Sylvanus Ekemezie V. Anikokwu Ifeanacho & Ors (2019)
LAWGLOBAL HUB Lead Judgment Report
CHIMA CENTUS NWEZE, J.S.C.
The plaintiffs/respondents, in a representative capacity, commenced action against the defendant/appellant, equally, in a representative capacity, in Suit No. A/230/2000. They claimed declaration of customary rights of occupancy, damages for trespass and injunction over the land in dispute referred to as “Agbo Amadim.” It was shown verged “Red” in Plan No. SC/ANOO5 LD/2001. It was filed with the Statement of Claim.
On his part, the defendant/appellant, in his Statement of Defence, indicated that the said land was verged “Pink” in Plan No. AA/D 28/2001. Thereafter, the defendant/appellant, by an application on notice, beseeched the trial Court to dismiss or strike out the case as an abuse of process.
Issues were duly joined in their respective Affidavits, Counter Affidavits and written submissions. The plaintiff/respondent, additionally, filed a Notice of Preliminary Objection challenging the competence of the said application. The trial Court, after hearing the arguments of counsel, dismissed the said Preliminary Objection. This prompted the defendant/appellant’s
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appeal to the Court of Appeal, Enugu Division (hereinafter, simply, referred to as “the lower Court.”) Sequel to the filing of the appeal, the defendant/appellant applied to the trial Court, by Motion on Notice, for leave to appeal “on grounds of mixed law and facts and on facts.” It sought an order “to deem the Notice of Appeal… already filed… as duly filed the appropriate fees having been paid…”
The plaintiff/respondent opposed the application. On its part, the lower Court, in its reserved judgement of July 9, 2009, upheld the respondent’s Preliminary Objection. In consequence, it struck out the Notice of Appeal as well as the interlocutory appeal. Hence, this appeal to this Court.
At the hearing of this appeal on November 6, 2018, N.F. P. Egonu, learned counsel for the appellant, adopted the brief of argument filed on… He, equally, adopted the Reply brief. On his part, Dr J. O. Ibik, SAN, learned senior counsel for the respondents, adopted the brief filed on January 13, 2010.
The plaintiffs/respondents reaction to this appeal was swift. He filed a notice of Preliminary Objection, incorporated and argued in his respondent’s
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brief, pages 3 7. In consequence, this objection would have to be dealt with before returning (if need be) to the main appeal. The objection was predicated on four grounds, namely,
Ground One
The Notice of Appeal challenging the interlocutory decision of the lower Court in the instant appeal was filed without prior leave in contravention of Section 21 (2) of the Supreme Court Act, Cap S. 15 Vol.14, Laws of the Federation of Nigeria, 2004, as made applicable by Section 233 (6) of the Constitution of the Federal Republic of Nigeria, 1999, Cap C 23, Vol 3, Laws of the Federation of Nigeria, 2004
Ground Two
The record purportedly prepared for the instant appeal was prepared without leave of Court as required by Order 7 Rule 6 of the Supreme Court Rules, Cap C 23, Vol 3, Laws of the Federation of Nigeria, 2004, as made applicable by Section 233 (6) of the Constitution of the Federal Republic of Nigeria.
Ground Three
The record was not prepared within the prescribed period as stipulated in Order 7 Rule 7 (1) of the Supreme Court Rules and has not been regularized by Order of Court.
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Ground Four
The appellant’s Brief of Argument is incompetent for being based on incompetent record.
At the hearing of the appeal on November 6, 2018, Dr J. O, Ibik, SAN, learned senior counsel for the respondent, adopted the brief and placed reliance on the arguments therein as arguments in support of the Preliminary Objection.
With respect to Ground One, he cited Section 21 (2) of the Supreme Court Act. He submitted that the judgement appealed against was an interlocutory decision of the lower Court. As such, he argued, an appeal against it must be by prior leave of that Court or of this Court as prescribed in Section 21 (2) of the Supreme Court Act. In his submission, the application of the said statutory provision was enjoined by Section 233 (6) of the 1999 Constitution (supra). He pointed out that the Notice of Appeal, page 241 244 of the record, was manifestly filed without leave of either the lower Court or of this Court.
