Nireko Enterprises Limited V. First Bank of Nigeria Plc (2000)

LawGlobal-Hub Lead Judgment Report

UBAEZONU, J.C.A. 

In an action commenced by the plaintiff/applicant at the High Court Awka, Anambra State, it claimed against defendant/respondent the following reliefs:

“(a) N3.8 million (Three million eight hundred thousand naira) being loss of profit suffered by the plaintiff in consequence of the wrongful dishonour by the defendant of cheque No.HV00662438 of 14/9/95 issued to the plaintiff by the Anambra State Local Government Joint Service Committee.

(b) Interest at 10% on the judgment award until payment.

(c) N380,000.00 (three hundred and eighty thousand Naira) being fair and reasonable fees agreed to be paid as solicitor’s fees.”

Pleadings were duly filed and exchanged, PW1 testified. Following a motion by the defendant/respondent to dismiss the suit for lack of capacity and locus in the plaintiff to bring action, the court on 24th July, 1997, in a considered ruling, dismissed the motion and adjourned the case for continuation of hearing. Against this ruling, the defendant has appealed to this court by a notice of appeal dated 7th day of August, 1997. The defendant also by a motion dated 20th day of October, 1997, prayed the lower court for a stay of further proceedings in the suit pending a determination of the appeal filed by the defendant to this court. The plaintiff/applicant has now filed a motion in this court dated 28th day of March, 2000 praying this court for an “order striking out the notice of appeal dated 7/8/97 being against an interlocutory decision of the Awka High Court without leave. This ruling is in respect of this motion.

The plaintiff/applicant’s motion is supported by a 4 paragraph affidavit and a further affidavit of eleven paragraphs to which is attached the ruling of 24th July, 1997, as well as a copy of the notice of appeal. The defendant/respondent in the motion also filed a counter-affidavit of 5 paragraphs.

Arguing his motion to strike out the appeal, learned counsel for the applicant submits that the decision appealed against is interlocutory. He refers to section 220 of the 1979 Constitution of Nigeria and submits that the decision dismissing the motion was interlocutory not final and therefore leave is required to appeal. Learned counsel refers to Coker v. Coker (1963) 2 SCNLR 220, (1963) 1 All NLR 297. Counsel further submits that the grounds of appeal are not on law but on mixed law and fact. He refers to Akinsanya v. U.B.A (1986) 4 NWLR (Pt.35) 273. (1985) 7 S.C (pt.1) 223 at 275 -6. This case does not exist in (1985) 7 SC (Pt.1) of the law report.

Onyejiaka, Esq. learned counsel for the respondent in the motion refers to his counter-affidavit and says that the decision he appealed against is final and therefore required no leave. He refers to FMB Ltd v. NDIC (1995) 6 NWLR (Pt. 400) 226 at 244; Western Steel Works Ltd & Anor v. Iron and Steel Workers Union of Nigeria (1986) 6 S.C 35 at 44, (1986) 3 NWLR (Pt.30) 617. On the grounds of appeal, he submits that they are no law alone and therefore no leave is required, Counsel however says that if grounds 2 and 3 are found to be mixed law and fact, he applies to withdraw them.

Two questions call for determination in this application. Firstly, was the ruling of the lower court on the 24th July, 1997 a final or an interlocutory decision? Secondly, are the grounds of appeal on law alone or mixed law and facts? I shall answer the first question first.

The importance of the question as to whether the decision of the 24th July, 1997 is final or interlocutory stems from the provisions of the 1979 Constitution of the Federal Republic of Nigeria. For, if it is a final decision, the applicant needs no leave of the court to appeal whereas if it is an interlocutory decision other considerations will come into play. Section 220(1) and (b) of the 1979 Constitution (S. 241) (1)(a) and (b) of the 1999 Constitution) provides as follows:

“220 – (1) An appeal shall lie from decisions of 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 High Court sitting at first instance;

(b) Where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings.”