KPILAH V NGWU

KPILAH V NGWU


IN THE COURT OF APPEAL
IN THE JOS JUDICIAL DIVISION
HOLDEN AT JOS

ON MONDAY, 7TH MAY, 2018


Suit No: CA/J/353/2016

CITATION:

Before Their Lordships:

UCHECHUKWU ONYEMENAM, JCA

HABEEB ADEWALE OLUMUYIWA ABIRU, JCA

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, JCA


BETWEEN

DONAL TERSER KPILAH
(APPELLANT)

AND

DORCAS OGBONNAIYA JOHN NGWU
(RESPONDENT)


PRONOUNCEMENT


A. APPEAL
1. Grounds of Appeal – How grounds of appeal must be predicated upon issues

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. The said Ground 2 of the Appellant’s Notice of Appeal is hereby struck out, having been abandoned. Per WILLIAMS-DAWODU, JCA. read in context

2. Right of Appeal – The implication of Sections 241 (1) & (2) and Section 242 (1) of the 1999 Constitution

I shall commence determination of the preliminary objection with the reproduction hereunder of the provisions of Sections 241 (1) and (2) and 242 (1) of the 1999 Constitution in view of their relevance and for ease of reference:
241. (1) An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases –

(a) Final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance;

2). Nothing in this section shall confer any right of appeal –
(c) Without the leave of the Federal High Court or a High Court or of the Court of Appeal, from a decision of the Federal High Court or High Court made with the consent of the parties or as to costs only.

242. (1) Subject to the provisions of section 241 of this Constitution, an appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal with the leave of the Federal High Court or that High Court or the Court of Appeal.

The learned Respondent’s Counsel argued that the instant appeal is an interlocutory one and therefore there is need for the Appellant to have the leave of this Court. That, without the leave, this appeal is incompetent. A pertinent question in that regard, in my view and humbly is, what is an interlocutory appeal. 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. 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. It is then necessary to describe a final decision.

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 Re Samuel 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.

From the Record, an order of decree nisi was entered on June 16th 2016 pursuant to the Appellant’s petition in Suit No. BOHC/MG/CV/79/15 at the Court below. An order of maintenance in favour of the Respondent, pursuant to her application of September 5th 2016, for ancillary relief, was made on October 5th 2016 in Suit No. BOHC/MG/CV/75M/2016 also at the Court below about three months after the said Suit No. BOHC/MG/CV/79/15. See pages 32-38 of the Record. The said application was heard and the consequent ruling thereon is the subject matter of the instant appeal.
The question remains, whether the order of October 5th 2016 is a final decision of the Court? The answer in my considered view and humbly is in the affirmative and for the following reasons:
The applicant’s prayers in the said application in the main were:

i. For leave to bring the ancillary relief, which was granted since it was not struck out, but entertained.

ii. An order that the Applicant should pay a lump sum of N700, 000. 00 for maintenance monthly being the estranged wife with the six children between them, it was granted though in a reduced sum of N350, 000. 00, see page 38 of the Record.

iii. Orders for one of the Appellant’s shop for commercial use of the Respondent and his house at Gboko as accommodation for the Respondent and the children, were refused, see page 38 of the Record.

Consequently, where all the issues, the prayers and in particular the rights of both parties were resolved one way or the other, one is able to come to the conclusion in my humble view that, Suit No. BOHC/MG/CV/75M/16 was a final decision of the Court below. If that is the position, the need to seek and obtain the leave of Court to appeal did not arise. It also means that, this appeal cannot be referred to as an interlocutory appeal. The Respondent’s Counsel’s argument that since Ground 1 is incompetent as it raised the issue of fact or mixed law and fact and not law alone, and that the Appellant failed to seek and obtain the leave of this Court, cannot hold in the face of a final appeal given Section 241 (1) of the 1999 Constitution. Per WILLIAMS-DAWODU, JCA. read in context

B. MATRIMONIAL CAUSES
3. Maintenance – How an independent application for order of maintenance can be instituted out of the marriage petition

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.

