Claude Nabhan V George Nabhan (1967)
LawGlobal-Hub Lead Judgment Report
This is an appeal from the decision of the High Court of Western Nigeria granting a decree nisi for the dissolution of the marriage between the parties. No leave to appeal was obtained before the notice of appeal was given, and the respondent submitted that the decision was an interlocutory one and that an appeal did not lie as of right. Counsel for the appellant resisted this submission, but applied orally for leave to appeal and, this Court should accept it, and to give notice out of time, and on a subsequent date counsel addressed the Court on the question whether any appeal lay, even with the leave of the Court, from an interlocutory decision of the High Court of Western Nigeria on a matter contained in the Exclusive Legislative List. The two questions are distinct and the second will only arise if the respondent’s submission on the first is accepted.
In the course of argument reference was made not only to the existing law governing rights of appeal to this court, but to the law as it stood formerly, and we begin by setting out the statutory provisions relating to appeals from a High Court sitting at first instance that have been in force at various times. The Federal Supreme Court was established by the Nigeria (Constitution) Order in Council, 1954 (L N. 102 of 1954) and assumed its functions on the 1st January, 1956. The only right of appeal to the Court conferred by the Order in Council itself was in criminal cases involving a capital sentence (s. 148), and as a transitional measure the right of appeal in other criminal cases and in all civil cases continued to be governed by existing legislation and in particular by the former West African Court of Appeal Ordinance, which appears under the name of the Federal Supreme Court (Appeals) Ordinance as Chapter 67 of the Laws of the Federation and Lagos, 1958. Section 3 of that Ordinance (re-numbered as s.6 in the 1958 edition) reads as follows-
“An appeal shall lie to the court of appeal:
(a) from all final judgments and decisions of a High Court.
(i) given in respect of a claim for a sum of fifty pounds or upwards; or
(ii) determining, directly or indirectly, a claim or question respecting property or any civil right or other matter where such property, civil right or other matter is of the value of fifty pounds or upwards; or
(iii) from any decree nisi or absolute (made by a High Court), provided that no appeal from an order absolute for dissolution or nullity of marriage shall lie in favour of any party who, having had time and opportunity to appeal from the decree nisi on which such order may be founded, shall not have appealed therefrom; and
(b) by leave of the judge making the order, but not otherwise, from all interlocutory orders and decisions made in the course of any suit or matter;
Provided that no appeal shall lie, except by leave of the court making the order or of the court of appeal-
from an order made ex parte; or
from an order as to costs only; or
from an order made by the consent of the parties:
Provided also (immaterial).”
Paragraph (a) (iii) of this section is unhappily phrased, since the words “from any decree nisi or absolute (made by a High Court)” repeat the grammatical effect of the words “from all final judgments and decisions of a High Court.” Possibly the draftsman changed his mind as to the classification of decrees nisi and absolute. It is clear, however, that paragraph (a) conferred an appeal as of right from a decree nisi, and that paragraph
(b), which dealt with appeals with leave from interlocutory orders, used the words “Interlocutory orders” in a sense which excluded decrees nisi.
The Nigeria (Constitution) (Amendment No.3) Order in Council, 1959 (L.N. 228 of 1959) revoked and re-enacted section 147 and section 148 of the principal Order with effect from the 24th October, 1959, and conferred rights of appeal, either as of right or by leave, In a number of specified cases, leaving it to the competent legislature to confer wider rights if it saw fit. As regards decisions of a High Court other than that of Lagos, the competent legislature would be the Federal Legislature for matters contained in the Exclusive or the Concurrent Legislative List, and (subject to what is now section 69 (4) of the Constitution of 1963) the Regional Legislature for any matter not contained in the Exclusive Legislative List. The Nigeria (Constitution) (Amendment No.2) Orders in Council, 1957 (L.N. 117 of 1957) had inserted the following as item 22A in the Exclusive Legislative List:
“Marriages other than marriages under Moslem law or other customary law; annulment and dissolution and other matrimonial causes relating to marriages other than marriages under Moslem law or other customary law.”
