LEGALPEDIA ELECTRONIC CITATION: LER[2019] CA/L/808/2017

AREAS OF LAW:

Action, Appeal, Court, Jurisdiction, Party, Practice And Procedure

SUMMARY OF FACTS

The Respondent, filed a preliminary objection on the grounds that the Appellant’s notice of appeal is incompetent on the grounds that the Lower court delivered it ruling, striking out the Appellant motion seeking to join one Jacob Ladipo as Respondent (in an already concluded winding up suit) and to stay further proceedings in the suit, that the Appellant filed their Notice of Appeal against the ruling outside the 14 days period prescribed by the Court of Appeal Rules to appeal against an interlocutory decision and that the Appellant have not filed their Appellant brief within the 45 day provided by the rules. The Appellant and 3^rd & 4^th Respondent opposed the application. The Appellant contended that the decision of the lower court amounts to a final decision and hence no leave and renders the notice of appeal competent.

HELD

Appeal Dismissed

ISSUE FOR DETERMINATION

• Whether by the respondent incompetent notice of appeal filed on the 16t of May, 2017, the appellant can have any valid process filed before this honourable court?

RATIONES

APPEAL – DETERMINATION OF WHETHER AN APPEAL IS INTERLOCUTORY OR FINAL

“In deciding if the appeal is an interlocutory or final appeal, having agreed that the notice of appeal was filed 19 days after the ruling, the order refusing joinder and stay, the court went on to conclude judgement. Therefore, there is nothing left to do at the lower court nor stay, the application is spent. See Akinsanya v UBA Ltd (Supra); Akwa Ibom Ppty Invest Co Ltd v Udofel Ltd & Anor (Supra); Omonuwa v Oshodi (SUPRA); Ogolo v Ogolo (Supra). PER A.O.OBASEKI- ADEJUMO, J.C.A

 

INTERLOCUTORY DECISION – WHETHER LEAVE OF COURT IS REQUIRED TO APPEAL AGAINST AN INTERLOCUTORY DECISION OUT OF TIME AND EFFECT OF FAILURE TO OBTAIN SUCH LEAVE

This court held in Ihejirika & Ors v Iheanacho & Anor (2018) LPELR – 44821(CA) on Whether leave of Court is required to appeal against an interlocutory decision out of time and effect of failure to obtain such leave thus;

“The appellant filed two notices of appeal, one on 22-2-17 and the other on 17-3-17. In arguing the appeal, appellant’s counsel emphatically informed the Court that the appeal is founded on the notice filed on 17-3-17 which is contained at pages 88 to 94 of the record of appeal. He admitted that he did not obtain leave of Court to file his notice of appeal after 14 days because the ruling was a final decision of the trial Court. The Respondent urged the Court to hold that the notice of appeal was incompetent having been filed more than 14 days after the delivery of the ruling being appealed against. S. 24(2) of the Court of Appeal Act reads as follows: (2) The periods for the giving of notice of appeal or notice of application for leave to appeal are:- (a) In appeal in civil cause or matter, fourteen days where the appeal is against an interlocutory decision and three months where the appeal is against a final decision. The Supreme Court per Karibi-Whyte, JSC in Igunbor vs. Afolabi (2001) NWLR (pt.723) 148 in very clear terms set out the distinction between an interlocutory and final order or judgment when he said “A final order or judgment at law is one which brings to an end the rights of the parties in the action. It disposes of the subject matter of the controversy or determines the litigation as to all the parties on the merits. On the other hand, an interlocutory order or judgment is one given in the process of the action or cause, which is only intermediate and does not finally determine the rights of the parties in the action. It is an order which determines some preliminary or subordinate issue or settles some steps or question but does not adjudicate the rights of the parties, in the action. However, where the order made finally determines the rights of the parties as to the particular issue disputed, it is a final order even if arising from an interlocutory application.” See also Ebokam vs. Ekwenibe & Sons Trading Co. (1999) 10 NWLR (pt. 622) 242, Alor & Anr. Vs. Ngene & Ors. (2007) 17 NWLR (pt. 1062) 163, Chief Olisa Metu vs. FRN & Anr. (2017) 4 NWLR (pt. 1554) 108, Ogolo vs. Ogolo (2006) 5 NWLR (pt. 972)163. The ruling being challenged did not determine the rights of the parties in the suit. It is clearly interlocutory. The appellants had only 14 days within which to file their notice of appeal. The appellant’s notice of appeal was filed 31 days after the delivery of the ruling. They did not seek nor obtain extension of time within which to appeal. The notice of appeal filed on 17-3-17 was clearly incompetent. This appeal is struck out for want of competence.”per AGBO, J.C.A (PP. 1-3) PARAS. E-F

