Helen Theresa Aneke V. Valentine H. Arewwe Aneke (1971)

LawGlobal-Hub Lead Judgment Report

MADARIKAN, J.S.C.

In the Lagos High Court, the present applicant, Helen Theresa Aneke (by her next friend, Victoria Aneke), filed an application on the 12th of November, 1970, under sections 70 and 71 of the Matrimonial Causes Decree, 1970, directed against the present respondent, Valentine Humphrey Arewe Aneke

‘to show cause why an order for maintenance and custody should not be made against him in respect of the child, Helen Theresa Aneke.”

For the reasons set out in his ruling given on the 8th of February, 1971, the learned Chief Justice of the High Court of Lagos State dismissed the application. Being dissatisfied with that ruling, the applicant filed a motion in this Court on the 13th of March, 1971, praying “for an order for extension of time within which to seek leave” of this Court to appeal against the ruling. At the request of counsel, the motion was adjourned sine die on the 22nd of March, 1971, pending the judgment of this Court in the case of F.I. Adesanoye v. C.M. Adesanoye (S.C. 184/70). Eventually, the Court delivered its judgment in that case on the 15th of April, 1971, and held the view that orders for alimony, maintenance etc. or for custody should be deemed to be interlocutory orders for the purpose of appeal. Thereafter, this matter was restored to the list and fixed for hearing on the 18th of October, 1971.

Before us, learned counsel for the applicant, Mr. Akinrele, relied on the decision in Adesanoye’s case to buttress his submission that the order of the learned Chief Justice dismissing the application for an order for maintenance and custody was interlocutory; and that the order being interlocutory, leave to appeal was necessary.

In reply, Chief Williams referred us to the ruling of this Court given on the 5th of October, 1970, in the case of O.O. Esua v. E.I. Esua (SC. 176/70) to the effect that section 76 of the Matrimonial Causes Decree, 1970 (hereinafter referred to as the Decree) confers a right of appeal from a decision of the High Court (which includes an order made by that court e.g. an order for maintenance or custody) in the exercise of its jurisdiction under the Decree as from the 17th of March, 1970, when the Decree came into force. It was Chief Williams’ contention that in view of Esua’s case, it was not necessary for the applicant in the present case to seek leave to appeal.

In our view, the matter now before us is easily distinguishable from Adesanoye’s case where both the date of the order for maintenance and the date of the notice of appeal against that order were prior to the 17th of March, 1971, that is, the date of commencement of the Matrimonial Causes Decree, 1970, so that there could be no question in that case that the provisions of section 76 of the Decree were inapplicable as the Decree was not in operation at the material time. It seems clear to us that the decision in Adesanoye’s case must be regarded as being limited to cases to which the Decree is inapplicable. But where, as in the present case, the decision of the High Court was given in the exercise of its jurisdiction under the Decree, we consider that we must follow the decision in Esua’s case that, by virtue of the provisions of section 76 of the Decree, there is a right of appeal to this Court and that no leave to appeal is necessary.

In the event, we have come to the conclusion that the applicant’s motion for an extension of time for leave to appeal was misconceived as no leave to appeal is necessary. That notwithstanding, we feel inclined to grant an extension of time within which to appeal in view of the peculiar circumstances of this case especially the fact that if this application had been considered and rejected when it first came 5 before this Court on the 22nd of March, 1971, the applicant would still have had ample opportunity to lodge her appeal within time.

It is hereby ordered that time within which the applicant may appeal against the decision of the Lagos High Court given on the 8th of February, 1971, in Suit No. M/186/70 by Taylor, C.J. be and is hereby extended till the 15th of November, 1971. There will be no order as to costs.

Application for extension of time within which to appeal granted.

SC.49/1971