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.”

Further on in the judgment at p. 318 His Lordship concluded on the applicable test as follows:
For the avoidance of any doubt, I would like to emphasize that, in my view, the test formulated in Bozson case which has been adopted since Blay v. Solomon (supra) and Ude v.Agu (supra) is still the test to be applied in determining whether a court’s decision is ‘final’ or ‘interlocutory’. (Italics mine) And Kayode Eso, JSC, who wrote the lead judgment also had no difficulty in adopting the principle articulated in Bozson’s case (supra) when he said at page 294 of the report of Akinsanya’s case supra:
“I have no difficulty in agreeing with Chief Williams at this stage, therefore, that in this country in so far as the court of first instance is concerned, the nature of the order test should be adhered to and the test as pronounced by Alverstone, C.J. in Bozson v. Altrincham should be upheld by the courts”. (Italics mine)

I am bound by the decision of the Supreme Court and therefore, I am to apply the test declared in Bozson’s case to the effect that if court orders something to be done without any further reference to itself the judgment is final otherwise it is interlocutory. Kayode Eso, JSC, in this connection, in Akinsanya case (supra) at p. 296 explained thus:
“In other words, if the court of first instance orders that a matter before it be terminated (struck out) for it has no jurisdiction to determine the issue before it, that is the end of all the issues arising in the cause or matter and there is no longer any issue between the parties in that cause or matter that remains for determination in that court. But it would be interlocutory if its order is that it has jurisdiction for there will be reference of the remaining issue in the case to itself. When a Court of Appeal rules and orders that a court of first instance had no jurisdiction in a cause which has been brought before it that is the end of the matter in so far as that particular litigation goes between the parties in that Court of Appeal. There is no further reference to the Court which has made the order in either case. And that has determined the rights of the parties in both cases before the court making the order … If the order had been made by the trial court that it had jurisdiction, that is interlocutory according to the nature of the order made as there are issues still to be determined.
In Blay v. Solomon (1947) 12 WACA 175 the erstwhile West African Court of Appeal also followed the said test which looks at the order made. See also Ude v. Agu (1961) 1 SCNLR 98: (1961) All NLR 65,66 – 67.

On the strength of these authorities, the order of the learned trial Judge, entering judgment in favour of the respondent for the sum of N60,000,000, on the alleged admission of the appellant, may be a final, and not an interlocutory judgment. It is considered an interlocutory decision, or judgment even though the order is complete, absolute, conclusive and capable of execution as it is no longer subject to review or variation or setting aside by same court or tribunal which made the order, nevertheless, there is outstanding reserved issue for the court which made the order.

The judgment signed in favour of the respondent does not however qualify to be a final decision because of the pendency of the respondent’s outstanding claims for special and general damages which were not admitted before the learned trial Judge and arising from the same claim or writ of summons. A decision is considered final once there is no further reference to a court after it has made its order that something be done that is, all the rights and not just one issue or some issues have been determined. In this case, some other reference in the nature of the claim for special and general damages have been reserved in the trial Judge itself.

The nature of the order made is N60,000,000.00 judgment to the plaintiff on admission of the defendant with the claim for special  and general damages between the parties in the cause or matter reserved or still outstanding for determination in the trial court.

Accordingly, the nature of the order by the trial court awarding N60, 000,000.00, out of respondents several claims, to the respondent is interlocutory as there are issue or issues still to be decided in the nature of special and general damages by the same trial court.

It may be observed that I have not alluded to the submission of the learned counsel for respondent in their written address. The reason cannot be far fetched. The submission is solely pegged on the decision of the Supreme Court in the case of Omonuwa v. Oshodin (1985) 2 NWLR (Pt.10) 924 which is inapplicable to the circumstance of this case. The issue for determination in the instant case is whether the decision of kano State High Court of Justice, in its first instance jurisdiction, is a final or an interlocutory order.