The distinguished Senior Advocate maintained that the Supreme Court Act is an Act of the National Assembly for the time being in force regulating the powers, practice and procedure of the Supreme Court as envisaged in
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Section 233 (b) of the 1999 Constitution (supra). In this appeal, he pointed out, there was nothing on record to show that the defendant/appellant sought or obtained leave of the lower Court or of the Supreme Court to file his Notice of Appeal, pages 241 244 of the record. He opined that leave to appeal is a condition precedent; hence, failure to obtain the requisite leave renders the Notice of Appeal incompetent, Madukolu v Nkemdillim [1962) 2 SCNLR 341; Skenconsult(Nig) Ltd v Ukey[1981] 1 SC 6.
GROUND TWO
Turning to the second ground, he cited Order 7 Rule 6 of the Supreme Court Rules which enjoined the appellant in an interlocutory appeal to seek and obtain leave to enable the Registrar of the lower Court prepare the record for use in the appeal. He drew attention to the Registrars Statement which was signed by F.C. Abooh, Registrar, Court of Appeal, Enugu, comprised in the Certified True Copy of the record that the record was prepared by the Registrar of the lower Court.
He pointed out that there was nothing on the record to show that prior leave of Court was obtained to enable the said Registrar prepare the said record.
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Since leave was a condition precedent, failure to obtain it rendered the record incompetent, Madukolu v Nkemdilim (supra); Skenconsult (Nig) Ltd v Ukey (supra).
In Ground Three, he placed reliance on Order 7 Rule 7 (1) of the Supreme Court Rules. The said rule enjoined the defendant/appellant to prepare the record simultaneously with filing his Notice of Appeal or within fourteen days thereafter.
In effect, he argued that the defendant/appellant failed to prepare the record as stipulated in Order 7 Rule 7 (1) of the Rules of the Supreme Court or at all, within the said Prescribed period. Worse still, the defendant/appellant did not obtain any order from this Court extending the period for preparing his period or a deeming order. Even then, he did not obtain an order for departure from the Rules with respect to the preparation of the said record. The record, therefore, in his submission, was irregular and incompetent. It should be dismissed by this Court’
Ground Four
The fourth issue was on the incompetence of the appellant’s brief. He drew attention to Order 6 Rule 5 (1) (a) of the Supreme Court Rules. He explained that this
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Order conferred on the appellant the right to file and serve the appellant’s brief “within ten weeks from the receipt of the record of appeal referred to in Order 7.”
He submitted that Order 7 Rule 2 (1) imposed on the appellant, in an interlocutory appeal, the statutory duty to prepare the record as stipulated in Order 7 Rule 7. He explained that the Registrar of the lower Court may be granted leave of Court to prepare the record the record in an interlocutory appeal.
He maintained that no such record in interlocutory appeal, as prescribed in Order 7 Rules 2, 6 and 7 of the Supreme Court was obtained in these proceedings. Again, no deeming order was sought and obtained from the apex Court to legitimize or regularize the purported record which was prepared by the Registrar of the lower Court.
He explained that the appellant’s brief filed on November 20, 2009, in these proceedings made copious references to the contents of the incompetent record ostensibly prepared in contravention of the applicable law and rules. He therefore, submitted that the appellants brief was incompetent and should be discountenanced.
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He pointed out that appeal is regulated by statute encompassing the substantive and procedural laws applicable thereto. Infractions of such laws and rules renders the appeal incompetent and robs the appellate Court of the jurisdiction to hear and determine the appeal on the merit. In consequence, he argued that this appeal has been rendered incompetent and liable to be struck out in its entirety, Akujinwa v Nwaonuma [1998] 13 NWLR (pt 583) 632; FBN Plc v TSA Ind Ltd [2007] 17 WRN 40, 79 80.
On his part, learned counsel for the appellant, N. F. P. Egonu, adopted the Reply brief filed on February 2, 2010. He adopted the arguments therein as his response to the issues canvass in the Preliminary Objection. In the first place, he argued that the right to appeal from the decisions of the lower Court to this Court, as of right, is prescribed in Section 233 (2) (a) of the Constitution (supra). He explained that, as the defendant appealed as of right to this Court under Section 233 (2) (a) (supra), he did not require the leave of either the lower Court or of this Court.
