Akpeh Nnaemeka & Ors V. Christopher Ozoekwe & Anor (2016) LLJR-CA

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EMMANUEL AKOMAYE AGIM, J.C.A.

On the 12-10-2010, the Customary Court Nteje (then Awkuzu) granted the respondents leave to appeal against its decision in a civil suit to the High Court of Anambra State Pursuant to this leave, the respondents herein filed appeal No.OT/1A/2010 in the High Court of Anambra state at Otuocha on 13-10-2010.

The appellants herein filed appeal No. OT/2A/2010 at the same High Court complaining against the order of the Nteje Customary Court granting the respondents herein leave to bring appeal No.OT/1A/2010.

On 28-2-2011, the High court dismissed the preliminary objection of the appellants herein to the competence of Appeal No. OT/1A/2010 and granted the application of the respondents herein for an order extending the time for them to file their written argument of appeal No. OT/1A/2010 as appellants in that appeal.

By a motion on notice filed on 12-9-2011 in this Court, the appellants herein applied for an order extending the time within which they can seek leave to appeal against the above 28?2-2011 interlocutory decisions of the trial Court and leave to appeal against the said

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decisions made in Appeal no, OT/1A/2010. A copy of the notice of appeal they intended filing was attached to and exhibited with the application.

By a motion on notice filed on 27-9-2011 in the trial Court, the appellants herein applied for an order staying further proceedings in appeal No. OT/1A/2010 pending the determination of the appeal sought to be brought in this Court by means of the motion on notice in CA/E/200M/2011 filed in this Court and appeal No OT/2A/2010 pending in the trial Court. The application is supported by an affidavit of 14 paragraphs, and accompanying exhibits and written address. The respondents herein filed no counter affidavit and rather opposed the application on grounds of law. After considering the arguments in respect of the application, the trial Court on 6-10-2011 refused the application, dismissing it as having failed.

Dissatisfied with the 6-10-2011 ruling of the trial Court, the appellants herein on 12-10-2011 commenced his appeal No. CA/E/268/11 by filing a notice of appeal containing five grounds for the appeal.
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Both sides have filed, exchanged and adopted their respective briefs as follows: – appellant’s

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brief and respondents’ brief.

By a notice filed on 15-7-2014, the respondents indicated their intention to rely upon a preliminary objection to the appeal, which objection they argued in pages 3 to 7 of their brief on the ground that grounds 1, 2, 3 and 4 of this appeal are incompetent as appeal on those grounds cannot be competently commenced without leave of Court to so appeal first had and obtained because they are grounds of facts or mixed law and facts in an interlocutory appeal.

Before I delve into the merit of this appeal, let me first determine this preliminary objection to this appeal.

It is not in dispute that the 6-10-2011 ruling of the lower Court refusing the application for an order of stay of further proceedings in the pending Appeal No. OT/1A/2010 was made at an interlocutory stage of the pending proceedings. It is beyond argument that the ruling determined finally the issue of whether the application for the stay of further proceedings in appeal No. OT/1A/2010 was grantable because it foreclosed permanently the right of the parties therein to re-litigate the issue in that Court or Court of co-ordinate jurisdiction and rendered