In Oshodin’s case the Supreme Court considered and applied a test applicable to decision of an appellate court that is, the Court of Appeal to determine if the decision was a final or an interlocutory one. The test in the two instances are not the same, they are different. If a court of first instance, for example, decides that it has no jurisdiction its decision is final as it thereby finally determines the right of the parties without reserving any issue in the case to itself. But if the trial court decides that it has jurisdiction to entertain a cause or matter the decision is interlocutory because it has reserved in itself the hearing of the substantive suit. While in the former instance, an aggrieved party does not require leave to appeal and is entitled to appeal within three months as of right, in the latter case, he requires to seek leave to appeal and must seek leave and appeal within fourteen days of the decision. See Bowaju v. Adediwura (1976) 6 SC 143 and S. 25(2)(a) of the Court of Appeal Act, Cap. 75 of the Laws of Federation of Nigeria, 1990.

But a decision of an appellate court declining jurisdiction is always a final decision as there is no further reference to itself and such decision could be appealed as of right. I am strengthened in this view by the Supreme Court decision in Akinsanya’s case, which, in my respectful opinion, is locus classicus on the point, that the decision in Oshodin’s case should not relate to the problem as arising from the court of trial and that the ratio of Omonuwa v. Oshodin (supra) could not be made to apply to decision of the court of first instance.

I am now to deal with the appeal as one emanating from a court of first instance. S.241 (1)(a) and (b) of the Constitution of the Federal Republic of Nigeria 1999 governing appeals from Federal and State High Courts, to this court provides inter alia 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 a High Court sitting at first instance.
(b) where the ground of appeal involves questions of law alone decisions in any civil or criminal proceedings”. (Italics mine)

Having found that the decision of the court below at first instance is not a final but interlocutory one, I am to examine the 5 grounds of appeal filed to ascertain whether or not they involve question of law alone which would qualify the appeal to be brought as of right without leave of either this court or the court below being sought and obtained before the appeal could be competent.

In this connection, appellant argued in its address in writing that the grounds of appeal, contained in its memorandum of appeal, filed on 5th July, 2002, are grounds of law which do not require leave of either this court or the court below to be filed. Learned counsel then in the written address read and examined the appellant’s five grounds of appeal without their particulars and submitted that it would be seen that they were all purely grounds of law.

I agree with the submission of the learned counsel for respondent that whatever principle is to be applied or followed in determining the nature of a ground of appeal the ground of appeal must be read together as a whole. To distinguish which of the grounds of appeal is of law alone, fact or mixed law and fact the grounds must be read as a whole. It follows that the ground, contrary to the postulation of appellant’s counsel shorn of their particulars should not be considered. See Orakosim & Ors. v. Menkiti (2001) FWLR (Pt.52) 2068, 2077; (2001) 5 SCNJ 1, (2001) 9 NWLR (Pt.719) 529 and Ogbechie v. Onochie (1986) 2 NWLR (Pt.23) 484.

A ground of appeal is not a ground of law alone merely because it is so christened or designated rather it is the essence or the nature of the ground that determines what a ground of appeal is made of or involves: U.B.A. v. Stahlbau GMBH (1989) 3 NWLR (Pt.100) 374,410; Nwadike & Ors. v. Ibekwe (1987) 11 – 12 SCNJ; (1987) 4 NWLR (Pt.67) 718 and Ojemen v. Momodu II (1983) 1 SCNLR 188; (1983) 3 SC 173; Metal Construction (West Africa) Ltd. v. Migliore & Ors: In re Miss Ogundare (1990) 1 NWLR (Pt.126) 279.

It is apt and necessary, at this stage, to read the appellant’s grounds of appeal with their particulars as adumbrated in its notice of appeal:
“1.  The learned trial Judge erred in law and arrived at wrong conclusion by entering judgment in favour of the respondent in the sum of N60,000,000.00 and holding that the appellant admitted in its statement of defence that it is owing the respondent.