According to him, the appellant’s appeal was not made under Section 21 (2) of the Supreme Court Act
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(supra). He contended that even then any law that was in conflict with the Constitution (supra) must, to the extent of its inconsistency, be void, Guardian Newspapers Limited and Ors v The A. G of the Federation [1995] 5 NWLR (pt 398) 703, 729 -730; Idakula v Adamu [2001] 1 NWLR (pt 694) 322, 343 344; AG of Abia State and Ors v AG of the Federation [2002] 6 NWLR (pt 763) 264, 479.
In his submission, the appellant did not require any leave to appeal to this Court against the lower Court’s decision, in this case; hence, the Notice of Appeal is competent. He drew attention to page 235 of the record for the decision of the lower Court. He maintained that, having determined that the Notice of Appeal was a nullity, and that it had no jurisdiction to entertain the appeal, including the interlocutory application based on the Notice of Appeal, the lower Court had determined the rights of the parties in the matter before it, Ebokam v Ekwenibe and Sons Trading Company Ltd (1999) 10 NWLR (pt 622) 242, 252; 255 – 256; 258; Western Steel Works Ltd and Anor v. Iron and Steel Workers Union of Nigeria and Anor (1986) 3 NWLR (pt. 30) 617 625, 626 Igunbor v. Afolabi and Anor (2001) 11 NWLR (pt 723) 148, 165.
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He further pointed out that the decision of the lower Court in this case was a final decision and it was made in respect of a preliminary objection. The Registrar of the lower Court, he insisted, duly prepared the record of appeal in this case, collected the appropriate fees from the appellant, delivered a copy thereof to the appellant and transmitted the relevant documents and copies of the record of appeal to this Court.
He explained that the record of appeal comprised two Volumes of 246 pages of documents. He, the Registrar, affirmed that the appellant complied with the conditions of appeal imposed on him. He submitted that the record of appeal was duly and properly prepared by the Regisrar of the lower Court. He duly and rightly transmitted the same to this Court for hearing. In his view, therefore, the said Registrar did not require any leave to prepare the record of this case.
He pointed out that the Notice of Appeal was filed on July 20, 2009, page 1, Court of Appeal Index serial number 44 and page 244 of the record. He contended that, by Order 7
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Rule 4 (1) of the Supreme Court Rules (as amended in 1999) the Registrar of the lower Court had up to six months to transmit the record of appeal to this Court. He insisted that the lower Court’s Registrar transmitted the record of appeal to this Court on September 10, 2009, within the period prescribed by the Rules.
He explained that the appellant’s brief was filed less than eight weeks of the receipt of the record of appeal. The record of appeal was duly and properly prepared by the lower Court’s Registrar, citing paragraphs 2.2 and 3.1 of his Reply to the Preliminary Objection. The appellant’s brief was therefore, competent.
He further submitted that, if the lower Court’s Registrar was not right in preparing the record of appeal in this case after the appellant had satisfied the conditions of appeal imposed on him, it was not right to punish the appellant for the errors of the Court and staff, NDIC v Akahall and Sons Co ltd (2004) 6 NWLR (pt 869) 245,778.
He submitted that, in this case, a complete record of all documents necessary and relevant for the appeal was before this Court- the appellant satisfied the conditions of appeal.
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He maintained that the plaintiff was relying on technicalities, whereas the era of technicalities had long passed, Okonjo v Odje and Ors [1985] 10 SC 267 268; Afolabi and Ors v Adekunle and Anor [1983] 8 SC) 98, 119.
He entreated the Court to do substantial justice, Obadiaru v Uyigue and Anor [1986] 3 SC 39; Amaechi v INEC and Ors [2008] 5 NWLR (pt 1080) 227, 244. He derided the preliminary objection as unsustainable.
RESOLUTION OF THE ISSUES
By way of prefatory remarks, I note that a preliminary objection is a pre-emptive strike; its resolution will determine whether or not the appeal will be determined on the merit, Jim-Jaja v COP. Rivers State and Ors (2012) LPELR-20621 (SC) 10, paragraph F. Indeed, that is why I am under obligation to resolve the issues agitated in the above preliminary objection before taking any further step in the determination of this appeal, Okoi v. Ibiang [2002] 10 NWLR (pt 7760) 455, 468; UBA Plc v ACB [2005] 12 NWLR (pt 939) 232; Goji v Ewete [2001] 15 NWLR (pt 736) 273, 280.