In my humble view, the argument by the Appellant’s Counsel that the Respondent should have appealed against the dismissal of her petition in Suit No. BOHC/MG/CV/46/15 by the Court below, rather than her separate application for ancillary relief, has no support in law. A litigant chooses whether or not to appeal, cannot be forced to do so, may even choose not to defend his case and of course would face the consequence of his action. Per WILLIAMS-DAWODU, JCA. read in context

4. Maintenance – Factors considered by the Court in granting order of maintenance

Whether an order of maintenance is made during the pendency of the proceedings in respect of a petition, the principal or thereafter as in the Respondent’s case, the factors the Court assists itself with in deciding one way or the other in the grant of the reliefs, are the same.

Section 70 (1) and (2) of the Act

(1). Subject to this section, the Court may, in proceedings with respect to the maintenance of a party to a marriage, or of children of the marriage, other than proceedings for an order for maintenance pending the disposal of proceedings, make such order as it thinks proper, having regard to the means, earning capacity and conduct of the parties to the marriage and all other relevant circumstances.

(2). Subject to this section and to rules of Court, the Court may, in proceedings for an order for the maintenance of a party to a marriage, or of children of the marriage, pending the disposal of proceedings, make such order as it thinks proper, having regard to the means, earnings capacity and conduct of the parties to the marriage and all other relevant circumstances.
From the above provisions, the Court is expected in determining an application for an ancillary relief of maintenance such as the Respondent’s 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 Respondent’s 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.

One then asks, by granting the Respondent’s application in the award of the lump sum of N350, 000. 00, can it be said that the discretion of the Court below was judicially and judiciously exercised. Did the Court make use of relevant and material facts in compliance with the applicable law, Section 70 (1) and (2). In other words, were there relevant and material facts before the Court in support of the Respondent’s application which it considered along with the prescription of the law in Section 70 of the Act.

There are a host of authorities on the judicial interpretation and elucidation of the foregoing factors by the Court, wherein, the Courts have exercised their discretion. 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 husband’s 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 ALL NLR (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 party’s 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 of the 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; That is on point. However, one fails, respectfully, to see where or how the Court took into account the prescribed factors for making an award in maintenance according to the law. One fails to see relevant and material facts, vis a vis the factors as prescribed by the Act that the Court made use of in order to arrive at its decision and particularly the sum of N350, 000. 00 when it stated thus:

“The Court puts into consideration educating the 6 children, their feeding, clothing, medical, books, maintenance and feeding of the children in school. The Court also considers both the children and the applicant. The applicant is entitled to maintenance from her former husband.” See page 37 of the Record.

It is pertinent at this juncture to state that, in my considered view and humbly, the affidavit of the Respondent in support of her application was bereft of facts and details necessary and much needed for the grant of the application. The Court would appear to have evaluated and considered paragraphs 11-16 of the Respondent’s affidavit which are hereunder reproduced, perhaps the more relevant in its estimation out of the 19 paragraphs in support of the
Respondent’s application as follows:

Paragraph 11…..That the annual House rent in the House I and the children occupying is now due and it is N30, 000 per annum.

Paragraph 12…….That the Claimant/Applicant have various business that are going on including a Nursery/Primary and Secondary School of which he is the

proprietor.

Paragraph 13……..That the monthly need of me and the children is the sum of N700, 000. 00 (Seven Hundred Thousand Naira Only).

Paragraph 14………That out of these (sic) money, the School fee/other school needs of the children will be paid including the medical expenses, clothing and

feeding.

Paragraph 15………That I know that the Petitioner/Respondent can afford to pay the sum of money from his earnings at the Private School of which he is the

owner.

Paragraph 16………That the Petitioner/Respondent have (sic) no other children except these six children between me and him.

See pages 3-4 and in particular, page 33 of the Record.

