Adeline Njideka Megwalu V. Justin Obidi Megwalu (1995)

LawGlobal-Hub Lead Judgment Report

ACHIKE J.C.A. 

Ordinarily, the present application is similar to the inumerable applications that feature ever-so regularly for extension of time to do something which the statutory prescribed period for doing same had lapsed for one reason or the other. By and large, such applications are disposed of with despatch yet in a few cases they are resisted because the applicant has failed to explain away satisfactorily the reason for his delay. In the present case, the resistance to the application is for a different reason as we shall show presently. This application is stated to be brought pursuant to Order 1 Rule 20 of the rules of this court and the inherent jurisdiction of the court. Inter alia, the motion on notice reads as follows:

“for an order enlarging the time given to the applicant to supply the particulars of the natural father of the children of the marriage to the respondent up to and including the 14th day of December, 1994 when the respondent’s counsel received the particulars.”

There is need to supply some background information to the application. This, to my mind, has been amply deposed to in the applicant’s affidavit in support of the motion. For case of reference, I reproduce the salient paragraphs of the supporting affidavit deposed to be the applicant. Adeline Njideka Megwalu which run as follows:

“2. The Chief Judge refused the application by the respondent above who is the respondent and cross-petitioner in the divorce proceeding pending in his court for disclosure of the particulars of the natural father of the two children born while we were living together.

3. On 15th June, 1994, this court allowed the appeal and ordered that the particulars be supplied to the respondent above within 14 days and in default thereof that paragraphs 8 and 9 of my said petition shall be deemed struck off.
4. My counsel supplied the particulars to the respondent’s counsel on 14th December, 1994, well outside the 14 days.
5. My counsel informs me that it took him that time to make up his mind whether to supply the particulars, or to appeal against the said order of this court.
6. The respondent has still not filed his answer to my amended petition containing the said paragraphs 8 and 9.
7. When the case was called up in the Court below on 25th January, 1995, Dr. Obi Ogene who held brief for J.H.C. Okolo, Esquire, SAN informed the court that the view in their chambers was that I had not complied with the order or this court.
8. The High Court adjourned the hearing of the petition to the 3rd March, 1995, to enable me put matters straight.
9. I am advised by my counsel, whom I verily believe, that it is necessary to apply to the court to extend the time for supplying the particulars which are already in the hands of respondent’s counsel in order to regularize the step taken out of time.
10. I verily believe, that the respondent has suffered, and will suffer, no prejudice from the particulars being supplied outside the 14 days ordered by the court:’

The respondent, Justin Obidi Megwalu, in exactly the same number of paragraphs as the applicant’s affidavit, in turn answered the supporting affidavit in his counter affidavit. I will also for purposes of easy reference highlight the important paragraphs which are reproduced hereunder because they also lucidly state the reasons for contesting the application. These are:

‘”2. That paragraphs 1, 2 and 3 of the affidavit in support of the application sought are correct, Further that the said order/judgment of the Court of Appeal is exhaustive in its discretion therein.

3. Further that I am advised by my counsel herein. J.H.C. Okolo SAN & Co. that this Court since having delivered its said judgment on the appeal on 15/6/94 is functus officio in respect or all matters pertaining to the appeal. I believe him.
4. That paragraph 4 of the affidavit is inaccurate. My said counsel tells me and I verily believe him that a letter dated 25/11/94 which he received on 14/12/94 at 3pm was sent by counsel to the applicant to my said counsel, purporting to give the said further and better particulars ordered by this court, but that the said communication was not made in compliance with the relevant court orders on the appeal.
5. That in answer to paragraph 7 I am aware that the attitude of the applicant herein has consistently been one of a total rejection of this court’s judgment orders in the appeal, for which I am further advised and verily believe, she ought to have gone on appeal.
6. Further that the said attitude was voiced in my presence in open court on 25/1/95 when the matter came before the High Court immediately after the judgment in the appeal.
7. That paragraph 6 thereof is grossly misleading, the applicant up till now has persisted in her defiance of the orders made in the appeal and ought not in any honesty say that I am in default of filing my answer thereto, which I can only do when the state of her own pleadings as the petitioner is certain.
8. That paragraph 7 is correct and we believe fully justified in the circumstance.
9. That paragraph 8 is correct but that it is incorrect as claimed in paragraph 9 that the said further and better particulars ordered by this court has been properly supplied, by virtue of paragraph 4 herein.
10. That my counsel tells me and I verily believe him that this application is asking the court to vary its judgment in the appeal, and therefore incompetent:’

