Henry Oni Okpaku V. Christianah Idu Okpaku (1947)

LawGlobal Hub Judgment Report – West African Court of Appeal

Claim for maintenance—Jurisdiction of Supreme Court of Nigeria—SupremeCourt Ordinance, section 14.

Unless they arise out of suits for divorce or judicial separation or are in respect of payments made by third parties to provide necessaries for a deserted wife, the Supreme Court of Nigeria has no jurisdiction to entertain claims for maintenance.

Such jurisdiction is not conferred by the Summary Jurisdiction (Separation and Maintenance) Act, 1895, which was not an Act of general application. Case referred to :

(1) Weingarten v. Engel (1947), 1 A.E.R. 425.

Appeal from the Supreme Court of Nigeria.

Onyeama for Appellant (defendant below).

Nelson-Williams for Respondent (plaintiff below).

The following joint judgment was delivered:

The plaintiff-respondent in this case sued her husband for £142 10s. Od. for maintenance. This was made up by a variety of items of expenditure such as feeding, clothing, school fees, etc., for herself and her three children from March, 1944 to October, 1945. The learned trial Judge awarded her £100 ” being cost of maintenance ” and it is against this judgment that the defendant-appellant appeals to this Court.

At the trial the only serious point taken by the appellant was that there was no sufficient proof of the marriage. The only evidence with regard to the actual marriage was given by the respondent and her mother. The marriage certificate was not produced as respondent said that it was in appellant’s possession, who should have been served with a notice to produce it, but as the appellant gave no evidence to rebut the respondent we are of the opinion that the learned trial judge was perfectly entitled to have deemed the marriage sufficiently proved iemper praesumitur pro matrimonis.

How the learned trial Judge arrived at the figure of £100 as the maintenance due is not clear, but in view of the latter part of this judgment, further enquiry Into that issue is unnecessary.

When the appeal was filed an entirely new defence appeared in the grounds of appeal which reads as follows:—

” 2. Because there being no provisions in the Laws of Nigeria for maintenance to be paid by a husband to a wife and the English Law on the point not applying to this country and the claim before the Court not being supplementary to a matrimonial petition, the Court had no jurisdiction to entertain the claim.”

Now the jurisdiction of the Supreme Court is set out in the Supreme Court Ordinance No. 23 of 1943, which reads as follows:—

” Subject to the terms of this or any other Ordinance, the common law, the doctrines of equity, and the Statutes of general application which were in force in England on the 1st January, 1900, shall be in force within the jurisdiction of the Court.”

There is no local Ordinance providing for maintenance and it is, therefore, necessary to examine the Laws in force in England in 1900, and to discover whether they can be said to be laws of general application.

The law in force in England was the Summary Jurisdiction (Separation and Maintenance) Act, 1895, which was not an Act of general application as it did not even apply to Scotland and Ireland and the procedure laid down provided for a hearing before a court of summary jurisdiction with an appeal to the Probate, Divorce and Admiralty Division of the High Court. We are, therefore, of the opinion that the Supreme Court of Nigeria has no jurisdiction to entertain cases of maintenance.

It must not be thought that this judgment in any way affects the right to maintenance arising out of an action for divorce or judicial separation, nor to cases of payments made by third parties to provide necessaries for a deserted wife. Weingarten v. Engel (1).

The appellant having failed to raise this defence before the trial Court, this appeal is allowed but there will be no order as to costs.

Appeal allowed.