In my considered view and as already stated, one is unable to find facts and particulars that could have assisted the Court for the judicial and judicious exercise of its discretion. To have averred that, the Appellant had various businesses on going and a School, without the necessary particulars thereof, was not sufficient. The name of the school and location, its capacity, were all not mentioned, nor was any of the various businesses identified or named. Even if the details are not water tight, they must present details upon which the Court needs to satisfy itself. For the Respondent to state that, the Appellant could afford to pay from his earnings was not sufficient and what are the earnings, from the unidentified private School and various businesses without details, what kind of businesses. What are the names of the children’s schools, what are their fees like, no school bills, invoices, previous hospital bills if any, some idea of feeding expenses. How was the sum of N700, 000. 00 computed as monthly allowance. Therefore, with the bereft of fact affidavit of the Respondent, one wonders and is unable to find how the learned Court considered the means, earning capacity and conduct of all the parties to the marriage and all other relevant circumstances. With respect, one will be correct to find and conclude that no such consideration was made and given such un- detailed affidavit. It is important to note, as it would appear obvious that, the counter-affidavit of the Appellant was far from helpful to his own case and definitely of no assistance whatsoever to the Court. See pages 15-17 and in particular 34-35 of the Record. There is no doubt that, where there are conflicts between two affidavits and there no documents exhibited along therewith, the Court is empowered to order oral evidence as it is not permitted to choose to believe one against the other just like that. The instant case is however not so, the Applicant’s affidavit itself did not contain the relevant and material facts needed and respectfully, the Court failed to apply the statutory factors for determining the worth of the Respondent’s affidavit.

In the light of the foregoing, one is unable to conclude that the exercise of the Court’s discretion in the award of the monthly lump sum of N350, 000. 00 for the maintenance of the Respondent and the children of their dissolved marriage was judicial and judicious. It appears arbitrary and not according to the applicable relevant provisions of the said Matrimonial Causes Act. Per WILLIAMS-DAWODU, JCA. read in context


LEAD JUDGMENT DELIVERED BY WILLIAMS-DAWODU, JCA


This appeal emanated from the decision of the Borno State High Court, Maiduguri, which was delivered on October 5th 2016 by Hon. Justice U. B. Bwala wherein, the Court found in favour of the Respondent (the Claimant at the Court below) against the Appellant (the Respondent at the Court below) 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 between the Respondent and the Appellant.

The Appellant and the Respondent were married under the Marriage Act and have six (6) children between them. By the Appellant’s petition for divorce in Suit No: BOHC/MG/CV/79/15 filed on November 26th 2015, the marriage between the Appellant and the Respondent was dissolved by an order of decree nisi on June 16th 2016 and custody of the six (6) children of the marriage, was given to the Respondent. See pages 5-9 of the printed Record before this Court. About three (3) months after the dissolution of the marriage, the Respondent, on September 5th 2016, vide Motion on Notice dated July 20th 2016, 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. The grounds for the application were 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 well being became solely her responsibility. See pages 1-4 of the Record.

She sought in the main, the following orders:

1. An order for leave of the Honourable Court permitting the Claimant/Applicant to bring an application for ancillary relief not claimed in the course of the trial of the main relief in Suit No: BOHC/MG/CV/79/15.

2. An order of the Honourable Court ordering the Petitioner/Respondent in Suit No: BOHC/MG/CV/79/15 to pay a lump sum of N700, 000 monthly for the maintenance, education, medical needs and clothing of the Claimant/Applicant and six children of the marriage for the next 10 years through the Registry of this Honourable Court.

3. An order that the Petitioner/Respondent release (sic) one of his shops in post office Area for the Claimant/Applicant and his house at Gboko for the use of the children of the marriage.

See pages 1-4 of the printed Record before this Court.

In response to the Respondent’s application, the Appellant filed Counter-affidavit of ten (10) paragraphs dated September 14th 2016 on pages 15-17 of the Record to the effect that, the procedure adopted by the Respondent was wrong as there was no appeal against the judgment in respect of the Appellant’s petition as well as the Respondent’s in Suit No. BOHC/MC/CV/46/15 which was dismissed, therefore, the Respondent’s application should be refused.

The Court, after hearing the Respondent’s application concluded thus:

“Finally considering the above facts I award N350,000.00. (Three Hundred and Fifty Thousand Naira) to be paid lumpsum through the registrar of the court, per month. This boils down to N50, 000. 00 per month per the applicant and the 6 children.”