PARTICULARS
(a) The law is settled that the court must take into account the whole pleading in arriving at a decision relating to whether there exists an admission relating to certain set of facts contained therein or not.
(b) The appellants averred to facts in their pleadings by which their purported admission is negated.
(c) The learned trial Judge failed to take into account the pleadings of the parties in their entirety before reaching a conclusion that the appellant indeed admitted owing the respondent.

2.  The learned trial Judge erred in law by prematurely delving into, pronouncing and adjudging on facts in  respect of which the parties joined issues, when no evidence  is led in respect of thereof to warrant judicial pronouncement on them.

PARTICULARS
(a) The appellant averred in its pleading that it will  contend at the trial that these is a valid sell and
Delivery of title to the respondent in respect of the property over which the alleged sum  of N60,000,000.00 was paid
(b) The matter did not proceed to full-blown trial and no evidenced was led by either of the parties in respect of the facts averred to in their respective pleadings.
(c) The learned trial Judge pronounced on the issue of the delivery of title, failure of consideration and  creation of third party interest without any evidence led and heard.

3. The learned trial Judge erred in law and arrived at wrong conclusion by holding that the averment contained in paragraph 6 of the appellant’s statement of defence filed at the lower court amounted to an admission, contrary to the spirit of judicial position that requires admission to be express, direct and positive.

PARTICULARS
(a) The law is settled that facts are considered admitted only if they are voluntarily and unconditionally admitted.
(b) The appellants admitted receiving the sum of N60m from the respondent but claimed meeting its own side of the contractual obligations relating to the delivery of possession.
(c) A claim of receipt of consideration and discharge of reciprocal obligation, being conditional, cannot be said to be an admission in law.

4. The learned trial Judge erred in law and exercised his discretion wrongly by failing to require facts purported to have been admitted by the appellants relating to the sum of 60m to be proved otherwise than any such purported admission having regard to the express denial of the purported liability by the appellant.

PARTICULARS
(a) The appellant filed a counter-affidavit to the respondent motions for judgment and denied the respondent claim for failure of consideration in respect of the sum of N60m it received from the respondent.
(b) The law is settled that the court may, in its discretion, require the facts admitted to be proved otherwise than by an admission.
(c) That it is a prudent exercise of such discretion on the part of the court to require facts admitted to be proved particularly in cases where the purported admission is vague, contentious and not express.
(d) That it is not judicious exercise of discretion for the learned trial Judge to enter judgment on the basis of an admission that is in itself contentious between the parties.

5. The learned trial Judge erred in law and arrived at a wrong conclusion by taking into consideration extraneous considerations to arrive at a decision by which he adjudged the appellants liable to the respondent in the sum of N60m.

PARTICULARS
“(a) The learned trial Judge based his conclusion that the appellants are liable to the respondent on the basis that the respondent have not enjoyed reciprocal consideration from the appellant in respect of the consideration of the N60m paid.
(b) That the parties have joined issues on the terms of alleged failure of consideration.
(c) That no evidence is led on the issue of the failure of consideration to give basis for the learned trial Judge finding of facts relating to the failure of consideration”.

I am quite conscious of the enormity of the problem besetting both the courts and counsel who practice before them when called upon to determine the nature of a ground of appeal, whether they are of law alone or of fact or of mixed law and fact. The reason being that there is a thin line between a ground of law alone and a ground of mixed law and fact. But there are some principles which have evolved over the years to serve as our beacons or guides.

In this connection, an issue is classified as of law when it deals with application or misapplication of laws or interpretation of a rule of law. In United Bank for Africa Limited v. Stahlbau GMBH & Co. KG (1989) 3 NWLR (Pt.110) 374 Supreme Court implored courts engaged in differentiating between a ground of law and a ground of fact to scan the relevant ground or grounds of appeal carefully to see whether the ground deals with misapprehension of the court below of the law or its misapplication of the law to the facts already proved and accepted which, in that case, would be question of law or one that would involve questioning the evaluation of facts by that court before application of law which would result in a question of mixed law and fact.

