FESTUS IBIDAPO ADESANOYE (RESPONDENT/APPELLANT)

v.

COMFORT MOROLAYE ADESANOYE (PETITIONER/RESPONDENT)

(1971) All N.L.R. 124

Division: Federal Supreme Court

Date of Judgment: 15th April, 1971

Case Number: Suit NO. SC. 184/1970

Before: Ademola, C.J.N., Madarikan, Udoma, JJ.S.C.

Appeal from the High Court (Lagos).

HELD:

(1)     Custody of children and maintenance are interlocutory matters for the purpose of appeal, and where it is desired to appeal from an interlocutory order made in open Court, leave must generally be obtained from the judge or the Court of Appeal, except under the Supreme Court of Judicature (Consolidation) Act, 1925-Section 31(1)(i)-Liberty of the subject or custody of an infant.

(2)     The Supreme Court is not bound by the above provisions of the Supreme Court of Judicature (Consolidation) Act, 1925.

(3)     The judge was clearly in error in the Addendum he made to his judgment-the petition for divorce not having been filed till October 1969, there was no case of granting any arrears of maintenance prior to the date of the petition.

(4)     There was nothing more to argue on the appeal since the matter of custody of the children and the grant of allowance to the children were not contested in the court below.

PER CURIAM:

The reason why an order for maintenance and custody is treated as interlocutory is the want of finality because it is subject to revision by the court which made the order. Such orders, though on the face they appear final, are subject to subsequent revision, suspension or modification by the court which pronounces them.

Appeal dismissed.

Cases referred to:

Chinchen v. Chinchen, (1950) W.N. 22 C.A.

In re W. (An infant), (1953) 2 All E.R. 1377

Re W. (Infants), (1956) Ch. 284; (1956) 1 All E.R. 368 C.A.

Act referred to:

Supreme Court of Judicature (Consolidation) Act, 1925 s. 3(1)(i).

APPEAL FROM THE HIGH COURT (LAGOS).

Suit NO. SC. 184/1970.

Akinrele for the Respondent/Appellant.

Chief Williams for the Petitioner/Respondent.

Ademola, C.J.N (delivering the judgment of the court):-The appellant in this matter was the respondent in an undefended petition for dissolution of his marriage by the wife petitioner. It appeared he did not enter appearance nor file a defence, his application for leave to stay the hearing was dismissed on the ground that the husband/respondent deliberated did not conform with the rules of court and in any case showed no intention to defend the petition. In the event, the petition was hear and a decree nisi was ordered. The appellant has not appealed against the dissolution of his marriage with the respondent by the has appealed against the orders made by the learned judge for custody of the children as well as maintenance.

The orders make by the learned judge are as follows:-

"I order a decree nisi, to made absolute within three months from date. I award the custody of the two children of the marriage to the respondent. I also order that respondent should be responsible for the payment of the school fees for the two children at Adrao International School at Victoria Island Lagos, and Corona School, Ikoyi respectively. In addition I order that he should pay for the maintenance of each child a sum of £15 for their upkeep, clothing and other necessities. The maintenance should be paid on the 1st day of each month. I award costs assessed at 75 guineas in favour of the petitioner inclusive."

The orders were made on the 25th November, 1969, It would appear that after making these orders Counsel for the petitioner asked for arrears of maintenance. The learned judge then added the following to his judgment and orders:-

"With regards to the orders for maintenance these would include the arrears in the case of the younger child as from 23rd January, 1964 at the rate of £15 per month and the second child (older) as from September 1969."

The appeal before us is in respect of these several orders.

The three grounds of appeal are as follows:-

(a)     That the learned trial Judge erred in law and on facts in ordering maintenance "in the younger child as from 23rd January, 1964 at the rate of £15 per month when the evidence and the pleadings show that the said child had not been born at that date.

(b)     That the learned trial Judge erred in law in awarding custody of the children mentioned in the petition to the "respondent" presumably petitioner without any investigation as to the arrangement for the children and any recording as to the satisfactoriness of such arrangement or that it is best in the circumstances.

(c)     That the learned trial Judge erred in law in awarding the sum of £15 each in case of the children, without evidence as to the needs and requirements of each child or alternatively in not directing himself to the disparity in age and need of the two children.

Chief F.R.A. Williams for the petitioner filed a notice that the petitioner (respondent in the appeal) would at the hearing raise a preliminary objection "that the part of the decision appealed from was interlocutory and no leave to appeal therefrom was obtained as required by law."

In regard to the objection taken on the ground that custody of children and maintenance are interlocutory matters, Mr Akinrele for the husband respondent said that the court should do what is right and just in the matter. We hold the view that maintenance and custody are interlocutory matters-see Rayden on Divorce, 10th Ed. at page 791 note (a). Orders for alimony, maintenance etc. or for custody are deemed to be interlocutory orders for the purpose of appeal. At page 785 paragraph 13 of Rayden (supra) it is said:-