ALLIED INT’L INDUSTRIES LTD & ANOR V. ECOBANK (NIG) LTD & ANOR

Legalpedia Citation: (2023-02) Legalpedia 35872 (CA)

In the Court of Appeal

Holden at Abuja

Fri Feb 24, 2023

Suit Number: SC.517/2014

CORAM

CHIMA CENTUS NWEZE JUSTICE SUPREME COURT

UWANU MUSA ABBA AJI JUSTICE SUPREME COURT

MOHAMMED LAWAL GARBA JUSTICE SUPREME COURT

HELEN MORONKEJI OGUNWUMIJU JUSTICE SUPREME COURT

EMMANUEL AKOMAYE AGIM JUSTICE SUPREME COURT

PARTIES

ALLIED INT’L INDUSTRIES LTD & ANOR

APPELLANTS

ECOBANK (NIG) LTD & ANOR

RESPONDENTS

AREA(S) OF LAW

CIVIL LAW AND PROCEDURE, CONSTITUTIONAL LAW, JUDGMENT, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

The appellants commenced an action before the High Court of Kano State claiming declaratory and monetary reliefs. The defendants were, duly, served with all the processes.

Sometime in 2010, learned counsel for the appellants approached the trial Court requesting that the matter be set down for hearing. Accordingly, appellants’ application was granted and a date was fixed for hearing on October 12, 2010. The plaintiffs’ counsel failed to appear in Court. The suit was, therefore, struck out for want of diligent prosecution.

The first and second respondents, as plaintiffs, brought application ex parte to relist the suit that was struck out. The appellants were, naturally, not put on notice since the application was filed ex parte. The trial Court granted same. It proceeded to hear the matter and eventually entered judgment in favour of the respondents on October 27, 2011.

The first respondent’s contention was that it was not aware of the judgment until when the Bailiff of Court went to its premises to levy execution on November 11, 2011. This awareness prompted an application to set aside the judgment of the trial Court which the first respondent alleged was entered in default of appearance. The first respondent also prayed for a restraining order against the execution by the Chief Registrar of Kano State High Court. The trial Court heard the application but refused to grant same. Instead, it stayed further execution of the judgment of the Court.

Disenchanted with the decision of the trial Court, the first respondent lodged an appeal before the Court of Appeal, Kaduna Judicial Division, via a Notice of Appeal. In response, the appellants, who were the respondents at the lower Court, raised a preliminary objection to the first respondent’s Grounds of Appeal.

The preliminary objection was taken by the Court of Appeal who ruled that the said objection was misconceived. Furthermore, the lower Court set aside the judgment of the trial Court on the ground that it was entered in default of appearance. It allowed the appeal and struck out the suit before the trial Court. This situation prompted the present appeal before this Court.

HELD

Appeal dismissed

ISSUES

Ø Whether the lower Court of appeal has discharged its duty in determining the preliminary objection before it, by thoroughly examining the grounds of appeal before it to warrant seeking its leave for proper assumption and invocation of jurisdiction?

Ø Whether in the circumstances of this case, the lower Court was right to have set aside the judgment of the trial High Court, and consequently strike out the suit?

RATIONES DECIDENDI

FINAL AND INTERLOCUTORY JUDGMENTS – MEANING OF FINAL JUDGMENTS AND INTERLOCUTORY JUDGMENTS

In Alor v. Ngene [2007] 17 NWLR (pt. 1062) 163, 168, this Court held that:

“In plethora of decided cases, this Court decided that in this country, if the order, decision or judgment of a Court finally and completely determines the rights of the parties in the case, it is final. But if it does not, it is interlocutory only. And in order to determine whether the decision is final or Interlocutory, the decision must relate to the subject matter in dispute between the parties and not the function of the Court in making the order. Therefore, the determining factor is not whether the Court has finally determined an issue but it is whether or not it has finally determined the rights of the parties in the claim before the parties…” [Italics supplied for emphasis] The Court continued at page 177, D – E:

“A final order envisages that it is a permanent order made by the Court and the parties in respect of whom or against whom the order is made cannot go back to the same Court to challenge or change that order. The Court is, by virtue of the order, functus officio and the only option to the parties is by way of appeal against that order.” [Italics supplied for emphasis]

A concurring judgment puts the point even more poignantly. At page 178, the concurring judgment noted that:

“Two tests have been laid down for determining whether or not an order of Court is final or interlocutory. They are (a) the nature of the application made to the Court; (b) the nature of the order made. In Nigeria, it is the nature of order test that has been constantly applied, If the order made finally disposes of the right of the parties, then the order is final. If the order does not, then it is interlocutory. An order is also regarded as final if at once affects the status of the parties for whichever side the decision may be given, so that if it is given for the plaintiff, it is conclusive against the defendant, if it is given for the defendant, it is conclusive against the plaintiff. In order to determine whether or not the decision of a Court is final or interlocutory, the decision must relate to the subject matter in dispute between the parties and not the function of the Court making the order. Omonuwa v. Oshodin [1985] 2 NWLR (pt. 10) 924.” [Italics supplied for emphasis]

Accordingly, by the nature of order test applicable in Nigeria, I iterate, just as the lower Court did, that the ruling of the trial Court on the application before it is a final decision. – Per C. C. Nweze, JSC

APPEAL – WHEN APPEAL IS BASED ON A FINAL DECISION

Thus, by virtue of Section 241 (1) (a) of the 1999 Constitution (as amended), the right of appeal conferred on an appellant is all – encompassing. Such an appeal is as of right without any strictures, interference or need for leave. It is immaterial whether the appeal is on a question of law or facts or mixed law and facts. The proviso is that such an appeal must be against the final decision of the Federal High Court, High Court of a State or the High Court of the Federal Capital Territory, sitting as a Court of first instance. The decision in Ault and Wiborg (Nig) Ltd v. Nibel Industries Ltd (2010) LPELR-639 (SC) provides more illuminating insights. Hear this Court:

“It is clear that the parties are at one that the judgment or the trial Court, for which the appellant desired to appeal, was a final decision. The provision of Section 241 (1) (3) of the stated 1999 Constitution is applicable to this matter. It provides as follows:

241 (1) An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases: –

(a) final decisions in any civil or criminal proceedings before the Federal High Court or High Court sitting at first instance.

Learned counsel for the appellant submitted with force that when an appeal is from a final decision in a case or from a decision which has finally decided the rights of the parties in the proceedings in issue, the appeal is brought as of right. I agree with him. That is the correct statement of the law, Omonuwa v. Oshodin and Anor. (1985) 1 NSCC 147. It is more so since the proposed Grounds of Appeal involve questions of law alone touching on the legality or interests awarded by the trial Court. Refer to Section 241 (1) (b) of the 1999 Constitution, Adeyemi v. Y.R.S Ike-Oluwa and Sons Ltd (1993) 8 NWLR (pt. 309) 27, 43 D-E.

In a final decision, where the rights of the parties have been finally determined, appeal is brought as of right and where there is a right of appeal, no leave of Court is needed or desirable in my considered view.– Per C. C. Nweze, JSC