African International Bank Limited V. Packoplast Nigeria Limited (2003)

LawGlobal-Hub Lead Judgment Report

ISA AYO SALAMI, J.C.A.

This appeal was listed for hearing on 6th February, 2003 when the court suo motu raised the issue of its competence or otherwise. Learned counsel, sought and were obliged with adjournment to address the court, on the point raised, in writing. Both counsels prepared and exchanged written addresses which were adopted and relied upon at the hearing of the point raised.

For appreciation of the background against which the court called for addresses of counsel, it is pertinent, at this stage, to recall the events leading to this appeal. In the trial court, after pleadings had been settled, the respondent filed a motion on notice pursuant to Order 30 rule 3 of Kano State High Court (Civil Procedure) Rules,1988, asking for judgment to be delivered or entered in respect of the plaintiff’s claim which, it was alleged, had been admitted.

The defendant, being opposed to such judgment being entered in favour of the plaintiff and against the defendant, deposed to a counter affidavit.

The application for judgment upon admission was vehemently opposed and strenuously contested nevertheless learned trial Judge entered judgment in favour of the plaintiff in respect of the claim alleged to be admitted on the 1st day of July, 2002.

Being dissatisfied with the judgment entered against the defendant, it filed a notice and grounds of appeal on 5th day of July, 2002 needless to say within time and as of right. The record of appeal was subsequently duly compiled and briefs of argument filed and exchanged at appellant’s, respondent’s as well as appellant’s reply briefs.

In the course of hearing the appeal, the court raised the issue suo motu as to the competence of the appeal or otherwise and invited counsel to address it accordingly. The issue raised was as to the nature of the decision of the learned trial Judge delivered on the 1st day of July, 2002. The question was whether the same was a final or interlocutory decision in view of the fact that the balance of the plaintiff’s claim was still pending before the learned trial Judge and since whatever be the outcome of the appeal there would be something to return to in the High Court. If the decision were interlocutory, the appeal would have been filed in complete disregard of the express provisions of sections 241(1) and 242 of the Constitution and would have been incompetent and liable to being struck out otherwise it would be competent and would be entertained.

In response to the question, learned counsel for appellant contended that a decision is said to be final once, by its nature, it is conclusive that the party whom it affects is not allowed to further plead or adduce evidence against it before the trial court with a view to contradicting it. It was further contended that it is a final decision once the party affected is estopped from bringing afresh, the claim so determined before the same court. Learned counsel then submitted that the respondent’s application had in effect severed respondent’s cause of action into 2 independent causes of action.

He relied on the case of Kansas University Endowment Association v. King 162
Tex 599,350 SW 2d 11.19 and also Henry Campell Black MA 1990 Blacks Law Dictionary with Pronunciation 6th edition, Centenial edition 1891 – 1991 p. 1374.

I agree with the learned counsel for appellant that this court as well as the Supreme Court had held, in a number of cases, that the test to be applied for the purpose of determining whether a decision is a final or an interlocutory one was one which looked at the nature of the order made and not the nature of the proceedings. If the order determines the right of the parties it affects and conclusive on their rights so as to prevent the party whomsoever affected to further plead or adduce evidence against it before the trial court or court of coordinate jurisdiction with a view of upstaging it and such decision operates against, not only the party in the sense of revisiting the issue decided by the trial court, but also against the jurisdiction of the trial court in rendering it functus officio in reopening the issue or issues so settled.

Once the decision is so conclusive on the issue determined as to sustain a plea of the doctrine of estoppel per rem judicata it is a final decision. In other words, a decision is a final decision within the con of section 241(1)(a) of the Constitution once the party affected is estopped per rem judicata from bringing once again the claim already determined by the trial court before the same court and the jurisdiction of the trial court to entertain the same issue again is equally ousted.

In England, it seems from the notes in the Annual Practice to Order 58 rule 4 of the Rules of the Supreme Court of England that the Court of Appeal has, at different times, adopted two diverse tests for determination of whether a decision is an interlocutory or a final one for the purpose of an appeal. The test which the editors of the Annual Practice of the Rules of the Supreme Court say is generally preferred is that stated by Lord Alverstone, C.J., in Bozson v. Altrincham UDC (1903) 1KB 547. Learned Chief Justice of England at 548 – 9 of the report set the test down to be as follows-
“Does the judgment or order, as made, finally dispose of the rights of the parties? If it does, then the order is a final order, if it does not, it is interlocutory”.

The other test as stated in Salaman v. Warner (1891) 1 QB 734 is that an order unless it is made on an application of such character that whatever order had been made thereon must finally have disposed of the matter in dispute. This test looks at the nature of the proceedings. At page 736, Fry, L.J., said:
“I think the true definition is this. I conceive that an order is ‘final’ only where it is made upon an application or other proceeding which must, whether such application or other proceeding fail or succeed, determine the action. Conversely, I think that an order is ‘interlocutory’ where it cannot be affirmed that in either event the action will be determined”.

In Akinsanya v. United Bank for Africa Ltd. (1986) 4 NWLR (Pt.35) 273 the Supreme Court of Nigeria adopted the test which looks at the order made when it cited the case of Bozson v. Altrincham UDC (supra) with approval. In this connection, the Supreme Court adopted the test per Bello, JSC (as he then was) at p. 315 as follows:
“A careful perusal of the decisions of the Court of Appeal of England relating to the applications of the two tests would show that the court has not shown consistent preference of one test to the other. It has been applying one or the other test indiscriminately.
However, in Nigeria in appeals against the decisions of courts of first instance, the appeal courts have been consistent and have adopted unequivocally the test in the Bozson case: Blay v. Solomon (1947) 12 WACA 175; Afuwape v. Shodipe (1957) SCNLR 265; (1957) 2 FSC 62; Alaye of Effon v. Fasan (1958) SCNLR 171; (1958) 3 FSC 68; Ude v. Agu (1961) 1 SCNLR 98; (1961) All NLR 65; The Automatic Telephone v. Federal Military Government (1968) 1 All NLR 429.”