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.