• PER A.O.OBASEKI- ADEJUMO, J.C.A

 

INTERLOCUTORY DECISION – WHETHER THE DECISION OF A COURT UPHOLDING ITS JURISDICTION IS A FINAL OR AN INTERLOCUTORY DECISION

“This court further stated in the case APC v John & Ors (2019) LPELR – 47003 (CA) on Whether the decision of a Court upholding its jurisdiction is a final or an interlocutory decision; whether leave of Court is required to appeal against same, thus;

“The 1^st  & 2^nd  Respondents challenge to grounds 1, 2 and 5 of the Notice of Appeal is on the basis that the said grounds relate to an interlocutory decision of the lower Court for which leave was required to appeal on the said ground. The Appellant objected to the competence of the action at the lower Court and the jurisdiction of the lower Court to entertain the same. The lower Court incorporated the decision on the preliminary objection in the judgment in the matter whereby it upheld its jurisdiction and dismissed the preliminary objection. Doubtless, the scarified grounds of appeal are in respect of the decision of the lower Court on the issue raised in the preliminary objection filed by the Appellant. The right of appeal conferred by Section 241 (1) of the 1999 Constitution provides for appeals as of right against final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance.

The 1st & 2nd Respondents’ contention, as I understand it, is that the decision of the lower Court upholding its jurisdiction and dismissing the preliminary objection is an interlocutory decision, for which leave is required before an appeal can be filed against the decision. It is no doubt the law that an appeal against an interlocutory decision, except where the grounds of appeal are grounds of law alone (see Section 241 (1) (b) of the 1999 Constitution), shall be with either the leave of the trial High Court or the Court of Appeal as stipulated in Section 242 (1) of the 1999 Constitution. By all odds, no leave was obtained before the Appellant filed its appeal, so if the decision appealed against is an interlocutory decision and the grounds of appeal are not grounds of law alone, then the appeal will be incompetent. But is the decision appealed against an interlocutory decision as argued by the 1st & 2nd Respondents We will find out in a trice. The question of when a decision is final or interlocutory is one which has agitated the Courts over the years, whether it is to be decided based on the nature of proceedings or application at which the decision is arrived at or based on the nature of the order made by the Court. Happily, the apex Court has laid the matter to rest and the applicable test in Nigeria is the nature of order test. In Poatson Graphic Arts Trade Ltd v. NDIC (2017) LPELR (42567) 1 at 6-9, this Court (per OGAKWU, JCA) stated:

“Central to the resolution of this first ground of objection is whether the decision of the lower Court was final or interlocutory…”

The decision of the lower Court was in respect of an application to dismiss the counterclaims of the Respondents. The lower Court allowed the application and dismissed the said counterclaims for being statute barred. It seems to me that the decision of the lower Court dismissing the counterclaims finally disposed of the rights of the parties in so far as the counterclaims were concerned and there remained nothing for the lower Court to determine in so far as it relates to the counterclaims. See Akinsanya v UBA (Supra); IGUNBOR v AFOLABI (Supra) and Odutola v Oderinde (Supra). Consequently, notwithstanding that the decision of the lower Court was in a Ruling delivered upon an interlocutory application the material consideration is not the function of the lower Court which delivered a Ruling, but the nature of the order made. Where, like in this case, the order is a dismissal, then it is a final decision. The test of determining whether a decision is final or interlocutory is now very well settled. In Alor v Ngene (2007) 17 NWLR (PT 1062) 163 at 178, Tobi, JSC stated:

“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.”

I iterate that the decision of the lower Court dismissing the counterclaim related to the subject matter of the dispute between the parties in the Appellants’ counterclaims and it finally disposed of the rights of the parties in the said counterclaims. Accordingly, by the nature of order test applicable in Nigeria, it is a final decision: Omonuwa v. Oshodin (1985) 2 NWLR (PT 10) 924; Abubakar v Dankwambo (2015) LPELR (25698) 1 at 22-23 (CA) and Dankwambo v Abubakar (2015) LPELR (25716) 1 (SC). In the circumstances, applying the nature of order test, the question is whether the decision of the lower Court on the question of jurisdiction has finally determined the rights of the parties on the issue, It is not whether the decision finally disposed of the rights of the parties in the substantive action, see Igunbor v Afolabi (2001) 11 NWLR (PT 723) 148 and Western Steel Works Ltd v Iron & Steel Workers Union (1986) 2 NWLR (PT 30) 617. Without a doubt, the decision of the lower Court that it has jurisdiction concluded the rights of the parties on that issue. The parties can no longer approach the lower Court for anything else on that issue. The lower Court is functus officio on the issue and it is therefore a final decision. In Ugo V. Ugo (2017) LPELR (44809) 1 at 20-21, Onnoghen, CJN stated:

