Compagnie Generale De Nigeria Limited Geophysique V. Alhaji Musa Odurusam & Anor (2017)

LAWGLOBAL HUB Lead Judgment Report

MUSA DATTIJO MUHAMMAD, J.S.C.

The 1st respondent as plaintiff at the Imo State High Court sitting in Oguta, hereinafter referred to as the trial Court, commenced the instant suit against the appellant and the 2nd respondent as defendants claiming damages for trespass and injunction. On dismissing the defendants’ challenge to its jurisdiction, the trial Court adjourned the matter to a future date for hearing.

Aggrieved, the appellant, by its notice filed on 22nd October, 2002, appealed against the trial Court’s decision to the Court of Appeal, Port Harcourt Division, hereinafter referred to as the Lower Court. Prompted by the Court, counsel to the parties made submissions on the competence of the appeal in the light of Section 24(2)(a) of the Court of Appeal Act. In a well considered ruling dated 14th July, 2008, the Lower Court on finding the appeal to be against the trial Court’s interlocutory decision filed outside the 14 days prescribed by Section 24(2)(a) of the Court of Appeal Act and without the leave of either of the two Courts having been sought and obtained, struck it out for being incompetent. Dissatisfied, the

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appellant has appealed to this Court against the Lower Court’s decision.

At the hearing of the appeal, parties identified, adopted and relied on their briefs as their respective arguments for and against the appeal. The lone issue formulated by the appellant as having arisen for the determination of the appeal reads:-

“Whether the Court of Appeal was right by holding that the appeal from the High Court on issue of jurisdiction is interlocutory for which an appeal must be within 14 days.”

Although the respondent has distilled a not dissimilar issue in its brief of argument, the appellant’s foregoing issue shall be the basis of the determination of the appeal since in any event, being his issue it circumscribes the aggrieved party’s complaint against the Lower Court’s decision.

On the lone issue, learned appellant’s counsel contends that the Lower Court’s finding at pages 89 – 90 of the record of appeal that since appellant’s appeal before it has been stated in the Notice of Appeal to be interlocutory, the appeal is necessarily so is wrong. Whether an appeal is interlocutory or not, it is submitted, depends on the decision appealed against

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and not simply because the appellant has so couched the appeal. The interlocutory or final nature of an appeal, it is further contended, is not determined by the stage of proceedings at which the appeal arose. In the instant matter, learned appellant’s counsel submits, the Lower Court is wrong to have concluded that the issue of jurisdiction, which is a specialized question, as decided by the trial Court does not finally determine the rights of the parties. The trial Court having ruled on the issue cannot be further approached by the appellant. To that extent, it is argued, the rights of the parties in relation to the question have been finally determined. The Lower Court, it is further contended is wrong to have held contrary to the decision inWestern Steel Works Ltd V. Iron and Steel Workers Union of Nigeria (1986) 3 NWLR (Pt.30) 617, wherein the Supreme Court held any decision on the issue of jurisdiction, notwithstanding whether the trial Court has, AFTER the decision, assumed or declined jurisdiction, is a final decision for which leave not required. In the present case therefore, appellant’s appeal filed outside 14 days remains competent and the

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otherwise decision of the Lower Court, submits counsel is perverse.

Concluding, counsel relies on Odiba v. Azege (1998) 9 NWLR (Pt. 566) 370, to urge that this Court invokes Section 22 of the Supreme Court Act, Cap. 515, Laws of the Federation 2004, to determine the appeal, the Lower Court wrongly declined jurisdiction to hear and determine.