Chief Hope Harriman V. Mrs. Irene Harriman (1989)

LawGlobal-Hub Lead Judgment Report

OMO, J.C.A.

This is an appeal against the ruling of Akhigbe, J., sitting in the High Court of Bendel State, Warri Division, granting the application of the respondent for a stay of proceedings in the Divorce petition filed by the Petitioner in that Court-Suit No.W/128/86, pending determination of an appeal pending in the Court of Appeal Lagos between the Petitioner and the respondent- Appeal No. CA/L/236/85 – against a decision of the High Court, Lagos in a matrimonial cause between the parties – Suit No.HD/58/83.

The relevant background facts for a proper consideration of this appeal may be stated as follows: On the 26/5/86 the appellant filed a divorce petition against the respondent in the High Court of Lagos State, Lagos Judicial Division – Suit No. HD/58/83, for a dissolution of their marriage contracted in July 1962 in Lagos.

After the case was set down for hearing and adjourned, the respondent applied for further and better particulars, which said application was dismissed by the Court. Leave to appeal against this dismissal was granted but the respondent failed to prosecute her appeal within time. Her consequent application for enlargement of time within which to prosecute same was dismissed by the Court of Appeal on 23/6/86.

On the same day, and after the court’s decision, the appellant filed a notice of withdrawal of his petition. On the 30/6/86, when the matter came up in court, the learned trial Judge struck out the petition despite the objection of respondent’s counsel as to “the mode of withdrawal.” Application was also made by respondent’s counsel for adjournment to enable respondent’s application to declare the notice of withdrawal void be properly brought before the court.

On 7/7/86 the respondent filed an appeal against the High Court decision of 30/6/86. This appeal has as yet not been determined.

Four days later, on 11/7/86, a fresh petition for dissolution of marriage between the parties was filed in the High Court at Warri. The respondent then filed an application in that Court praying that the new petition – Suit No. W/128/86 – be dismissed or alternatively for an order staying further proceedings therein until Appeal No.CA/L/236/85 aforementioned be determined.

On 10/11/86, Akhigbe, J., granted the alternative prayer mainly on the ground that:

(a) an appeal is pending at the Court of Appeal from a decision of the High Court of Lagos State challenging the striking out of the petition before that court; and so

(b) a matrimonial cause is pending in another court between the parties; and

(c) the subject-matter in both proceedings is the same, to wit, the dissolution of the marriage between the appellant and the respondent.

It is against this order that the appellant has now appealed to this court. Briefs were promptly filed by the parties, after which the appeal, being interlocutory and on a matrimonial cause, was taken out of its turn and listed for hearing. At the hearing counsel relied on their briefs and also addressed the Court in amplification of same.

Five grounds of appeal were filed in support of this appeal as follows:

“(1) The learned trial Judge erred in law when he failed to demonstrate in full a dispassionate consideration of the issues of law properly raised before him by failing to consider the nature of the appeal which formed the basis of the application for stay of proceedings which by law he was bound to do and thereby came to a wrong decision in the case.