Once this preliminary objection on the competence of this appeal succeeds, the proceedings in the appeal would be aborted and the need to consider the
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issues raised therein would automatically abate, L. M. Ericsson Nig Ltd v Aqua Oil Nig Ltd (2011) LPELR-8807, citing Ananeku v. Ekeruo [2002] 1 NWLR (pt 748) 301, 30; NPA v. Eyamba [2005] 12 NWLR (pt 939) 409; UBN v. Sogunro [2006] 16 NWLR (pt 1006) 504, 521-2. Indeed, only the first ground is determinative of this Objection and ultimately, the appeal, itself.
As indicated earlier, Dr Ibik, SAN, for the Respondent/Objector had submitted that the judgement appealed against was an interlocutory decision of the lower Court. As such, he argued, an appeal against it must be by prior leave of that Court or of this Court as prescribed in Section 21 (2) of the Supreme Court Act. In his submission, the application of the said statutory provision was enjoined by Section 233 (6) of the 1999 Constitution (supra). He pointed out that the notice of Appeal, page 241 244 of the record, was manifestly filed without leave of either the lower Court or of this Court.
The distinguished Senior Advocate maintained that the Supreme Court Act is an Act of the National Assembly for the time being in force regulating the powers, practice and
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procedure of the Supreme Court as envisaged in Section 233 (b) of the 1999 Constitution (supra). In this appeal, he pointed out, there was nothing on record to show that the defendant/appellant sought or obtained leave of the lower Court or of the Supreme Court to file his Notice of Appeal, pages 241 244 of the record. He opined that leave to appeal is a condition precedent; hence, failure to obtain the requisite leave renders the Notice of Appeal incompetent, Madukolu v Nkemdillm [1962] 2 SCNLR 341; Skenconsult (Nig) Ltd v Ukey [1981] 1 SC 6.
This argument provokes the long-drawn question of what constitutes an “interlocutory decision” as opposed to a “final decision” To start with, it is important to note that interlocutory appeals come under Section 233 (2) of the Constitution and not under Section 233 (3) of the said Constitution. What is more, an Appeal, under Section 233 (2) (supra), covers both final and interlocutory appeals, Abubakar and Ors v Yar’Adua and Ors (2008) LPELR 51 (SC); [2008] 12 SC (pt 11) 1.
For the resolution of the question, I refer to Omonuwa v. Oshodin and Anor [1985] 2 NWLR (pt. 10) 924. In that
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case, Karibi-Whyte, JSC, in dealing with the question whether a decision of a Court is interlocutory or final, so extensively reviewed the authorities on the matter. His Lordship presented those principles that can aid the Court in determining whether a decision is final or interlocutory.
At pages 932 et seq, His Lordship intoned thus:
The question whether a decision of a Court is interlocutory or final, has been one of perennial difficulty for the Courts. This difficulty stems from the lack of precision or certainty in the definition of the words, or the uncertainty in the judicial decisions on the issue. This has prompted Lord Denning M.R., to suggest that ‘it is impossible to lay down any principles about what is final or what is interlocutory’ – Salter Rex and Co. v. Ghosh (1971) 2 All ER. 565, 566; Technistudy Ltd. v. Kelland (1976) 3 All ER 865. Indeed, it was suggested in the last mentioned case that, ‘the only thing to do is to go to the practice books and see what has been done in the past.’
Whilst this approach may provide a useful guide, the problem marches on. I think that in a matter of this nature, despite the elusive imprecision of decided
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cases, the ideal is to provide a workable test for the determination of the issue, when it arises, instead of relying on examples. It is admitted that so far, the authorities on the issue are not uniform. I shall however, classify them and endeavour to suggest a test which in my opinion is acceptable in principle and workable in practice.
Although Section 277 defines the word ‘decision’ in relation to Court, as any determination of that Court and includes judgment, decree, order, conviction, sentence or recommendation, there is no definition of the words ‘final’ or ‘interlocutory’ either in the Rules of Court, Supreme Court Act, Court of Appeal Act or in the Constitution. In the circumstances, resort ought to be had to the judicial decisions.
