Onwochei Odogwu Vs Otemeoku Odogwu (1992)

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G. KARIBI-WHYTE, J.S.C.

The application before us is seeking a stay of execution of a stay of execution. Onwochei Odogwu, the applicant is seeking an order for a stay of execution of the order made by the Court of Appeal, Lagos on the 20th June, 1991, pending the hearing and determination of the appeal lodged to the Supreme Court against the said Order. He is also asking for such other orders as this court may deem fit to make in the circumstances.

The nature of this application and the order to be made cannot be properly understood, unless and until the facts which have given rise to it are correctly stated. For this purpose the affidavit in support of this application dated 26th November, 1991, the affidavit of the Respondent in support of an application for accelerated hearing dated 4th December, 1991, counter affidavit of the Respondent in support of an application for a preliminary objection to the present application, dated 4th December, 1991, provide the necessary background to the consideration of the issues involved.

Applicant and Respondent were up to the 17th December, 1990 husband and wife. On that fateful day Adeyinka J of the High Court of Lagos State pronounced a decree nisi of dissolution of their marriage consequent upon a petition filed by the husband alleging adultery on the part of the wife. The learned Judge granted to the husband, custody of the three children of the marriage, namely, (1) Chibuzor Odogwu (male) (2) lfenkili Odogwu (male) (3) Chukwunye Odogwu (female). The order was that these children who were at the time with their mother, the Respondent, were to be delivered up to the Applicant, forthwith, but not later than the 21st December, 1990. The Respondent did not comply with this Order.

The Respondent filed a notice of Appeal against the decision of Adeyinka J of the High Court of Lagos State. She also sought a stay of execution pending appeal. The application for stay of execution was refused on the 16th January, 1991. On the same day when the application for stay of execution was dismissed by the High Court, an application for stay of execution of the judgment of Adeyinka J was made to the Court of Appeal. On the 23rd April, 1991, this application was struck out for want of prosecution. Applicant deposed in his affidavit that he took away the children who he found in a “run-down” taxi, to his house on the 23rd April , 1991, and they have since remained with him. Respondent filed another application for stay of execution dated 24th April, 1991 in the Court of Appeal. This application was heard and ruling delivered on the 20th June, 1991. The Court of Appeal in its ruling granted the stay of execution sought, and made the following Orders – that,

“the children should continue to remain in the custody ‘of the Applicant, subject to the following conditions:-

(1) That the Respondent shall have access to the children between now and the determination of the appeal now pending in this Court. Denial of such access by the Applicant shall constitute a breach of the order.

(2) The Appellant/Applicant shall take steps to accelerate the hearing of this appeal so that the appeal shall be ready for hearing on or before the 31st December, 1991.

(3) That on failure of condition (2) above, the Respondent shall be at liberty to apply to this Court for the setting aside of the order herein made.

(4) If as alleged, the Respondent has forcibly obtained custody of the children, he shall return them to the Applicant within seven days from today.”

This order number 4 is significant. The Orders of the Court of Appeal were, intended to stay execution of the judgment of the High Court granting custody to the husband, the Applicant in this case. At the time of the judgment of the High Court, the children were with their mother, the Respondent in this case. The effect of the Order of the Court of Appeal is that the children will remain in the custody of the Respondent pending the determination of the appeal against the judgment of the High Court. The Court of Appeal referred to the alleged forcible taking away of the children by the Applicant, and made an order that they should be returned to the Respondent within seven days. The order of the Court of Appeal granting stay of execution of the judgment of the High Court is that the children should continue in the custody of the Respondent till the determination of the appeal against that judgment.

Applicant was dissatisfied with the ruling of the Court of Appeal dated 20th June, 1991, an appealed to this Court. Applicant also applied on the 17th October, 1991 for a stay of execution pending the determination of the appeal against the stay of execution granted the Respondent by the Court of Appeal. The application was refused on the 21st November, 1991. Applicant has now brought this application.

I have already indicated that the 4th Order of the Court of Appeal is significant. The true significance could be deduced from the averments in the affidavits of the Applicant and Respondent. Applicant in paragraphs 25, 26, 27, 28 averred as follows:-

“25. That after the Petitioner’s application was dismissed in my presence in Court on 23rd April. 1991, and I saw my said three children in a run-down taxi and knowing how unsafe this was in view of the recent crisis of child kidnappings, I offered them the opportunity of going home with me as requested by them.