Clement C. Ebokam V. Ekwenibe & Sons Trading Company Ltd (1999)

LAWGLOBAL HUB Lead Judgment Report

A. KALGO, J.S.C.

This appeal is against the ruling of the Court of Appeal (Lagos Division) delivered on the 23rd day of March, 1993 striking out the appeal of the appellant. The Court of Appeal held that the ruling of the learned trial judge delivered on 26th of July 1990 appealed against, was an interlocutory and not a final decision and no leave of the trial court or the Court of Appeal was obtained before filing the appeal which was filed about two and a half months after the delivery of the said ruling.

In the trial court, the Lagos State High Court, holden in Lagos, the respondent filed an application to set aside an arbitration award made by an arbitrator appointed by the said court in accordance with an agreement signed by the parties to this appeal. While the respondent’s application was still pending, the appellant filed his own application to enforce the arbitration award. These two applications were then consolidated and heard together by the learned trial Judge Famakinwa J. and in his reserved ruling delivered on 26th July, 1990, concluded thus:-

“For my reasoning in this case the logical conclusion in respect of the consolidated applications is that both applications failed. As I did not consider it necessary in the circumstances of the application to deal with the submissions of both counsel, I would strike out the two applications”. (italics mine)

The applications were thereafter struck out and the appellant, dissatisfied with the whole ruling, appealed to the Court of Appeal on fifteen grounds. The Notice of Appeal was filed on the 22nd of October 1990.

In the Court of Appeal, the parties filed and exchanged briefs in accordance with the rules of that court. In his brief, the respondent raised a preliminary objection in limine to the hearing of the appeal on the grounds that the appeal was not properly before that court and the Court lacked jurisdiction to entertain it. The learned counsel for the respondent also submitted in the brief that the ruling appealed against was interlocutory and not final and since the appeal was filed more than 14 days after the date of its delivery by the trial judge, and no leave was obtained from the trial court for the Court of Appeal before it was filed, the appeal was incompetent and should be struck out Counsel relied on the cases of:- Bozson v. Altrincham UDC (1903) 1 K.B. 547; Blay v. Solomon (1947) 12 WACA 175: Ude v. Agu (1961) 1 SCNLR 98; (1961) 1 All NLR 65 Omonuwa v. Oshodiin (1985) 2 NWLR (Pt.10) 924 Ocean Steamship (Nig) Ltd. v. C. Sotoninu (No.2) (1987) 4 NWLR (Pt. 67) 996.

The preliminary objection was then heard by the Court of Appeal, who after hearing counsel for both parties came to the conclusion per Ubaezonu JCA that:”

In the light of all the above, the decision or order of Famakinwa J, appealed against is not a final decision or order but interlocutory.Being an interlocutory decision, or order the appellant ought to have appealed within 14 days of the decision or order appealed against pursuant to S. 25 (2) (a) of the Court of Appeal Act, 1976. The order of the lower court was made on 26th July 1990. The appeal was filed on 22nd October, 1990 i.e about two and a half months out of time. The appeal is not properly pending before this court and is therefore incompetent. This court has no jurisdiction to entertain an incompetent appeal”. It finally found that the preliminary objection succeeded and the appeal was accordingly struck out. Hence this appeal.

The appellant filed six grounds of appeal with particulars, and on the 3rd of December 1993 he filed a brief of argument in support of his appeal. The respondent also filed a brief on 21st December 1994. Both parties exchanged their respective briefs between themselves.

In his brief, the appellant formulated five issues for determination of this court to wit:-

“1. Whether the Court of Appeal Justices, adopt the correct approach when they held that Ground 2 of the grounds of appeal was ground of law but then failed to relate it to section 220(1) (b) of the Constitution of the Federal Republic of Nigeria 1979 which permits an appeal in grounds of law without seeking for leave.

2. Did the Court of Appeal Justices, adopt the correct approach when they held rightly that Nigeria adopts the “Nature-of-the-Order Test” but failed to relate the said “Nature-of-the-Order Test” made to a case such as this when the High Court judge abdicated his responsibilities by asking the parties to pack and get out of his court and never pronounced on the case before him.
3. Did the Court of Appeal Justices not contradict themselves when on the one hand they held that Honourable Mr. Justice v. Famakinwa “decided nothing and was not prepared to decide anything” and yet turned round to hold that because the judge sent the parties and their counsel packing from his court, it was an interlocutory decision.
4. Is it not the law, (at least viewed from common sense) that when a judge sends parties and their lawyers packing from his court and does not intend at anytime again to treat with them in respect of the subject-matter for which they were sent packing, that the act or conduct of such a judge is a final decision. What then is the legal position when the judge in keeping to the oath of his ought to make Order but refuses (not omits) to make one We shall refrain from comments on the latter question. ‘
5. Is it not correct to state that the Court of Appeal did not give proper Interpretation to the where the Automatic Telephone & Electric Company Ltd. v. Federal Military Government (1968) 1 All NLR p. 429, Supreme Court of Nigeria held that where a judge did not give judgment but expressed an Opinion, that that Opinion so expressed amounts to a final decision in law and therefore appealable as of right without leave’”.

For the respondent three issues were set out as follows:-

“1. Whether the Court of Appeal Justices were wrong ‘under the circumstances of the case in holding that the ruling of the High Court Judge in this case was an interlocutory decision.

2. Having held that the judgment appealed against is an interlocutory decision, whether the appeal of the appellant could have been saved by mere fact that one of the unabandoned grounds of appeal is a ground of law by virtue of S. 220(1)(b) of the Constitution of Nigeria 1979, and taken into consideration the provisions of S. 222(b) of the same Constitution and S. 25 (2) (a) of the Court of Appeal Act 1976.
3. Whether the Court of Appeal left undecided any issue raised in the Preliminary Objection, or in the proceedings which is worthy of resolution”.

At the hearing of this appeal both counsel for the parties adopted their respective briefs and conceded that the main issue to be determined is whether the decision of the learned trial judge to strike out the applications before him was an interlocutory or final order. On this, the learned counsel for the appellant submitted that since the learned trial judge decided in his ruling that the two applications failed and he struck them out the effect was that he had considered the merits of both applications before striking them out. Learned counsel further submitted that with the striking out of both applications, the learned counsel for the respondent could not go back to the co un to have the arbitration award enforced and to that extent, the order was final and not interlocutory. The learned counsel for the respondent referred the court to the final order of the learned trial Judge, and submitted that the trial judge did not decide the applications on merit and that his decision to strike out the applications was interlocutory and not final.