In Gilbert v. Endean (1878) 9 Ch. 259, 268, 269, Cotton, L. J. said:
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
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enabling the Court ultimately to decide upon the right of the parties.
Again, in Blakey v. Latham (1890) 43 CH. D. at p. 25, Cotton L. J. said:
Any order, which in my opinion, does not deal with the final rights of the parties, but merely directs how the declarations of rights already given in the final judgments 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.
I do not think there is any dispute as to the correctness of the above dicta with regard to the definition of an interlocutory application and the resulting order or judgment. I accept it as the correct definition.
There are also judicial definitions of what is a final judgment. In re Faithful, Ex parte Moore (1885) 14 QBD. 67, Cotton, L. 1 at p. 629, explained what he said in ex parte Chinery 12 QBD. 342 as to what is a final judgment. He said:
I think we ought to give to the words ‘final judgment’ in this subsection their strict and proper meaning i.e.
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a judgment obtained in an action by what 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.’
I think the definition of Lopes L.J. in Salaman and Ors. v. Warner (1891) 1 QB 734 at p. 736, would seem to me, the same but is more precise. His Lordship said:
I think a judgment or order would be final within the meaning of the rules, when, whichever way it went, it would finally determine the rights of the parties.
This case followed the earlier decision of Standard Discount Co. v. La Grange (1877) 3 CPD.67. In Blakey v. Latham (1890) 43 Ch. D 23 C.A., Cotton L. J., construing the Rules of the Supreme Court, 1883, Order LVIII R. 15, said:
No order, judgment or other proceeding 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 for the plaintiff it is conclusive against the defendant, and if it is given for the defendant it is conclusive against the plaintiff.
His Lordship went on to add at p. 25:
I cannot help thinking that no order in an action
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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 Bozson v. Altrincham Urban District Council (1903) 1 KB. 547, Lord Alverstone, C. J., agreeing with the Earl of Halsbury L.C., said at pp. 549 550:
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 it does not, it is then in my opinion an interlocutory order.
See, also, Egerton and Ors. v. Shiley (1949) 1 KB. 107
It would seem clear from the cases and the dicta cited that two tests for determining what is interlocutory or what is final have emerged from the cases. There are the cases which adopt the nature of the application to the Court as the determining factor whether the judgment or order is interlocutory or final, and there are others which consider the nature of the order made. Whereas Gilbert v. Endean; Blakey v. Latham (supra);
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Salter Rex and Co. v. Gbosh (supra); The Technistudy Ltd v. Kelland (1976) 3 All ER 632 represent the first view, Salaman v. Warner (supra); Bozson v. Altrincham UDC (supra); Blay and Ors. v. Solomon (1947) 12 WACA 175, represent the second view. It seems clear to me from the cases in this jurisdiction, that the test in the second class of case has been adopted and applied. The test laid down by Lord Alverstone in Bozson v. Altrincham U.D.C. (supra) has been consistently applied.
In Akaniya Oguntimehin (The Oloja of Igboruwo) v. Omotoye (1956) 2 FSC 56, the learned trial Judge made an order transferring one of the issues in an action pending before him in the Benin High Court to a Native Court for decision. Plaintiffs appealed against the order. In the Federal Supreme Court the question arose, whether the order for transfer is final or interlocutory since no appeal lies from an interlocutory order without leave which in this case, has not been obtained. Nageon de Lestang, F.J. delivering the judgment of the Court, referred to the test laid down in Bozson v. Altrincham U.D.C. (supra) and said at p. 57:
That test has been applied in a number of cases, and
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applying to the present case, I should have thought that it was unarguable that the order under consideration is interlocutory.
In Blay and Ors. v. Solomon (1947) 12 WACA 175, the action was for possession of property, account of profits and for partition or sale. The trial Judge ordered that an account as between the respondent and third appellant be filed, and that the property be sold by auction. Defendant appealed. Counsel for respondent raised the preliminary objection that the judgment appealed from being interlocutory was out of time, not having been brought within fourteen days of the date of the decision as prescribed by Section 11 (2) West African Court of Appeal Rules 1937.
