Total International Limited V. Prince A. O. Awogboro (1994)

LawGlobal-Hub Lead Judgment Report

ONU, J.S.C. 

This interlocutory appeal arises out of an application made to the Court of Appeal sitting in Lagos for leave to amend the Notice and Grounds of Appeal filed against the decision of Balogun, J., given on the 10th day of May, 1991 wherein he entered judgment in favour of the plaintiff, herein respondent, for $25,659.055.25 (now about N40 million) and other sums plus interest.

The appellant as defendant, in the trial Court had proposed to amend the Notice and Grounds of Appeal in the Court below by adding several additional grounds, but learned counsel for the respondent opposed four of those grounds, to wit grounds 1, 2, 3 and 4 for which see pages 43-48 of the Record, as being grounds of fact or mixed law and fact which therefore needed leave.

As transpired, the court below upheld the objection to these four proposed grounds of appeal by a Ruling – for which see pages 3 – 20 of the Record in which it stated inter alia (per Kalgo, J.CA. and concurred in by Achike and Tobi J.J.CA.) to the effect that –

(i) The four grounds of appeal are complaining against interlocutory order made ex parte by Ilori, J.

(ii) These four grounds of appeal cannot therefore be filed as of right because leave of court ought to be obtained before they can be competent and arguable grounds of appeal.

(iii) The reason why leave must be obtained is that they are not grounds of law alone but are grounds of fact and of mixed law and fact.

(iv) These grounds are not competent in so far as they are related to the interlocutory Ruling or Order of Ilori, J., made on 29th May, 1989.

It is pertinent for a better appraisal of this appeal to give the background setting or facts relevant thereto as follows:-

I. Before Ilori, J., the plaintiff/respondent made an application exparte in Suit No. ID/224M/89 for an order:-

(a) for leave to issue a Writ of Summons for service on the defendant/appellant outside jurisdiction

(b) dispensing with personal service and that the defendant/appellant be served through the Chambers of Chief F.R.A. Williams.

II. Before Balogun, J., a Writ of Summons in Suit No. ID/794/89, which came later for adjudication i.e. after the ex parte application before Ilori, J., in I above, by the plaintiff/ respondent for:-

(i) the sum of $25,659,055.25 cents being commission due to him etc.