See Ogbechie v. Onochie (1986) 2 NWLR (Pt.23) 484 and Nwadike & Ors. v. Ibekwe & Ors. (1987) 4 NWLR (Pt.67) 718; Ojukwu v. Onyeador (1991) 7 NWLR (Pt.203) 286, 312; and in P.N. Udoh Trading Co. v. Abere (2001) 5 SCNJ 274, 282; (2001) 11 NWLR (Pt.723) 114: the Supreme Court per Kalgo, JSC, reiterated at P. 128 the principle enunciated in U.B.A. v. Stahlbau (supra) when he said:
“In the light of the principles enunciated in the above decided cases of this court, I have examined the grounds of appeal filed by the appellant in this case and find that grounds 2, 5 and 6 cannot be classified as grounds of law”.

This is so, because in my respectful view all of them, read with their respective particulars, cannot properly be determined on construction of any statutory provisions. But grounds 1,3 and 4 can all be answered by relevant law or rule of law and they are in my view, pure grounds of law.
And at Pp. 142-143 of the same report, Ogundare, JSC said:
“This court has had occasions to pronounce on the test to be applied in determining whether a ground of appeal is one of law alone or of mixed law and fact. I refer to such cases as Ogbechie v. Onochie (1986) 2 NWLR (Pt.23) 484, Nwadike v. Ibekwe (1987) 4 NWLR (Pt.67) 718 at 744 – 745; Bamgboye v. University of Ilorin (supra); Comex Ltd. v. N.A.B. Ltd. (supra). In Ogbechie Eso, JSC, observed at page 91 of the report:
“There is no doubt that it is always difficult to distinguish a ground of law from a ground of fact but what is required is to examine thoroughly the grounds of appeal in the case concerned to see whether the grounds reveal a misunderstanding by the lower tribunal of the law or a misapplication of the law to the facts already proved and admitted, in which case it would be question of law, or one that would require questioning the evaluation of facts by the lower tribunal before the application of the law in which case it would amount to question of mixed law and fact”. The issue of pure fact is easier to determine.

Applying these tests to the grounds of appeal in this appeal, it is clear that none of the grounds of appeal qualify as grounds of law simpliciter. The five grounds are not grounds of law alone. They are, at best, grounds of mixed law and fact as they discussed absence of evidence to prove the claim.
In the circumstance of this appeal, since the grounds of appeal filed alone with the notice of appeal do not qualify as grounds of law alone, the appeal could not have been brought as of right under the provisions of section 241(1)(b) of the Constitution of the Federal Republic of Nigeria, 1999 (supra).

From the circumstances of this appeal, the appeal could only competently be brought if leave of this court or of the court below were sought before the relevant notice of appeal were filed, pursuance of section 242( 1) of the Constitution which provides thus:
“242(1) Subject to the provisions of section 241 of this constitution, an appeal shall lie from decisions of the Federal High Court or a High Court of Appeal with the leave of the Federal High Court or that of High Court or the Court of Appeal”. (Italics mine)

Since the requisite leave was neither sought nor obtained before the appeal was brought and the time to ask for such leave has expired (by virtue of section 25(2)(a) of the Court of Appeal Act, Cap. 75 of the Laws of the Federation of Nigeria, 1990), I respectfully find this appeal incurably defective, incompetent and strike it out for incompetence. See Registered Trustees of Amore v. Awoniyi (1994) 7 NWLR (Pt.355) 154, 189; Arowolo v. Adimula (1991) 8 NWLR (Pt.212) 753; Ogbeehie v. Onoehie (supra); Ogidi v. Egba (1999) 10 NWLR (Pt.621) 42, 72.

The respondent is entitled to costs and I make order as to costs which is assessed at N5,000.00 to the respondent because costs follows the event. Brief in the appeal had been filed and exchanged.

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Other Citations: (2003)LCN/1368(CA)