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.”
The question now is, does the decision of the 24th July, 1997 come under S. 220(1)(a) of the said Constitution? In other words, is the decision final or interlocutory? Although S. 220 (1 )(b) of the aforementioned Constitution does not use the word “Interlocutory” it is however clear that if a decision of the Court is not final it must necessarily be interlocutory.
As Obaseki J.S.C. observed in Western Steel Works Ltd & Anor v. Iron and Steel Workers Union of Nigeria (supra) at page 42.
“The classification of decisions into interlocutory and final has not over the years been an easy one.”
I will add that difficulty continues up to the present time despite efforts by Nigerian and British Judges to find a solution. Although the word decision is defined in S.277(1) of the 1979 Constitution of Nigeria neither the word “interlocutory” decision nor “final” decision is in anywhere in the Constitution defined. Various tests have been preferred by different Judges in an attempt to ascertain the nature of either of the decisions. Some Judges have based their decisions on the nature of the application before the court leading to the decision or the order that is made. Others have based the classification on the nature of the order made. In Salter Rex & C. v. Hosh (1971) 2 All E.R. 865 at 866 Lord Denning M. R. said;
“The question of interlocutory” is so uncertain that the only thing for practitioners to do is to look up the practice books and see what has been decided on the point.
See also Technistudy Ltd v. Kelland (1976) 1 WLR 1042 or (1976) 3 All ER 632. In Omonuwa v.Oshodin & Anor.(1985) 2 NWLR (Pt.10) 924 at 932, (1985) 2. SC 1 at 19 Karibi-Whyte J.C.A. said that;
“This difficulty stems from the lack of precision or certainty in the definition of the words or the uncertainty of judicial decisions on this issue.”
At page 31 (P. 938 NWLR) of Omomwa v. Oshodin (supra) the learned Justice observed as follows:
“All the cases cited agree on the proposition that a decision between the parties can only be regarded as final when the determination of the court disposes of the rights of the parties (and not merely an issue) in the case. Where only an issue is the subject-matter of an order or appeal the determination of that court which is a final decision on the issue or issues before it which does not finally determine the rights of the parties is in my respectful opinion interlocutory.”
Let me now examine some of the attempts made at defining ‘final’ and ‘interlocutory’ decisions. In Gilbert v. Endean (1878) 9 Ch D. 259, Cotton L.J. at pages 268 – 269 said as follows of interlocutory applications:
“Those applications only are considered interlocutory which do not decide the rights of the parties, but are made for the purpose of keeping things in status quo till the rights can be decided, or for the purpose of obtaining some direction of the court as to how the cause is to be conducted as to what is to be done in the progress of the cause for the purpose of enabling the court ultimately to decide upon the rights of the parties.”
In Blakey v. Latham (1890) 43 Ch. D. 23 at page 25, Cotton L.J. once again observed:
“Any order, in my opinion, which does not deal with the final rights of the parties, but merely directs how the declarations of right already given in the final judgment are to be worked out is interlocutory, just as an order made before judgment is interlocutory where it gives no final decision on the matters in dispute, but merely directs how the parties are to proceed in order to obtain that final decision.”
On final judgment he said:
“I cannot help thinking that no order in an action will be final unless a decision upon the application out of which it arises, but given in favour of the other party to the action would have determined the matter in dispute.”
In Re Faithful Ex parte Moore (1885) 14 QBD 627 at 629, the Lord Justice once again said;
“I think we ought to give to the words ‘final judgment’ in this subsection, their strict and proper meaning, i.e. a judgment obtained in an action by which a previously existing liability of the defendant to the plaintiff is ascertained or established unless there is something to show the use of the words in an extended sense.”
In Salaman v. Warner (1891) 1 QBD 734 at 734 Lopes L.J. gave a more precise characterisation of what a final judgment or order is. Said the learned Lord Justice:
“I think that a judgment or order would be final within the meaning of the rules when, which ever way it went, it would finally determine the rights of the parties.”