Verity, C.J., delivering the judgment of the Court, referred to Bozson v. Altrincham UDC (supra) and Ex parte Moore, In re Faithful (supra) and applied the principles enunciated in these cases as conclusive of the case before the Court.
His Lordship said, at p. 177:
The terms of the judgment below do not at once affect the status of the parties, or indeed of any of them, for there is no order consequent upon the enquiries into the accounts, no determination as to
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the proceeds of the sale, no indication of the rights or interests of the parties or any of them in relation thereto, no determination of the plaintiff’s claim against either the first or the second defendant and no order as to, by whom, or to whom, the costs when taxed are to be paid. There is no order for anything to be done without further reference to the Court, and in no sense does it appear from the judgment that the rights of the parties or any of them are finally disposed of. We have no doubt whatever that the judgment appealed from is interlocutory decision.
This judgment was followed in Afuwape and Ors. v. Shodipe and Ors. (1957) 2 FSC. 62, where it was put very succinctly as follows at p. 68:
The judgment of the Court below does not at once affect the status of the parties, neither does it finally dispose of their rights, since it leaves undecided the very point at issue, namely, whether there would be partition or sale.
In Alaye of Effon v. Fasan (1958) 3 FSC 68, the appeal was against the refusal of the trial Judge to set aside the order striking out the suit for non-appearance of plaintiff/appellant. The notice of appeal was within
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time, if regarded as a final decision, but out of time if interlocutory. Onyeama. Ag. J., held it was interlocutory and dismissed the application. Appeal to the Supreme Court was dismissed. Coussey, Ag. FJ. at p. 69, referred to the dictum of Foster Sutton in Bansah v. G.B. Olivant Ltd. 14 WACA 408, where the latter said:
The question for determination is- does the order under appeal finally disposed of the rights of the parties In our view it does not. In re Jerome and Peek v. Peek (1948) 2 All ER. 297, if the learned trial Judge had agreed to review his judgment that decision could clearly not have disposed of the rights of the parties, and a refusal to review does not, because it is the judgment which is the subject of the application for review which finally disposed of the rights of the parties, not the trial Judge’s refusal to review.
I refer also to Nabham v. Nabham (1967) NMLR 130, which was decided on the preliminary objection whether for the purpose of the appeal an order for a decree nisi in a divorce petition was a final or an interlocutory order. No leave to appeal was obtained before the notice of appeal was given. Brett, JSC,
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delivering the judgment of the Court, held that for the purposes of S.117 (2)(a) of the Constitution 1963 (unlike Section 213 (2) of the Constitution, a final decision includes a decree nisi; although he admitted that a decree nisi cannot be regarded as a final decision for all purposes. It is important to observe here that the Court was considering whether an order for a decree nisi was a final order determining the rights of the parties, within the meaning of the expression ‘final’ in Section 117 (2) (a) of the Constitution 1963. Brett, JSC was quick to point out before coming to this conclusion: that ‘Matrimonial causes, with the various issues to which they may give rise (including status, property, alimony and the custody of children) are in a class of their own procedurally) (1967) NMLR at page 135). There is no doubt that this was the overriding consideration for the view finally adopted that ‘If the Court were to hold that a decree nisi was a final decision for the purposes of appeal but not for the purposes of alimony pendente lite, as in Head-Head, it would not involve any new inconsistency.
Since that was presumably the position while Section
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6 of the Federal Supreme Court (Appeals) Ordinance remained in force, (1967) NMLR at P. 135)
With due respect, this reasoning cannot sustain the appeal before us, consistent with the practice of this Court. I cannot conceive of the situation where two final decisions inter parties will be required to determine finally the claim before the Court. This invariably will be the result of accepting appellants contention.
Nabbams case can therefore, safely be limited to its facts and the question of decree nisi in divorce petitions which are, admittedly, sui generis.
There is clearly no doubt that the principle established in all
The dictum of Brett, L.J. has been generally accepted and applied in determining what is a final order or judgment. In Standard Discount Co. v. La Grange (1877) 3 CPD. 67, His Lordship said, at page 71:
No order, judgment or other proceeding 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 for the plaintiff it is conclusive against the defendant, whereas if the application for leave to enter final judgment had failed; the matter
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in dispute would not have been determined.