The material provisions of section 147, as re-enacted in 1959, were as follows-
(1) The Federal Supreme Court shall have jurisdiction, to the exclusion of any other Court In Nigeria, to hear and determine appeals from the High Court of a Region.
(2) An appeal shall lie from decisions of the High Court of a Region to the Federal Supreme Court as of right in the following cases-
(a) final decisions in any civil proceedings before the High Court sitting at first instance:
(b) such other cases as may be prescribed by any law in force in the Region:
Provided that nothing in paragraph (a) of this subsection shall confer any right of appeal-
(a) from any order made ex parte;
(b) from any order relating only to costs;
(c) order made with the consent of the parties;
(d) in the case of a party to proceedings for dissolution or nullity of marriage who, having had time and opportunity to appeal from any decree nisi in such proceedings, has not so appealed, from any decree absolute founded upon such a decree nisi.
(3) Subject to the provisions of subsection (2) of this section, an appeal shall lie from decisions of the High Court of a Region to the Federal Supreme Court with the leave of the High Court or the Federal Supreme Court In the following cases-
(a) any case In which, but for the terms of the proviso to subsection (2) of this section, an appeal would lie as of right to the Federal Supreme Court by virtue of paragraph (d) of that subsection;
(b) such other cases as may be prescribed by any law in force in the Region”
These provisions were reproduced with minor verbal alterations as section 110(1), (2)(a), (f) and proviso and (4)(b) and (d) of the Constitution of the Federation, 1960, and as section 117(1), (2)(a), (f) and proviso, and (4) (b) and (d) of the Constitution of the Federation, 1963, and the Constitution of 1963 renamed this Court the Supreme Court.
The Amendment Order of 1959 did not expressly alter section 6 of the Federal Supreme Court (Appeals) Ordinance, though its effect was to remove the restriction on ordinary civil appeals where the value of the subject-matter was less than £50. The whole of section 6 was, however, deleted with effect from the 25th February, 1960, by the Adaptation of Laws (Miscellaneous Provisions) Order, 1960 (L.N. 22 of 1960) made under the authority of the Amendment Order of 1959, and what remained of the Ordinance was repealed with effect from the 2nd June, 1960, by the Supreme Court Act, 1960. The total repeal of section 6 was later seen to have been too drastic, and section 4 of the Federal Supreme Court (Miscellaneous Provisions) Act, 1961, after reciting in a preamble that it had been done inadvertently, restored appeals from interlocutory decisions of the High Court of Lagos by leave of that court or of the Supreme Court. No provision was made by Parliament for appeals from interlocutory decisions of the Regional High Courts even in matters contained in the Exclusive Legislative List, with respect to which Parliament alone could make laws.
These being the provisions of Nigerian law relevant to the first question arising in this appeal, we now turn to consider that question. The question is this – Is a decree nisi for the dissolution of a marriage a final decision for the purpose of section 117(2)(a) of the Constitution? Prima facie the word “nisi” – in English “unless” – suggests that the decision is not a final one. The rule nisi for one of the prerogative writs or some other relief is of great antiquity in English Law and we have not been referred to any case in which it has even been argued that a rule nisi calling on a party to show cause why the rule should not be made absolute is a final decision. Chief Williams has drawn our attention to the fact that in 1857, when the courts in England were first granted the power of dissolving a marriage altogether, there was a single decree, and that it was the Matrimonial Causes Act, 1860, that introduced the two stages of a decree nisi and a decree absolute. The conception of the rule nisi was already familiar to lawyers in other contexts, and, as we have said it would have been thought of as an interlocutory decision. The Parliament of the United Kingdom adopted this view in 1894 when it enacted the Supreme Court of Judicature (Procedure) Act, 1894, of which the material parts reads-
“1. (1) No appeal shall lie
(b) without the leave of the Judge or of the Court of Appeal from any interlocutory order or interlocutory judgment made or given by a judge, except in the following cases, namely-
“(iv)any decree nisi in a matrimonial cause and any judgment or order in an Admiralty action determining liability;.