See page 38 of the Record.

Being dissatisfied with the foregoing decision of the Court, the Appellant has approached this Court. His Notice of Appeal was dated and filed on October 17th 2016, with two (2) Grounds of Appeal seeking an order to set aside the Ruling of the Court of October 5th 2016 and a retrial.

Mr. M. S. Umar Esq. of Al-Adala Chambers settled the Appellant’s brief, dated July 17th 2017 and filed July 24th 2017. The Respondent’s brief which was dated and filed on October 16th 2017 was settled by A. A. Airadion Esq. of Airadion & Airadion.

NOTICE OF PRELIMINARY OBJECTION

On page 2 of the Respondent’s brief of argument, a preliminary objection was raised 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.

The learned Respondent’s Counsel argued that, the instant appeal is an interlocutory appeal which streams from an Order for ancillary relief of maintenance made pursuant to the main relief in Suit No. BOHC/MG/CV/75/2015, wherein the marriage between both parties was dissolved and custody of the children of the marriage was granted to the Respondent without any order for maintenance. The case of Adesanoye V. Adesanoye (1997)1 1 ALL NLR P. 123 was cited in support.

He argued with respect to Ground 1 of the Notice of Appeal that, since it raised the issue of fact or mixed law and fact and not law alone, and the Appellant failed to seek and obtain the leave of this Court, the Ground is incompetent. Further that, having so failed, the two (2) Grounds of appeal herein are incompetent and consequently rob this Court of its jurisdiction to entertain this appeal. He contended further that, even if Ground 2 is competent, the Appellant has failed to distill any issue there from and no submission in respect thereof.

It is for that reason, deemed abandoned and urged that it be struck out.

It is necessary to note that the Appellant’s Counsel did not make any submission in response to the Respondent’s objection. At the hearing of the appeal on February 28th 2018 he informed the Court that he would “abide by the position of the Court” and rather, argued the main appeal.

RESOLUTION OF THE PRELIMINARY OBJECTION

I shall commence determination of the preliminary objection with the reproduction hereunder of the provisions of Sections 241 (1) and (2) and 242 (1) of the 1999 Constitution in view of their relevance and for ease of reference:

241. (1) An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases –

(a) Final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance;

2). Nothing in this section shall confer any right of appeal –

(c) Without the leave of the Federal High Court or a High Court or of the Court of Appeal, from a decision of the Federal High Court or High Court made with the consent of the parties or as to costs only.

242. (1) Subject to the provisions of section 241 of this Constitution, an appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal with the leave of the Federal High Court or that High Court or the Court of Appeal.

The learned Respondent’s Counsel argued that the instant appeal is an interlocutory one and therefore there is need for the Appellant to have the leave of this ourt. That, without the leave, this appeal is incompetent. A pertinent question in that regard, in my view and humbly is, what is an interlocutory appeal.

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. 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. It is then necessary to describe a final decision. 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 Re Samuel 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.

From the Record, an order of decree nisi was entered on June 16th 2016 pursuant to the Appellant’s petition in Suit No. BOHC/MG/CV/79/15 at the Court below. An order of maintenance in favour of the Respondent, pursuant to her application of September 5th 2016, for ancillary relief, was made on October 5th 2016 in Suit No. BOHC/MG/CV/75M/2016 also at the Court below about three months after the said Suit No. BOHC/MG/CV/79/15. See pages 32-38 of the Record. The said application was heard and the consequent ruling thereon is the subject matter of the instant appeal.

The question remains, whether the order of October 5th 2016 is a final decision of the Court? The answer in my considered view and humbly is in the affirmative and for the following reasons:

The applicant’s prayers in the said application in the main were:

i. For leave to bring the ancillary relief, which was granted since it was not struck out, but entertained.

ii. An order that the Applicant should pay a lump sum of N700, 0. 00 for maintenance monthly being the estranged wife with the six children between them, it was granted though in a reduced sum of N350, 000. 00, see page 38 of the Record.

iii. Orders for one of the Appellant’s shop for commercial use of the Respondent and his house at Gboko as accommodation for the Respondent and the children, were refused, see page 38 of the Record.