The above averments in the supporting affidavit, the counter affidavit and the supplementary affidavit in support of the motion encapsulate, with the utmost lucidity, the arguments that counsel on both sides wish to advance. Thus, as the record of proceedings of the court during the oral hearing on 2/5/95 and 15/5/95 bear out, only very brief introductory skimlishes by way of legal arguments were proferred by counsel.

At the resumed sitting on the 15th day of May, 1995, Mr. Anyamene SAN moves the motion in terms of the motion paper and relies on his two affidavits in support of the motion which he submits adequately shows the reason for the delay in furnishing of the marriage. Counsel says that the facts averred in the ordered information about the natural father(s) of the children in the affidavits are not controverted except that respondent in his paragraph 10 of his counter-affidavit raised the issue of competency of the application. In his further submission, counsel argued that the application was entertainable particularly if the court evokes its extensive powers under the provisions of section 16 of the Court of Appeal Act, because, according to counsel, since the Enugu High Court by the rules of court – order 25 rule 11 – can extend time, section 16 of the Act would empower this court to do the very same thing which the High Court is being invited to do. Accordingly, he submits finally that this court is neither functus officio nor is it being asked to review its previous order.

Mr. Okolo. SAN, responding, refers to the counter-affidavit in opposition to the motion and says. it raises substantial issues of fact and should not be swept under the carpet, especially when one looks at its paragraphs 4, 5 and 6. Counsel submits that the request for further and better particulars, if ordered by the court, presupposes supplying such facts or information by filing same in court and not by furnishing same by letter-writing. Once the document containing the information is filed that would constitute sufficient compliance. It is his further submission that after the expiration of 14 days paragraphs 8 and 9 of the amended petition ceases to exist and for that reason the application is incompetent. Counsel relies on the following authorities Intercontractors Nigeria Ltd. v. U.A.C. of Nigeria Ltd. (1988) 2 NWLR (Pt.76) 303 at 344; Faleye v. Otapo (1987) 4 NWLR (Pt.64) 186 at P.195. It is counsel’s further submission that a court after judgment can only tamper with it under the “slip rule” which is not the case here and places reliance on Makanjuola v. Balogun (1989) 3 NWLR (Pt. 108) 192 at 206 and P. 207A: ARCON v. Fassassi (1987) 3 NWLR (Pt.59) 42 at Pp. 45-47 and Victor Olu Rotimi v. Felicia Ige (1993) 10 SCNJ 1 at 17: (1993) 8 NWLR (Pt.311) 257. Finally, counsel submits that neither section 16 of the Court of Appeal Act nor Order 1 Rule 22, refer Order 25 Rule 9 of the High Court Rules 1988 is of any assistance to the applicant because the applicant cannot ask the court to do what is no longer in existence nor possible to do.

Replying, Mr. Anyamene SAN repeats his reliance on section 16 of Court of Appeal Act, and also invites the court to grant the application by examining Order 3 rules 25 and 27 of the rules of this court, counsel further says that even by rules of court of the lower court, the extension of time sought could be done ‘counsel to counsel” under Order 20 rule 2. He urges that the application be granted.

Mr J.H.C. Okolo, learned Senior Advocate in his further submission, with leave of court drew attention to the fact that the panel of Justices of this Division that delivered the vexed judgment comprised Ejiwunmi. Tobi and Akintan, JJCA., in which Akintan JCA delivered the leading ruling but that today’s panel hearing this application is differently constituted in that it included Achike JCA and who also presided over the matter. Counsel submitted that with the variation in the panel it was evident that the present application was an invitation by the applicant to the newly constituted panel to review the judgment of the earlier panel dated 15/6/94. Relying on Bature Kanada v. Governor of Kaduna State & anor (1986) 4 NWLR (Pt.35) 361 at 379, learned counsel submitted that the court as presently constituted lacked jurisdiction and urged us to refuse the application.