“Once a Court, in considering an interlocutory application challenging its jurisdiction, comes to the conclusion that it has jurisdiction to hear and determine the substantive matter, that decision is a final decision of the issue of jurisdiction as that Court cannot lawfully revisit the issue again in the same proceeding. The Court thereby becomes functus officio on the issue irrespective of the fact that the decision arose from an interlocutory proceeding. By coming to the conclusion that the Court had jurisdiction to entertain the petition for divorce, it had finally decided the rights of the parties as regards its jurisdiction.”

In his contribution at pages 24-26, His Lordship, Kekere-Ekun, JSC, stated: “The issue in contention is whether the decision of the trial Court in the circumstances was a final or interlocutory decision” Addressing this vexed issue in Alor v Ngene (2007) 17 NWLR (PT 1062) 163 at 175 F – H, (2007) 5 SC 30, His Lordship Kalgo, JSC held:

‘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’.

His Lordship 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.’

per Niki Tobi, JSC at 179 – 180 H-A (Supra):

‘A decision is said to be final when the Court that gave the decision has nothing else or nothing more to do with the case; to the extent that the Court becomes functus officio, a Latinism which literally means “having performed his or her office”.

In the context of the Judge, it means that the duty or function that the Judge was legally empowered and charged to perform has been wholly accomplished and that the Judge has no further authority or legal competence to revisit the matter. See also: Ogolo v Ogolo (2006) 5 NWLR (Pt. 972) 173 at 187 C-H, (2006) 4 SCM, 147 per Onnoghen, JSC (as he then was). In the instant case, the trial Court having determined that it had the jurisdiction to entertain the petition had finally decided the rights of the parties as regards its jurisdiction and there could be no further reference to that Court in respect of that decision. Thus, even though the decision arose from an interlocutory application, the decision that the Court had jurisdiction to entertain the petition was a final one.

“I kowtow. The decision of the lower Court upholding its jurisdiction and dismissing the preliminary objection of the Appellant is a final decision. It is not interlocutory. Being final the Appellant could appeal as of right; it does not require the leave of Court under Section 242 (1) of the 1999 Constitution to appeal against the said decision.” per OGAKWU, J.C.A ( PP. 20-28, PARA. D).

• PER A.O.OBASEKI- ADEJUMO, J.C.A

PARTY TO AN APPEAL – WHO IS A PARTY TO AN APPEAL?

“In Nwosu v Ogah & Ors (2018) LPELR – 40851, the court defined, “Who is a party to an appeal’’, thus:

 “The appellant herein was a party at the trial Court in Suit No: FHC/ABJ/CS/71/2015 between Dr. Sampson Uchechukwu Ogah Vs. Peoples democratic Party (PDP) & 3 Ors. He contested that Suit as the 4th defendant even though joined to the suit upon his own application. It does not matter. He is still a party. Having therefore contested the suit as a party at the trial Court, the right of appeal thus reside in him if at the end, the decision of the trial Court was unfavorable to him and he needed to appeal against it, such person or persons cannot be shut out on account of the claim by the other person (s) stating that no relief was sought against him (appellant) at the trial Court and no order affecting him was made by that Court. To shut him out on this account is to deny him his right of appeal and right of hearing under Section 243 (a) read together with Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). So as party to the Suit No. FHC/ABJ/CS/71/2015 at the Court below, he is well qualified to appeal against that decision and be heard on issues arising from the decision in the exercise of his right to fair hearing. Even where he is not a party to the Suit, the person who can show that he has a legal interest in the subject-matter of the decision in the Suit now on appeal can with the leave of Court duly sought and obtained appeal against such decision. See: Ademola Vs. Sodipo (1992) 7 SCNJ 417, 428. In the instant case, the appellant is not just a person interested in the subject-matter to which the appeal relates, he has been a party to the proceedings at the trial Court and in exercise of his right of appeal can so appeal. See: Ezechukwu Vs. Madukwe (2011) LPLR-3772 (CA); ACN Vs. Labour Party (2012) LPELR-8003 (CA); Prof. Awojobi V. Dr. Ogbemudia (1983); Re Ugadu (1988) 5 NWLR 188, 203; Ikonne V. COP (1986) 4 NWLR 473. It is one thing for the litigant to exercise his right of appeal, while the validity of the complaint presented by him at the hearing of the appeal is another thing altogether. But to shut the litigant from presenting an appeal in a suit for which he is a party will at this stage translate to jumping the gun. It is like hitting the opponent below the belt and this is contrary to the rules of the game.” per HUSSAINI, J.C.A (PP. 27-29, PARA. A).”

