ODOGWU V. ODOGWU

• Pages: 325-348

ODOGWU V. ODOGWU



325

would have been banned from so doing by the dismissal of their actions. The only

alternative would be their taking the law into their hands. I allow the appeal and

enter a non-suit in suits Nos. 0/18/71 and 0/13

3

/

7

1. I adopt the order as to costs

made by my learned brother, Uwais, J.S.C.

5



Appeal

dismissed.

10



ODOGWU V. ODOGWU

ONWECHEI ODOGWU



APPLICANT

V.

15 OTEMEOKU ODOGWU



RESPONDENT

APPEAL No. SC. 297/1991.

SUPREME COURT OF NIGERIA

KARIBI-WHYTE,



J.S.C.

20



KAWU,



J.S.C.

BELGORE,



J.S.C.

OLATAWURA,



J.S.C.

AKPATA,



J.S.C.

25 28th February, 1992.

30

Administration of justice -A party in disobedience of court order - Whether may be heard

on the same matter while still in disobedience - Applicable principle therein - Exceptions

thereto - Courts - Whether should exercise a discretion in favour of a party who is in

disobedience of a court order - The right to be heard - Whether availing for all purposes

- Judicial powers of the court - Scope of - Self help - Need to be deprecated at by the

court.

Matrimonial Causes -Custody of Children - principles guiding the grant of - interests

35



envisaged by section 71, M. C.A.

Practice and Procedure -A party in disobedience of court order - Whether may be heard on

the same matter while still in disobedience - Applicable principle therein - Exceptions

thereto - Court - Whether should exercise a discretion in favour of a party who is in

disobedience of a court order - Appeal - Whether operates as a stay - An order of stay

40



being disobeyed - Whether conduct contemptuous - Stay of execution - Applicable

principles therein.

ISSUES:

1.

Whether an applicant in contempt of a court order can seek the favour of the

45



court?

2.

Whether a disobedience of an order of stay of execution amounts to contempt?

FACTS:

Applicant and respondent were up to the 17th December, 1990 husband and

wife. On that day, the Lagos High pronounced a decree nisi of dissolution of their

marriage consequent upon a petition filed by the husband alleging adultery on the

50

326



NIGERIAN SUPREME COURT CASES

[1992] 1 N.S.C.C.

part of the wife. The High court also granted to the husband custody of the three

children of the marrige. 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 (wife) filed a notice of appeal against the decision of the trial

Judge. She also sought a stay of execution pending appeal. The application for

stay of execution was refused on the 16th of January, 1991. On the same day when

the application for stay of execution was dismissed by the High Court, an applica-

tion for stay of execution of the judgment of the High court was made to the Court

of Appeal. This application was struck out for want of prosecution on the 23rd April,

1991. The respondent filed another application for stay of execution dated 24th

April, 1991 in the Court of Appeal. The Court of Appeal, in its ruling on the

application, ordered that the children should continue to remain in the custody of

the wife, subject to some conditions.

Being dissatisfied with the Court of Appeal's ruling, the husband applied to the

Supreme Court for a stay of execution of the order made by the Court of Appeal.

HELD:

1.

The common law principle applied in our Courts' is that applicant cannot, whilst

continuing in contempt (of a court order), be heard to be seeking the favour of

the court.

(See p.335, lines 9 - 10).

2.

Where a valid order for stay of execution has been made, a disobedience of

such order amounts to contempt.

In the instant case, it is clear and undisputed that the act constituting contempt,

that is the forcible removal of the children, was made before the order of the

Court of Appeal was made. The disobedience consists in the refusal (on the 25

part of the applicant/husband) to comply with the order after it was made.

(See

p.335, lines 4 - 8).

3.

The common law rule precluding persons in disobedience of the orders of

court against them from being heard in respect of the matters which they stand

in disobedience is of respectable antiquity. The principle has, however, been 30

whittled down by exceptions. Thus where the order disobeyed was made

without jurisdiction or where the party in disobedience is challenging the

validity of the order, the principle does not apply.

(See p.333, lines 24 - 29).

4.

Whilst it may be conceded in a limited sense that a disobedience of the order

of the court

perse

(by an applicant) is not a bar to being heard, it is clearly



35

unarguable that where the disobedience or its continuance impedes the

course of justice in the cause by rendering it more difficult for the court to

ascertain the truth or to enforce the orders which it may make, then, the court

may in its discretion refuse to exercise its discretion in his favour until the

impediment is removed. It may also exercise its discretion if applicant can show 40

why the order of the court should not or cannot be obeyed.

(See p.336, lines

30 - 37).

5.

The Supreme Court should neither expressly nor by implication from its orders

endorse self help as a remedy nor should it ignore a flagrant disobedience of

its orders under the thin disguise of considerations of the interest of the children



45

of a marriage.

(See p.336, lines 12 - 15).

6.

The grant of stay of execution is entirely within the discretion of the court

making the order. For an applicant to be entitled to the exercise of the discretion

he must bring his conduct within the legitimate scope of the exercise of

discretion. Hence, where he (the applicant) is in continuing disobedience of



50

5

10

15

20