Mrs L.O. Etoniru, in further reply, holding the fort for Mr. Anyamene SAN, referred to section 226 of the 1979 Constitution to support the contention that the current panel was properly constituted. Furthermore, she referred to order 3 rule 25(2), rules 26 and 27 of the same order of the Court of Appeal rules where the reference is to the court and not to the panel and therefore submitted that the application is to the court and not to the panel; she relies on Abeki v. Amboro (1961) All NLR 368 and Aigoro v. University of Lagos (1984) 11 S.C. 29: (1985) 1 NWLR (Pt.1) 143.

Mr. Okolo SAN, with the court’s indulgence, was allowed to further submit that an application to appeal is a different thing from application for leave to appeal. The application, ex facie, is simply one for enlargement of time within which to supply an information as ordered by the court. That information is to supply the name of the natural father of the two children of the marriage to the respondent. The deadline was 14th day of December, 1995. It was not met by the applicant hence this application. It is however necessary to state the facts accurately, shorn of legal disputations, as may appear to be the true state of affairs. To this end, the applicant deposed in her supplementary affidavit that the ordered information was communicated by letter to the respondent’s counsel outside the court’s prescribed period. The legality of the said mode of communication has now been seriously questioned by respondent’s counsel. Applicant’s counsel has contended that respondent is yet to file his answer to the amended petition.

Before addressing the state of impasse with regard to the supply of information ordered by the court. I would wish to dispose of some points raised in the parties’ affidavit evidence. First, it is undisputed that respondent is yet to file his answer to the amended petition; this is obviously understandable being a situation which has been brought about by the contested failure of applicant to supply the information ordered by this court. It would be asking for too much from the applicant to expect the respondent to file his answer to the petition when the applicant/petitioner has, as it were, erected an obstacle to the filing of a comprehensive answer coupled with the present application whose decision, one way or the other, has the far-reaching consequence of changing the whole tenor of the parties’ case. Therefore, failure on respondent’s part to file his answer, in the circumstances of this case, does not attract any blame worthiness.

There is also the other point raised in this application to the effect that quite apart from the dilatoriness on applicant’s part, the information ordered to be supplied was not properly supplied in that the same was purportedly furnished through mere letter writing. Generally, when a court of record orders pleadings the invariable practice is that the parties exchange copies of their written pleadings by filing them in court and the same are served on the parties by appropriate court officials (bailiffs) unless it was also specifically incorporated in the order that service should be counsel to counsel. This practice extends to all other documents including briefs which are ordered to be prepared and furnished by one or both parties to the case. Once the document is filed in court within the prescribed period that will be deemed proper compliance even though the same is not served on the opposing party within the stipulated period. In the instant case, the supply of the information ordered by the court cannot, in my view, be expected to be conveyed orally to the opposing party as well as to the court. The time-honoured practice is that the supply of information ordered by the court, unless the information is contained in a document, is conveyed to all concerned by reducing the information to writing and copies or same are duly filed in court after the payment of prescribed fees. Thereafter, the aforesaid filed copies are served on those entitled to receive same. This approach readily commends itself to good sense for it creates a common forum for checking whether the orders of the court have been complied with. It was unnecessary for applicant’s counsel to seek assistance abroad in other jurisdiction in this regard on a matter so basic or commonplace whereas the practice of our courts in such matters would have satisfactorily contained the seeming procedural lacuna. In the absence of any form in our law, it would have been sufficient if the document was prefaced or headed with the General Form of Title of proceedings in the High Court and immediately thereafter the information as ordered would be set out and the said document signed by the applicant or by the counsel acting on behalf of the party supplying the information. In my view, therefore, an ordinary letter written by the applicant or her counsel to the opposing party or his counsel cannot constitute proper compliance with the order to supply the information sought. But if that was the only complaint for which the application was opposed, that would be viewed as unreasonable or undue adherence to technicality. I would not have allowed such technicality to defeat or becloud the justice of the case, bearing in mind that there is today a distinct shift of emphasis from undue adherence on technicality to doing substantial justice between the parties.