Consequently, where all the issues, the prayers and in particular the rights of both parties were resolved one way or the other, one is able to come to the conclusion in my humble view that, Suit No. BOHC/MG/CV/75M/16 was a final decision of the Court below. If that is the position, the need to seek and obtain the leave of Court to appeal did not arise. It also means that, this appeal cannot be referred to as an interlocutory appeal.

The Respondent’s Counsel’s argument that since Ground 1 is incompetent as it raised the issue of fact or mixed law and fact and not law alone, and that the Appellant failed to seek and obtain the leave of this Court, cannot hold in the face of a final appeal given Section 241 (1) of the 1999 Constitution.

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.

The said Ground 2 of the Appellant’s Notice of Appeal is hereby struck out, having been abandoned.

Flowing from the fore going, the preliminary objection raised by the Respondent succeeds in part as Ground 2 has been struck out. On the other hand, it cannot be sustained for the reason that, this appeal is not an interlocutory appeal as it is one against the final decision of the Court below in Suit No. BOHC/MG/CV/75M/16.

In consequence, one proceeds to determine the appeal on its merit.

THE MAIN APPEAL

ISSUES SUBMITTED BY THE PARTIES FOR DETERMINATION

The Appellant’s Sole Issue:

Whether or not the lower Court was right in awarding N350, 000. 00. Monthly to be paid to the Respondent for maintenance without resort to the guiding principles of awarding maintenance in matrimonial causes, (sic) under the Marriage Act (Grounds 1, 2 and 3 of the grounds of appeal).

It is necessary to note that there are only two (2) grounds of appeal as opposed to what is stated above by the Appellant’s Counsel. See pages 39-40 of the Record.

The Respondent’s Sole Issue:

Whether the Lower Court was right to have awarded as maintenance to the Respondent and six children of the marriage the bulk sum of N350, 000 per month to cover the housing, feeding, education, clothing and medical needs of them?

The above stated issues by both sides are the same thing only slightly differently worded. I shall adopt the issue submitted by the Appellant with slight amendment as empowered so to do as follows:

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.

SUBMISSIONS BY THE PARTIES

The learned Appellant’s Counsel submitted that, by virtue of Section 70 (2) of the Matrimonial Causes Act, the Court was wrong to have ordered monthly payment of a lump sum of N350, 000. 00 for maintenance against the Appellant without having any regard to the means, earning capacity, the standard of living the parties were accustomed to and the conduct of the parties to the marriage and other relevant circumstances. He cited in support, the cases of Prince Amah V. Victoria Amah (2016) 9 C.A.R.P, Damulak V. Damulak (2004) 8 NWLR (PT. 874) P. 151, Nanna V. Nanna (2006) 3 NWLR (PT. 966) 1 and Akinbuwa V. Akinbuwa 166. He argued that, the requirements of the law for the award of maintenance could not have been determined by the means of affidavit alone and that the Respondent should have filed a writ of summons and statement of claim in order for both sides to call evidence which he argued the Court should have done. That, as the proceedings between the parties was hostile, the Court ought not to have allowed the use of affidavit evidence without exhibits in support and cited the case of P.D.P & Anor. V. Hon. Patrick Asadu & Ors (2015) 7 C.A.R. P. 84. He submitted that, the Appellant has no means of providing the sums being asked for by the Respondent for upkeep for her and the children of the marriage and that there is no evidence to the contrary. He submitted further that, the Respondent ought to have appealed the decision of the Court in Suit No. BOHC/MG/CV/46/2015 where a similar application for maintenance by her was dismissed and not to file a fresh suit for the same claim. The case of Agbogunleri V. Depo (2008) VOL. 2 MJSC 70 was cited in support. He therefore, in conclusion urged that, the issue be resolved in favour of the Appellant.