See also Akinsanya v. UBA Plc [1986] 4 NWLR (pt. 35) 273.
My Lords, I have deliberately, reproduced the above excerpts from the judgement of Karibi-Whyte, JSC, to demonstrate “the perennial difficulty” which the Courts had long been confronted with. Luckily, the difficulty has abated. I am therefore, at a loss as to why this interlocutory appeal has remained here so many years after the highly-illuminating judgement in Omonuwa v Oshodin and Anor (supra).
The excerpts from the judgements cited above, clearly, show that Dr Ibik, SAN, for the respondent/objector was right in his submission. At page 8, [paragraph 6.2], of the respondents brief, he contended that it is beyond argument that the Ruling of the trial Court at pages 65 – 70 of the record did not dispose of the rights of the parties in the subject matter in dispute in the case. The said decision is accordingly interlocutory. This was indeed the firm view of the lower Court at page 220 … of the record.
I entirely, agree with this submission, Omonuwa v. Oshodin and Anor (supra); Gilbert v. Endean (supra); Salaman v. Warner (supra);
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Bozson v. Altrincham UDC (supra); Blay and Ors. v. Solomon (supra); Standard Discount Co. v La Grange (supra); Blakey v Latham (supra); Egerton and Ors v Shlley (supra). Simply put, therefore, the determining factor is not whether the Court has finally determined an issue. It is whether or not it has finally determined the rights of the parties in the claim before the parties, Oguntimehin v. Tokunbo (1957) 2 FSC 56. [1957] SCNLR 187; Afuwape v. Shodipe [1957] SCNLR 265; Akinsanya v. U.B.A. Ltd. [1986] 4 NWLR (pt.35) 273; Ude v. Agu (1961) 1 All NLR 61; [1961] 1 SCNLR 98: Ebokam v. Ekwenibe and Sons Trading Co. Ltd. [1999] 10 NWLR (pt. 622) 242; Kassim v. Ebert (1966) NN1LR 123 at 124; [1966] 1 SCNLR 107; Olufodun and Ors v Toye and Ors (1972) LPELR – 2614 (SC) 10 ; F- G.
The test, as shown above, Dawodu v. Ologundudu[1986] 4 NWLR (pt.33) 104, 110-112 per Nnaemeka Agu JSC; Omonuwa v. Oshodin and Anor. (supra) at page 31 in which Karibi-Whyte, JSC, followed the decisions in Salaman v. Warner (1891) 1 KB.577; Afuwupe and Ors. v Shodipe and Ors. (1957) 2 FSC 62 at 68, is that a decision is final where the dispute between parties has been completely
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brought to an end or where the decision has finally disposed of the rights of the parties in a matter otherwise it would be interlocutory.
Dr Ibik, SAN, was therefore, right in his submission that this failure to obtain Leave renders this appeal incompetent as this Court has no jurisdiction to entertain it, Nalsa and Team Associates v. N.N.P.C [1991] 8 NWLR (pt. 212) 652; S.P.D.C. (Nig.) Ltd v. Katad (Nig.) Ltd [2006] 1 NWLR (pt. 960) 198; Nyambi v. Osadim [1997] 2 NWLR (pt. 485) 1; Olanrewaju v. Ogunleye [1997] 3 NWLR (pt. 485) 12; Emenike v. PDP and Ors [2012] 12 NWLR (pt. 1315) 556, 595; UBN Plc v Sogunro [2006] 16 NWLR (pt.1006) 504; Garuba v Omokhodion (2011) LPELR – 1309 (SC); Abdul v CPC. and Ors. [2014] 1 NWLR (pt.1388) 299; UBN Plc v Sogunro and Ors. (2006) LPELR-3393 (SC)12-13 D-A; [2006] 16 NWLR (pt.106) 504: Metal Construction (West Africa) Ltd. v Migliore [1990] 1 NWLR (pt.126) 299.
The net effect is that the absence of the requisite leave of Court robs this Court of jurisdiction to hear this interlocutory appeal. I shall therefore, enter an order striking out this appeal. I hereby affirm the judgement of the lower Court. Costs in favour of the respondent
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which I assess and fix at Five Hundred Thousand Naira only.
SC.249/2009