Again, I have looked at the reason for the delay. It was clearly averred in paragraph 5 of the supporting affidavit. By way of emphasis, I reproduce it again:

“My counsel informs me that it took him that time to make up his mind whether to supply the particulars or to appeal against the said order of this court.”

This assertion was not challenged in the counter-affidavit of the respondent. Ordinarily, I would have accepted it as good and cogent reason for the delay on the part of the applicant to justify the grant of her prayer, bearing in mind that it has been long settled that generally courts do not punish a litigant for the blunders, negligence or inadvertence of his counsel unless the reason for the delay is unjustified. See Bowaje v. Adedeiwura (1976) 6 S.C. 143 at 147; Olarinde v. Olarinde (1993) 7 NWLR (Pt.307) 629 at 638 and Erinfolabi v. Oke (1995) 5 NWLR (Pt.395) 296.

Unfortunately, the complaint in the instant case has its own peculiarity. There is first the need to examine closely the court’s order for the supply of certain information as decreed by this court which, for proper evaluation and scrutiny, should be kept in focus. The order, inter alia, runs thus:

“I hereby order the petitioner/respondent to furnish the appellant within 14 days from the date of delivery of this judgment, the full name or names, occupations and present address (or addresses) of the person or persons alleged to be the put alive father of each of the two children of the marriage, failure to supply the said information as prescribed hereof, the said paragraphs 8 and 9 of the amended petition shall be struck off or be deemed to have been struck off and shall cease to be considered as part of the amended petition.” (Italics is supplied).

It seems to me that the crucial part of the order of this court while allowing the appeal against the judgment of the learned Chief Judge. Justice Eze Ozobu, who had ordered non-disclosure of the natural father to the children of the marriage, is the penultimate sentence of the last page in the last paragraph. For easy reference and identification, that excerpt of the judgment is underlined. By its tenor, serious legal question in relation to this application, arises, namely, can the failure to supply the said information within the specified period be perfected or complied with through an order of enlargement of time to do the very thing as earlier ordered by this court in its judgment? This appears to be the crux of the matter because while Mr. Anyamene SAN, learned counsel for the applicant, with Mrs. Etoniru, who ably held the fort for him during the oral hearing, was of the firm view that such lapse on the applicant’s part is curable by amendment, nevertheless Mr. Okolo SAN, learned respondent’s counsel stiffly submitted to the contrary and further submitted that in the circumstances of this case, and having regard to the tenor of its order, this court has become functus officio and, therefore, was incapable of attending to the application without being caught in the web of sitting on appeal over its own judgment, keeping in mind, particularly the variation in the panel that delivered the judgment and the present one hearing the application. It was to this line of submission that Mrs. Eloniru promptly responded, relying on the various constitutional provisions and orders of this court and submitted that the application was to the court (meaning this court) and not to the panel. No doubt, I am attracted to Mrs. Etoniru’s submission on this line of submission that the application must be seen as an application to the court and the issue of the application to the panel may only become consequential if the matter was part-heard and must of necessity, be concluded by the very same panel that started it unless the second panel were to hear the mater de novo. That, of course, is not the situation that exercises us at the moment.

As I had earlier observed, it is the wording or tenor of the order of the court in its judgment dated 15/6/94 that has given rise to this state of impasse. By this rather stiff order of the court – I say this advisedly – my understanding of same is that the order is in peremptory terms and must be so construed to mean that in the event of non-compliance with same there will be no return to status quo because the court has carefully interwoven in its judgment the inevitable consequence of disobedience to its order. This is a very subtle order and must be so recognized by anyone called upon to expatiate on, or interpret it. The reason for such a comprehensive order may not be difficult to ascertain. Here is a divorce matter that has a chequered history. It was filed in 1987, over eight years ago and the respondent is yet to file an answer to the amended petition nevertheless both the lower court and this court have been inundated with several interlocutory application.