On the other hand and in opposition, the learned Counsel for the Respondent, submitted that, the Court gave consideration to the Respondent’s deposition which showed the need for such an award and that, the Appellant did not dispute his capacity to pay the amount the Respondent asked for which was twice the sum of N350, 000 granted. That, he also failed to give alternative arrangement for the children’s welfare. The learned Counsel submitted that, the contentions of the Appellant as contained in his Counter-affidavit did not assist his case as they were only on technical points and cited in support the case of Tabansi V. Tabansi (2009) 12 NWLR (PT. 1155) P. 415. That, what the Court awarded was in the best interest of the six (6) children of the marriage and the Respondent and cited in support the case of Buwanhot V. Bowanhot (2009) 16 NWLR (PT. 1166) P. 22. He argued that, the Respondent correctly used the method of application which is one of the ways provided under the Matrimonial Causes Rules, Order XIV Rule 1 for ancillary relief of maintenance and there is no provision for a writ of summons there under. The case of Ugbah V. Ugbah was cited in support of his position. He argued that, the Appellant’s Counsel was wrong to have raised the issue of Res judicata in a matter of maintenance which cannot be resolved once and for all as there would always be need for revision and in support cited the case of Adesanoye V. Adesanoye (1971) 1 ALL NLR P. 123. He submitted that, even if the Court was wrong to have allowed the method by which the Respondent pursued her claim, Order 21 Rule (2), (3) and (b) of the Rules cured any abnormalities and non-compliance and therefore avoided the annulment of the whole proceedings. He cited the case of Tabansi V. Tabansi (Supra) in support. He urged this Court in conclusion to disallow the Appellant’s appeal and comply with the order of the Court below.

THE COURT

SOLE ISSUE

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.

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.

In my humble view, the argument by the Appellant’s Counsel that the Respondent should have appealed against the dismissal of her petition in Suit No. BOHC/MG/CV/46/15 by the Court below, rather than her separate application for ancillary relief, has no support in law. A litigant chooses whether or not to appeal, cannot be forced to do so, may even choose not to defend his case and of course would face the consequence of his action.

Whether an order of maintenance is made during the pendency of the proceedings in respect of a petition, the principal or thereafter as in the Respondent’s case, the factors the Court assists itself with in deciding one way or the other in the grant of the reliefs, are the same.

Section 70 (1) and (2) of the Act (1). Subject to this section, the Court may, in proceedings with respect to the maintenance of a party to a marriage, or of children of the marriage, other than proceedings for an order for maintenance pending the disposal of proceedings, make such order as it thinks proper, having regard to the means, earning capacity and conduct of the parties to the marriage and all other relevant circumstances.

(2). Subject to this section and to rules of Court, the Court may, in proceedings for an order for the maintenance of a party to a marriage, or of children of the marriage, pending the disposal of proceedings, make such order as it thinks proper, having regard to the means, earnings capacity and conduct of the parties to the marriage and all other relevant circumstances.

From the above provisions, the Court is expected in determining an application for an ancillary relief of maintenance such as the Respondent’s 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 Respondent’s 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.

One then asks, by granting the Respondent’s application in the award of the lump sum of N350, 000. 00, can it be said that the discretion of the Court below was judicially and judiciously exercised. Did the Court make use of relevant and material facts in compliance with the applicable law, Section 70 (1) and (2). In other words, were there relevant and material facts before the Court in support of the Respondent’s application which it considered along with the prescription of the law in Section 70 of the Act.

There are a host of authorities on the judicial interpretation and elucidation of the foregoing factors by the Court, wherein, the Courts have exercised their discretion. 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 husband’s 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 ALL NLR (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 party’s 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 of the 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; That is on point. However, one fails, respectfully, to see where or how the Court took into account the prescribed factors for making an award in maintenance according to the law. One fails to see relevant and material facts, vis a vis the factors as prescribed by the Act that the Court made use of in order to arrive at its decision and particularly the sum of N350, 000.00 when it stated thus:

“The Court puts into consideration educating the 6 children, their feeding, clothing, medical, books, maintenance and feeding of the children in school. The Court also considers both the children and the applicant. The applicant is entitled to maintenance from her former husband.’’