• PER A.O.OBASEKI- ADEJUMO, J.C.A

BRIEF OF ARGUMENT – EFFECT OF FAILURE OF AN APPELLANT TO FILE HIS BRIEF OF ARGUMENT WITHIN THE TIME PRESCRIBED BY ORDER 19 RULE 2, OF THE COURT OF APPEAL RULES, 2016

“Order 19 Rule 2, of the Court of Appeal Rules, 2016 stipulated time frame to file the brief, being 45 days immediately after the record has been entered or regularized.

It does not stop the filing of additional records, amendments etc all these interlocutory applications are housekeeping applications to be done between the filing of the record and the actual hearing of the appeal. This moves the appeal faster, tidies the appeal and brings it forward and when the respondents files their brief they do not run the risk of having the appeal struck out or undefended, see Order 19 Rule 10(1) & (2) of the Court of Appeal Rules, 2016;

“1)     Where an appellant fails to file his brief within time provided for in Rule 2 of this order, or within the time as extended by the court, the Respondent may apply to the court for the appeal to be dismissed for want of prosecution,

2)       where an appellant fails to file brief within the time provided for in rule 2 of this order, or within the time as extended by the court, the court may suo moto dismiss the appeal for want of prosecution.’’

The long and short of the above is that it reduces the length of time for hearing appeals if briefs are filed timeously, see Re: Ita (2018) LPELR – 44875 (CA).

In Dangote & Anor v Yinusa (2018) LPELR – 44944 (CA), the court held thus;

“Order 19 Rule 2 of the Court of Appeal Rules, 2016 provides: “The appellant shall within forty – five days of the receipt of the Record of Appeal from the Court below file in the Court a written brief, being a succinct statement of his argument in the appeal”. Order 19 Rule 10(2) reads: “Where an Appellant fails to file his brief within the time provided for in Rule 2 of this order, or within the time as extended by the Court, the Court may suo motu dismiss the appeal for want of prosecution.”

The record of appeal in the instant appeal clearly shows that it was transmitted on the 7th of July, 2017 and the appellants’ brief of argument was filed on the 10th of October, 2017. By Order 19 Rule 2 of the Court of Appeal Rules, 2016, the appellants had forty five days to file their brief. From the 7th of July, 2017 when the record was transmitted to the 10th of October, 2017 when the appellants’ brief was filed, forty five days had elapsed and the appellants did not deem it appropriate to bring an application for extension of time to file the brief. Rules of Court are meant to regulate and provide guidelines for the conduct of proceedings before the Court. They are meant to assist the Court in its primary function of dispensing justice to the parties – KLM Royal Dutch Airlines Vs Aloma (2018) 1 NWLR (part 1601) 473 at 480. It follows therefore, that Rules of Court are not made for fun but meant to be obeyed. By Order 19 Rule 10(1) of the Court of Appeal Rules, 2016 where an Appellant fails to file his brief within time provided for in Rules 2 of this Order, or within the time as extended by the Court, the Respondent may apply to the Court for the appeal to be dismissed for want of prosecution……

See Reg. Trustees T.T.O.U. Vs Nigerian Union of Mines Workers (2014) 2 NWLR (part 1391) 287 at 290; Asalu Vs Dakan (2015) 13 NWLR (part 1475) 47 at 50; Asalu Vs Dakan (2006) 5 SC (part 3) 120; Kraus Thomson Organization Vs N.I.P.S.S. (2004) 17 NWLR (part 901) 44 and Evemili Vs State (2014) 17 NWLR (part 1437) 421 at 424…..”per HASSAN, J.C.A (PP. 7-12, PARAS. A-C).” PER A.O.OBASEKI- ADEJUMO, J.C.A

STATUTE REFERRED TO:

Court of Appeal Rules 2016