Against the background of matters raised herein, what then is the option open to this court? As I had noted earlier in this ruling, ex facie, and as couched, this is a simple application for extension of time within which to do that which was previously ordered by the court, the time for doing so having expired. Can the court grant the applicant’s request without tinkering with the earlier judgment of this court wherein the order stipulated when the information sought should be supplied or the build-in consequence would follow automatically? No doubt, it is the law under the doctrine of stare decisis, that this court is bound by its earlier decisions and for that matter, even the decisions of another Division of this court. There is however this qualification as laid down in Young v. Bristol Aeroplane Co. Ltd. (1944) 2 All NLR 293 at 300, namely:

“(1) the Counsel of Appeal entitled and bound to decide which of the two of conflicting decisions of its own it will follow.

(2) the court is bound to refuse to follow a decision of its own which, though not expressly overruled, cannot in its opinion stand with the decision of the Supreme Court.

(3) the court is not bound to follow a decision of its own if it is satisfied that the decision was given per incuriam”

The case on hand cannot be subsumed under any of the above situations.

The only narrow issue that calls for close examination is whether this court can vary its earlier order? The powers of this court to vary its earlier judgment or order is confined to the effect of the provisions of order 5 rule 3 of the Court of Appeal Rules 1981 which state:

“The court shall not review any judgment once given and delivered by it save to correct any clerical mistake or some error arising from any accidental slip or omission, or vary the judgment or order so as to give effect to its meaning or intention. A judgment or order shall not be varied when it correctly represents what the court decided nor shall the operative and substantive part of it be varied and a different form substituted.”It is therefore clear from the above provisions that such power is circumscribed and narrow. Thus except for what is generally known as the powers under the “slip rule”, this court can only vary its judgment to attend to its clerical mistakes, errors arising from accidental slip or omission or to vary an order so as to give effect to its meaning. See Asiyanbi & Ors. v. Adeniji (1967) 1 All NLR 82. Order 5 Rule 3 envisages correction of errors in a judgment or order. No such error has been raised nor could any such error be urged on us. The present panel as constituted, as earlier noted, is a different panel, though of the same court. In my view, the new panel will be powerless and lacks jurisdiction even under the subterfuge of making some corrections pursuant to order 5 rule 3 embark on elaborate exercise of altering the judgment of an earlier and different panel.Can the present panel in the guise of exercising powers under order 5 rule 3, make a fresh order, or ignore the order of the earlier panel and make all order inconsistent with the order of the earlier panel? To do so will undermine the very cardinal principle of stare decisis. It will create uncertainty in the law. It is true that from the tenor of the application on hand there is no express or positive prayer for any variation of the order in the judgment of the earlier panel of this court, nevertheless, the consequence of acceding to the present prayer for extension of time is an oblique invitation to the present panel to make an order that would materially and fundamentally make an earlier order of this court ineffectual, and as previously observed, the fact that the earlier panel of this court is different from the new panel is of no moment.

To my mind, therefore, the default on applicant’s part has a far-reaching consequence. Indeed, by operation or force of the court’s judgment, the controversial paragraphs 8 and 9 of the amended petition are deemed struck off. Common sense at this stage dictates – so also logic – that the court that made this rather stringent order cannot revisit its order in this regard without appearing to be sitting on appeal over its judgment, and in fact doing so unwittingly. In other words, the applicant’s default in carrying out the order to supply the requested information creates a new complexity to the nature of the applicant’s amended petition, which, for all intents and purposes, would for now be regarded as further amendment of her pleadings shorn of its paragraphs 8 and 9 consequent to that vexed order of the court.

I will not end this ruling without making a brief observation. As earlier noted, this case has protracted for over eight years without much to show for it. The applicant’s position is afterall not too gloomy as it seems because even on the face of the incompetence of this application, applicant may still, in an application to amend her pleadings in the lower court, seize the opportunity to attend to the problem posed by paragraphs 8 and 9 of the amended petition. This seems to be a sensible approach in the wider interest of justice for ensuring that this suit rakes off expeditiously.

For all I have been saying, I am clearly of opinion that this application is unsustainable. It fails. Accordingly, I dismiss it with N500 costs in favour of the respondent.

Other Citations: (1995)LCN/0221(CA)