See page 37 of the Record.

It is pertinent at this juncture to state that, in my considered view and humbly, the affidavit of the Respondent in support of her application was bereft of facts and details necessary and much needed for the grant of the application. The Court would appear to have evaluated and considered paragraphs 11-16 of the Respondent’s affidavit which are hereunder reproduced, perhaps the more relevant in its estimation out of the 19 paragraphs in support of the Respondent’s application as follows:

Paragraph 11…..That the annual House rent in the House I and the children occupying is now due and it is N30, 000 per annum.

Paragraph 12…….That the Claimant/Applicant have various business that are going on including a Nursery/Primary and Secondary School of which he is the proprietor.

Paragraph 13……..That the monthly need of me and the children is the sum of N700, 000. 00 (Seven Hundred Thousand Naira Only).

Paragraph 14………That out of these (sic) money, the School fee/other school needs of the children will be paid including the medical expenses, clothing and feeding.

Paragraph 15 … … … That I know that the Petitioner/Respondent can afford to pay the sum of money from his earnings at the Private School of which he is the owner.

Paragraph 16………That the Petitioner/Respondent have (sic) no other children except these six children between me and him.

See pages 3-4 and in particular, page 33 of the Record.

In my considered view and as already stated, one is unable to find facts and particulars that could have assisted the Court for the judicial and judicious exercise of its discretion. To have averred that, the Appellant had various businesses on going and a School, without the necessary particulars thereof, was not sufficient. The name of the school and location, its capacity, were all not mentioned, nor was any of the various businesses identified or named. Even if the details are not water tight, they must present details upon which the Court needs to satisfy itself. For the Respondent to state that, the Appellant could afford to pay from his earnings was not sufficient and what are the earnings, from the unidentified private School and various businesses without details, what kind of businesses. What are the names of the children’s schools, what are their fees like, no school bills, invoices, previous hospital bills if any, some idea of feeding expenses. How was the sum of N700, 000. 00 computed as monthly allowance. Therefore, with the bereft of fact affidavit of the Respondent, one wonders and is unable to find how the learned Court considered the means, earning capacity and conduct of all the parties to the marriage and all other relevant circumstances. With respect, one will be correct to find and conclude that no such consideration was made and given such un- detailed affidavit. It is important to note, as it would appear obvious that, the counter-affidavit of the Appellant was far from helpful to his own case and definitely of no assistance whatsoever to the Court. See pages 15-17 and in particular 34 35 of the Record. There is no doubt that, where there are conflicts between two affidavits and there no documents exhibited along therewith, the Court is empowered to order oral evidence as it is not permitted to choose to believe one against the other just like that. The instant case is however not so, the Applicant’s affidavit itself did not contain the relevant and material facts needed and respectfully, the Court failed to apply the statutory factors for determining the worth of the Respondent’s affidavit.

In the light of the foregoing, one is unable to conclude that the exercise of the Court’s discretion in the award of the monthly lump sum of N350, 000. 00 for the maintenance of the Respondent and the children of their dissolved marriage was judicial and judicious. It appears arbitrary and not according to the applicable relevant provisions of the said Matrimonial Causes Act.

Consequently, the Ruling/Decision of the Court below delivered on October 5th 2016 is hereby set aside.

ONYEMENAM, JCA

I have read before now the judgment just delivered by my learned brother ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, JCA. I agree with the conclusion reached thereat. I also set aside the decision of the High Court of Borno State delivered on 5th October, 2016 by U. B. Bwala, J. in suit No. BOHC/MG/CV/79/15.

ABIRU, JCA

I have had the privilege of reading before now the lead judgment delivered by my learned brother, Elfrieda Oluyemisi Williams-Dawodu, JCA. His Lordship has ably and exhaustively considered and resolved all the issues in contention in the appeal. I agree with the reasoning and abide the conclusions reached therein. I have nothingmore to add

Appearances:

Mr. M. S. Umar, Esq. For Appellant(s)

A. A. Airadion, Esq. For Respondent(s)