Victor L. L. Coker Vs Victoria A. A. Coker (1963)

LawGlobal-Hub Lead Judgment Report

BAIRAMIAN JSC

This appeal is by the husband, who complains against the order made by Udo-Udoma, J., in the Lagos High Court, on the 7th January, 1963, on the wife’s application of permanent maintenance, which the learned judge granted.

At the hearing, it was objected on the wife’s behalf that as no leave to appeal had been obtained from what was an interlocutory order, the appeal could not be entertained. The Court was referred to the notes in the White Book below 0.58, r. 4; there is the case of In re W.- (Infants) [195611 Ch., 384, in which it was decided that an order like the one in hand was an interlocutory order; and there is Bellenden (formerly Satterthwaite) v Satterthwaite [ 1948] 1 All E. R. 343, the report of which shows that the appeal was brought as an appeal from an interlocutory order.In Ude and others v. Aga and others, (1961) 1 All N.L.R., Part 1, p. 65; [1961] 1 S.C.N.L.R. 98, the Federal Supreme Court decision is that the proper test is to look at the order made; if it finally disposes of the rights of the parties, it ought to be treated as a final order; if it does not, it is an interlocutory order.

In this case the order is –

“That the respondent do pay to the petitioner the sum of £20 per mensem by way of permanent maintenance during the joint lives of the petitioner and the respondent or until the petitioner remarries or until further order”.

The words “permanent maintenance” might be invoked for saying that it is a final order; but that is whittled down by the words “or until further order”. We think that we may safely take the view obtaining in England, that this type of order is interlocutory There was really no argument on the husband’s behalf.

His learned counsel referred us to 0. 1, r.5, of the Federal Supreme Court Rules, which provides that-

“The Court may enlarge the time provided by these Rules for the doing of anything to which these Rules apply, or may direct a departure from these Rules in any other way when this is required in the interest of justice.”

That relates to time and procedure: here we are concerned with the question whether the husband could appeal as of right under some provision made in that behalf by the legislature; but no such provision was referred to.

We must therefore rule that there is no appeal properly before the Court, and strike out what purport to be proceedings of appeal. They are struck out with ten guineas costs to the wife, the respondent in the proceedings.

OTHER CITATIONS: (1963) LCN/1042(SC)