(vi) such other cases, to be prescribed by rules of court, as may in the opinion of the authority for making such rules be of the nature of final decisions.”
This now appears as section 31 (1) (i), (iv) and (vi) of the Supreme Court of Judicature (Consolidation) Act, 1925.
Chief Williams also relied on various English decisions. In Hyman v. Hyman  p. 403, Jeune P., referred to the decree absolute as the one final decree in the suit, and although Farwell, L. J. In Brydges v. Brydges (1909) P. 187, suggests that he may have reservations as to this, he was considering the effect of an order for damages made against a co- respondent who had died after decree nisi and before decree absolute and the decision rested on other grounds. In Sinclair v. Fell  1 Ch. 155 it was held that coverture lasted until decree absolute, and in M. v. M.  p. 123 it was held that an order for alimony pendente lite continues in force until a decree nisi is made absolute, so that for that purpose there is still a lis pendens. It seems to us plain that a decree nisi cannot be regarded as a final decision for all purposes. The question is, whether it is a final decision for the purpose of section 117 (2) (a) of the Constitution.
Chief Davies adopted, in effect, what was said by Tucker L. J. in Peek v. Peek  2 All E.R. 297, as an obiter dictum, and submitted that a decree nisi was final inter partes, and should be treated as final for the purposes of appeal. It seems to be correct that in England a respondent who has failed cannot show cause against a decree absolute but must appeal against the decree nisi or apply for a new trial: Stoate v. Stoate (1861) 2 Swabey AND Tristram 384; and in this respect the decree nisi for dissolution of marriage differs fundamentally from the order nisi made on an ex parte application and calling on the party to whom it is addressed to show cause against the proposed order. Chief Davies further submitted that it should be presumed that the constitutional provisions for appeals were not intended to take away any rights of appeal conferred by the existing law, and that since, as he submitted, section 6 of the Federal Supreme Court (Appeals) Ordinance treated a decree nisi as a final judgment the words “final decision” in successive Constitutions should be Interpreted in the same way. As he pointed out, the words of the other paragraphs in the proviso to what is now section 117 (2) of the Constitution are taken without material alteration from section 6 of the Federal Supreme Court (Appeals) Ordinance, and this, he submitted, shows that the draftsman of the Constitution had the Ordinance in mind.
It is inaccurate, on any construction, to speak of the constitution as taking away existing rights of appeal. The Constitution merely lays down certain minimum rights of appeal and is not to be regarded as taking away any pre-existing rights which were not inconsistent with it. If the right of appeal from a decree nisi has been taken away it was by the Adaptation of Laws (Miscellaneous Provisions) Order 1960 and the legislature has already recognised that that Order inadvertently took away certain other rights which ft was Intended to preserve. The true state of the question is, whether the Constitution has secured the right to appeal against a decree nisi, and given it the special status of a right which cannot be taken away except by the special procedure required for an amendment to section 117 of the Constitution.
In deciding this question the cardinal rule is to look first at the wording of the statute which is being construed, and If that is found to be unambiguous ft is neither necessary nor permissible to look further. If section 117(2) (a) of the Constitution stood alone the court would have to construe the words “final decisions” simply by ascertaining the meaning commonly given to those words in relation to appeals. But the subsection must be read as a whole, and paragraph (iv) of the proviso must be considered:
“Provided that nothing in paragraph (a) of this subsection shall confer any right of appeal:-
(iv)In the case of a party to proceedings for dissolution or nullity of marriage who, having had time and opportunity to appeal from any decree nisi in such proceedings, has not so appealed, from any decree absolute founded on such decree nisi.”
