Legalpedia Electronic Citation: LER [2018]SC. 118/2014

APPEAL NO: SC. 118/2014

AREAS OF LAW:

APPEAL, COURT, JUDGMENT AND ORDER, PRACTICE AND PROCEDURE, WORDS AND PHRASES,

SUMMARY OF FACTS

The Respondent had filed an application at the Failed Bank Tribunal against the Appellants who were Directors and promoters of the defunct Group Merchant Bank, in 1998. The application was for the recovery of debts owed by the said Bank. The matter was later transferred to the Federal High Court. The Appellants at the Federal High Court filed an application for an order joining the Central Bank of Nigeria as a Defendant in the suit and an order striking out their names, and substituting them with some other “persons/organizations”. The Federal High Court dismissed the application on 24/2/2009. Dissatisfied, the Appellants appealed to the Court of Appeal, while the Respondent filed a Notice of Preliminary Objection challenging the competence of the said appeal on the ground that it was filed outside the 14-day period allowed for appealing against an interlocutory appeal. In its Judgment delivered on 14/6/2013, the Court of Appeal, without going into the merits of the appeal, upheld the Objection, and struck out the appeal. Aggrieved, the Appellants appealed to the Supreme Court.  Whilst the interlocutory appeal was still pending, the Appellants filed before the court an application seeking to regularize their Brief of Argument, a Notice of Motion was filed by the Respondent praying that Grounds one and two of Appellants’ Grounds of Appeal, and the Notice of Appeal itself, be struck out. This judgment is with respect to the latter application.

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 HELD

Application Granted

 ISSUE FOR DETERMINATION

• Whether the decision of the Court of Appeal delivered on 14th day of June, 2013, was a final decision/Judgment having struck out the Appellants’ Notice of Appeal and the Appeal in its entirety?

RATIONES

DECISION OF COURT- DISTINCTION BETWEEN AN “INTERLOCUTORY” AND “FINAL” DECISION OF COURT

“The words “interlocutory” or “final” are not clearly defined in  any law, Rules of Court or the Constitution, which only defines the word “decision” as – 11 in relation to a Court, any determination of that Court and includes Judgment, decree, order, conviction, sentence or recommendation”. Thus, where the order, decision or Judgment finally and completely determines the rights of Parties in the case, it is a final decision. But where the order, decision or Judgment does not finally and completely determine the rights of the Parties in the claim before the Court, it is an interlocutory decision only”. PER A. A. AUGIE J.S.C

n.

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DECISION OF COURT – FACTOR IN DETERMINING WHETHER A DECISION IS FINAL OR INTERLOCUTORY

The Appellants are, therefore, right; the determining factor is not whether the Court has finally determined an issue but whether or not it has finally determined the rights of the Parties in the claim before it – see Owoh V. Asuk (2008) 16 NWLR (Pt 1112) 113 SC, Omonuwa V. Oshodin (1985) 2 NWLR (Pt 10) 924 SC, Akinsanya V. UBA (supra), Ifediorah V. Ume (1988) 2 NWLR (Pt 74) 5 SC and Igunbor V. Afolabi (supra), wherein Karibi-Whyte, JSC, explained:

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 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 step or question but does not adjudicate the ultimate 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”

• PER A. A. AUGIE J.S.C

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NOTICE OF APPEAL- STATUS OF A DEFECTIVE NOTICE OF APPEAL

“The originating process in all appeals is the Notice of Appeal, and it is settled that once it is found to be defective, the Court of Appeal ceases to have jurisdiction to entertain an appeal in whatever form – see Nonye Iwunze V. FRN (2015) 6 NWLR (Pt 1404) 580 SC.

In effect, a defective Notice of Appeal renders an appeal non-existent in the eyes of the law, This is because the Notice of Appeal sets the ball rolling for the valid and lawful commencement of an Appeal, therefore, any defect therein goes to the root of the appeal and robs the Court of jurisdiction to hear the Appeal – see Shelim V. Gobang (2009) 12 NWLR (Pt. 1156) 435, and FRN V. Dairo (2015) 6 NWLR (Pt 1454) 141 SC, wherein Nweze, JSC, observed –

Any virus in this process would, invariably, corrode or taint the entire appeal thereby rendering it incompetent. The effect of such a viral corrosion is, usually, far-reaching as it nibbles at the jurisdiction of the appeal Court which must, as of necessity, strike out such a process. In effect, the absence of a competent Notice of Appeal, simply, translates to the non-existence of an appeal.

• PER A. A. AUGIE J.S.C

NOTICE OF APPEAL – EFFECT OF A DEFECTIVE NOTICE OF APPEAL

“A defective Notice of Appeal, which is incompetent, affects not just the Appeal, but anything else that comes out of it – see Okpe V. Fan Milk (2016) LPELR- 42S62(SC), wherein I. T, Muhammad, JSC, said:

Law, they say, is an ass not minding, who will ride upon its back and to which direction, he will drive it All that is known is that it is not a respecter of persons. The position of the law will not change. Where it is valid, it remains so irrespective of whether it misleads anybody or not. The fact that no one complained that the Appellant or the lower Court was misled by the filing of a void originating process cannot be valid reason for allowing the void process to be acted upon. Once that validity or invalidity of the process is discovered by a person concerned or the Court, that process must be declared null and void, affecting, consequently, anything that comes out of it by way of Order, Ruling or Judgment

• PER A. A. AUGIE J.S.C.

STATUTE REFERRED TO:

None

 

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