernel of the issue is whether on the facts of this case this court should grant applicant stay of execution of the stay of execution granted the Respondent by the Court of Appeal. In my opinion the result will be, when the appeal is still pending, restoring to applicant to the position granted him by Adeyinka J, in his judgment dissolving the marriage of the parties and making his order as to the custody of the children of the marriage.   I shall now consider the application in this Court.  Before argument in this application, Chief Debo Akande SAN, sought to argue the preliminary objection he filed on the 2nd December, 1991 to the hearing of this application. The grounds for this objection were that

‘1. Refusal of the applicant to obey the order to deliver the children to the Respondent within 7 days of the ruling of the Court of Appeal dated 21st November, 1991.

2. The applicant is in contempt of the said ruling of 21st November, 1991.

3. The application is an abuse of the process of this Honourable Court.  4. The decisions of Ojukwu v. Lagos State Govt. (1986)1 NSCC Vol. 17 304 (1986) 3 NWLR (Pt.26) 2 39 and Hadkinson v. Hadkinson (1952)2 AER. 567 are against the decision.’ I overruled the objection and held that, since the applicant has a constitutional right to be heard, the application should be heard on its merit. The applicant was accordingly heard in support of the application. I will however in this judgment give fuller reasons why I overruled the preliminary objection.   In his submission Chief Debo-Akande SAN, argued that applicant was not entitled to be heard on his application. Learned Counsel relied on the common law principle that a party in disobedience of the Order of Court is not entitled to be heard in the same proceedings until he has purged himself of such contempt. He referred to the disobedience by the Applicant of Order of the Court that he should surrender to the Respondent within seven days of the making of the Order the three children of the marriage forcibly taken by him from the Respondent. He relied on Hadkinson v. Hadkinson (supra) and Ojukwu v. Lagos State Govt. (supra) as authority for his submissions. In his reply Kehinde Sofola argued that Applicant was exercising his right of appeal by coming to Court to challenge the order of the Court. Besides, it was submitted that the Applicant had custody of the children before the Order of the Court of Appeal was made on the 20th June, 1991. It was submitted that at the time he took the children, there was a judgment of the High Court which awarded custody in his favour. He claimed that Appellant was not aware of the application for a stay of execution. It was submitted that he was not in contempt of Court or in disobedience of the order of Court whilst exercising his right of appeal. Learned Counsel referred to Huang & Anor. v. Bello & Anor. (1990)6 NWLR. (Pt. 159) 671, A. Rastico (Nigeria) Ltd. v. Societe Generale de Surveillance (1990)6 NWLR.(Pt. 158) 608 and Borrie & Lowie, Law of Contempt p.367.   The common law rule precluding persons in disobedience of the orders of Court against them from being heard in respect of the matters which they stand in disobedience of, is of respectable antiquity. The principle has however been whittled down by exceptions. Thus where the order disobeyed was made without jurisdiction, or where the party in disobedience is challenging the validity of the order, the principle does not apply. -See Gordon v. Gordon & Gordon (1904) p.163.   The distinction is now recognised between the right to be heard in defence of the order made, and the right to enforce an order whilst in disobedience. – see Barker v. Dawson (1836) 1 Coop. 207. In any case our Constitution guarantees the right to be heard. This is a right which cannot be taken away by any contrary common law principle. The right to be heard is one thing. It is another to enforce a right whilst still in disobedience. – See Chuck v. Cremer (1846)1 Coop. temp. Cott. 205 47 E.R. 820, Ojukwu v. Lagos State Govt.. Chief Debo Akande wants to shut out the Applicant from being heard. This Court cannot grant such a prayer.   I now turn to the issue whether Applicant ought to be granted the stay of execution applied for. By this I mean whether he ought to be allowed in continuing disobedience of the Order of the Court to enjoy the exercise of the discretion of this Court. I have already pointed out that the issue before this Court is whether Applicant should be granted a stay of execution on the stay of execution granted the Respondent.   In his submission in support of the application Kehinde Sofola, SAN referred to the affidavit in support of the application, particularly paragraphs 17, 21-30, 33, 34. It was submitted that before the Order of the Court of Appeal was made on the 20th June, 1991, the Order of the High Court awarded custody of the children in his favour. Learned Counsel referred to the findings of fact of the Court of Appeal that the fact that the children were for three years with their mother before Applicant forcibly took them away was irrelevant to the issue before the Court. It was submitted that children whose ages range from 9,8 and 6 years would naturally lean towards their father whose paternal care and control and guidance was important at this stage of their development. Learned Counsel emphasised the comparative wealth and comfort the children would have in the homes of applicant and the penurious circumstances of the respondent. He pointed out that their health which deteriorated when they were with Respondent has improved since he took them away from the custody of the Respondent. Kehinde Sofola referred copiously to the findings of fact of the learned trial Judge in his judgment and emphasised the considerable affluence of the applicant, and the fact that life will be much better and rosier with them if they were allowed to remain with the Applicant. It was submitted that no special circumstances have been shown in the judgment of the Court of Appeal. Chief Debo-Akande, referred to the principles governing the grant of stay of execution in Intercontractors Ltd. v UAC (Nig,)Ltd. (1988) 2 NWLR (Pt.76)303. He pointed out that applicant ignored the affidavit in support of his application. The onus to prove special circumstances enabling a stay of execution was on the Applicant. It was submitted that the ruling challenged considered the interest of the children, subject matter of the stay of execution. Learned Counsel referred to the grounds of appeal and submitted that grounds 1, and 3 cannot succeed. Grounds 4 and 5 are fishy. It was submitted that Applicant was still in disobedience of the Order of Court, and is not entitled to the discretion of the Court in his favour. Regular access will be given to the applicant in respect of the children. Learned Counsel de-emphasised the factor of affluence of rosy living relied upon by the Applicant.   It seems to me that learned Counsel in this application have glossed over the crucial issue. We have before us, an application for a stay of execution pending the determination of the appeal against the decision of this Court on the stay of execution granted by the Court of Appeal to the Respondent.