A proviso admittedly cannot alter the plain meaning of the substantive enactment: Anya and Others v. The State (1965) N.M.L.R. 62; but where words are reasonably susceptible of more than one meaning a proviso may show which meaning they were intended to bear. If paragraph (a) did not confer a right of appeal from a decree nisi, paragraph (iv) of the proviso would be dealing with a case which could not arise unless Parliament exercised its power of conferring additional rights of appeal by providing for an appeal from a decree nisi. There is nothing to indicate that the legislature was merely providing against a possible contingency of this kind and since the proviso is only limiting the scope of paragraph (a) and not restricting the power of Parliament to confer further rights of appeal we find such a construction unacceptable.
We are therefore of the view that if section 117 (2) of the Constitution is read as a whole it is at least open to the court to hold that a final decision for the purpose of paragraph (a) Includes a decree nisi. This view derives support from a consideration of the pre-existing law as contained in the Federal Supreme Court (Appeals) Ordinance. On the propriety of considering this, Maxwell on Interpretation of Statutes, 11th edition, p.32 has this to say-
“Probably the rule as to the exposition of one Act by the language of another is satisfactorily and most comprehensively laid down in the broad statement of Lord Mansfield, that “Where there are different statues in pari materia, though made at different times, or even expired and not referring to each other, they shall be taken and construed together, as one system and as explanatory of each other.”
The book also cites Lord Russell of Killowen in R. v. Titterton  2 Q.B. 67 as stating the qualification that “it is proper to refer to earlier Acts in pari meteria only where there is ambiguity.” but ambiguity may be patent or latent and the rule is not confined to cases of patent ambiguity. There can be no objection to adopting this aid to construction merely because a Constitution and not an ordinary Act of Parliament is in question: in Bank of Toronto v. Lambe (1887) 12 App. Cap. 575 the Judicial Committee adopted John Stuart Mill’s definition of direct and Indirect taxes in constructing the British North America Act because, among other reasons, it was likely to have been present to the minds of those who passed the Federation Act. Nor do we think it a fatal objection that the Federal Supreme Court (Appeals) Ordinance was enacted by the Colonial Legislature and the Amendment Order of 1959 by Her Majesty in Council, since, as has been pointed out, the draftsman of the Order in Council adopted almost verbatim some of the words of section 6 of the Ordinance and clearly showed that he had taken note of it.
Matrimonial causes, with the various issues to which they may give rise (including status, property, alimony and the custody of children) are in a class of their own procedurally. If the Court were to hold that a decree nisi was a final decision for the purposes of appeal but not for the purposes of alimony pendente lite, as in M. v. M. it would not involve any new Inconsistency, since that was presumably the position while section 6 of the Federal Supreme Court (Appeals) Ordinance remained in force. In most of the English cases cited in the notes to 0.58 rule 4 in the Annual Practice for 1966, it does not seem to have been necessary to consider whether a decision might be final for some purposes and not for all, but the possibility is recognised in such cases as Salaman v. Warner and others  1 O.B. 734, and in In re Crompton (1884) 27 Ch.D. 392 the Court of Appeal held that an order made was interlocutory for the purpose of determining the time within which an appeal must be brought but final for the purpose of the ad-mission of fresh evidence, being, in the words of Cotton, LJ., “a final decision of the claim on the merits.”
To sum up, we hold that it is open to the Court on the wording of section 117(2) (a) of the Constitution to treat the decision appealed from in this case as a final decision for the purposes of that paragraph, and that a consideration both of the history of such appeals in Nigeria, and of the consequences to innocent persons which might follow If no appeal could be brought until after a decree absolute had effected a change in the matrimonial status of the parties clearly indicates that the intention of the legislature was to confer a constitutional right of appeal from a decree nisi. We adopt this construction of section 117(2) (a), over-rule the preliminary objection and direct that the appeal be heard on the merits. The appellant must have costs of the hearing of the objection, which we assess at 15 guineas.
One member of the court, while not formally dissenting, wishes it to be recorded that he has doubts of the correctness of our decision.
The second question does not now arise, but since is was fully argued we shall bring the matter to the notice of the authorities responsible for prescribing rights of appeal in Federal matters.
Other Citation: (1967) LCN/1530(SC)