In Bozson v. Altrincham Urban District Council (1903) 1 K.B. 547 at 549550, Lord Alverstone L.C. had this to say on the distinction between final and interlocutory orders:
“it seems to me that the real test for determining this question ought to be this: Does the judgment or order as made finally dispose of the rights of the parties? If it does, then, I think it ought to be treated as a final order; but if it does not, it is then, in my opinion, an interlocutory order.”
In Standard Discount Co. v. La Grange (1677) 3 CPD 67 at 71 Brett L.J opined as follows:
“No order, judgment or other proceedings, can be final which does not at once affect the status of the parties for whichever side the decision may be given, so that if it is given in favour of the plaintiff, it is conclusive against the defendant, whereas if the application for leave to enter final judgment had failed, the matter in dispute would not have been determined.”
After a calm consideration of all the decided cases which I have set out above I have come to the inescapable conclusion as did Lord Alverstone C.J in concurrence with Earl Halsbury LC that the real test is whether the judgment or order as made finally disposes of the rights of the parties. If it does, the judgment or order ought to be treated as a final as a final judgment or order. If on the other hand it does not, then the order is interlocutory.
Applying the above proposition of the law to the facts of this case, the position is that an application was made to strike out the case on the ground of alleged lack of capacity or locus on the part of the plaintiff. The lower court after considering the application, dismissed it. Said the learned trial Judge in the last paragraph of his ruling:
‘The application is devoid of merit. It is accordingly dismissed with N1,500 costs to plaintiff. Further hearing of the substantive case is adjourned to 20th October, 1997.”
How can the above determination be taken to have decided the rights of the parties in the suit? It has not. I have no doubt in my mind that the decision or determination was not final. It was interlocutory. In fact, counsel for the defendant concedes that his appeal against the ruling of the lower court was an interlocutory appeal for in his motion for stay of further proceedings dated 20th October, 1997, he described his appeal as an “interlocutory appeal.” He would seem to have somersaulted in this motion by arguing that the decision was a final one.
I now return to section 220 and 221 of the 1979 Constitution of Nigeria. Having held that the decision appealed against is not final but interlocutory, the defendant/appellant requires leave to appeal to this court under S.221 of the aforementioned Constitution of Nigeria unless it can bring itself under S. 220 (1)(b) of the Constitution i.e. if it can show that its “ground of appeal involves question of law alone.” It now becomes necessary to set out the grounds of appeal with their particulars and to consider them to see whether they involve questions of law alone or of mixed law and facts as contended by the respondent in this motion.
The grounds of appeal are as follows:
“Ground I
The learned trial Judge erred in law when he held that the plaintiff/respondent had locus standi to institute this action.
Particulars
(a) The plaintiff/respondent’s claim is founded on contract.
(b) There is no privity of contract between the plaintiff respondent and the defendant/appellant.
Ground II
The learned trial Judge erred in law when he held that the defendant/appellant owed a duty of care to the plaintiff/respondent.
Particulars:
(a) the plaintiff/respondent did not sue for negligence.
Ground III
The learned trial Judge erred in law when he held that the defendant/appellant was a collecting banker to the plaintiff/respondent.
Particulars
(a) That the defendant/appellant was a collecting banker is not part of the plaintiff/respondent’s pleading.
(b) On the plaintiff/respondent’s pleading, the defendant/appellant was a paying banker to the plaintiff/respondent.”
It is my view that ground 1 of the grounds of appeal involves questions of law alone. The same may not be said of grounds II and III. The respondent’s counsel in the motion would seem to appreciate this when in the course of his argument he submitted that if grounds 1 and 2 are found to be of mixed law and fact he applied to withdraw them. In the circumstance, grounds 2 and 3 of the grounds of appeal are hereby struck out. Ground 1 of the grounds of appeal being purely on law alone is enough to sustain the appeal. The motion fails and is hereby accordingly dismissed.
I award N2000 to the respondent in the motion.
Other Citations: (2000)LCN/0872(CA)