The stay of execution granted by the Court of Appeal to the Respondent which is the subject matter of appeal to this Court was granted by the Court of Appeal against the judgment of the High Court granting custody of the children to the Applicant. The stay granted is pending the determination of the Appeal. Respondent to this application has appealed to the Court of Appeal against the judgment. The appeal is still pending in that Court.   It is of critical importance to identify the subject matter of the stay of execution. It seems to be assumed that the res involved in this application are the children of the marriage, custody of which is being disputed by the parties. The res in this application is the order for stay of execution by the Court of Appeal. Be that as it may, and as important as it is, the issue before us is one of high judicial policy and constitutional importance. The right to be heard is fundamental. But this does not preclude the control of the exercise of discretion in favour of or against an offending party. The high judicial policy involved in this application is whether our courts ought to exercise their discretion in favour of a person who has remained in continuing disobedience of their orders and has sworn to remain so defiant without showing that the Court has no jurisdiction to make the orders so disobeyed.  Throughout the submission of learned Counsel to the Applicant, there has been no allegation that the Court of Appeal lacked jurisdiction to make the order for stay of execution as in Gordon v. Gordon & Gordon (1904) p.163. The sub -missions have been on the validity of the exercise of discretion on the consideration of the interest of the children, subject matter of the orders challenged. The contention is that the Court of Appeal has failed to exercise its discretion in the interest of the children. We are therefore being invited to exercise our discretion in favour of the Applicant by granting the stay of execution of the Orders of the Court of Appeal.   I have referred in this judgment to the right of the applicant to be heard, and in compliance with our constitutional provision that his application ought to be heard on its merits notwithstanding his continuing disobedience of the Order of the Court below. Learned Counsel to the Applicants main contention is that he is entitled in the exercise of the right of appeal to remain in disobedience of the Order of the Court of Appeal.   I do not think this proposition represents the correct view of the law. Learned Counsel is very familiar with the well settled principle that the exercise of a right of appeal per se does not operate as a stay of execution. Accordingly where a valid order for stay of execution has been made, a disobedience of such order amounts to contempt. In this case it is clear and undisputed that the act constituting contempt that is, the forcible removal of the children, was made before the Order of the Court of Appeal was made. The disobedience consists in the refusal to comply with the order after it was made. The common law principle applied in our Courts is that applicant cannot, whilst continuing in contempt, be heard to be seeking the favour of the Court. – See Barnado v. Ford (1892) AC.326, Chuck v. Cremer (1846)1 Coop. temp Cott.205 49 E.R. 820.   In Barker v. Dawson (1836)1 Coop.207, Lord Cottenham drew a distinction in those cases where the order alleged to be irregular was obtained before or subsequently. In the former case the contempt must be purged before the party could make any application to the Court, but not the latter. The facts of this case falls within the first category. The judicial powers constitutionally vested in our courts includes all the inherent powers and sanctions of courts of law. This involves the powers to regulate its proceedings, punish for contempt and regulate the exercise of its discretion. The Court in the regulation of its proceedings, protection of its dignity and the effective administration of impartial justice is entitled to and indeed obliged to say that it will not allow a process issuing out of the court to be treated with indifference, levity and disdain.   Considerable emphasis has been laid on the relevance and application of section 71 of the Matrimonial Causes Act which makes the interest of the children, the ‘paramount consideration,’ ‘in proceedings with respect to custody, guardian ship welfare, advancement or education of the children of a marriage…’ With due respect to the amount of industry and learning demonstrated in the submission in support of this section, I think it cannot be seriously disputed that the applicatio

COUNSELS

Kehinde Sofola, Esq. S.A.N. (with him, H.O. Etuomiavwo (Miss) and A. Sulu-Gambari) – for the Applicant Chief Debo Akande, S.A.N (with him, F. Edo-Wike and B. Akinyemi) -for the Respondent

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