Union Bank of Nigeria Plc V. Boney Marcus Industries Limited & Ors (2000)
LawGlobal-Hub Lead Judgment Report
NSOFOR, J.C.A.
T
his is a ruling on the preliminary objection brought by the plaintiff/judgment creditor/respondent (hereinafter to be referred to simply as the objector) to the appeal from the decision on the 17th of February, 1998 by the Abia State High Court, (Mba Uduma, J) holden in Osisioma in suit No. HOS/229/96.
The ground of objection, the notice of which was filed in this court on the 12th of June, 1998, together with its “particulars” is herein under set down.
“Ground of objection”
“The appeal is interlocutory and filed out of time and therefore the Court of Appeal lacks the jurisdiction to entertain it, there being no application made for leave to file the notice of appeal out of time and there being no leave granted to that effect.
Particulars
(i) The ruling made in the court below on the 17th February, 1998 was interlocutory.
(ii) An appeal against that ruling ought to have been filed within 14 days.
(iii) The notice of appeal in this case was filed on the 27th day of March, 1998 and therefore filed out of time and without leave of court.
(iv) The ruling of the court below on the 25th of May, 1998 to the effect that the notice of appeal is void and incompetent stands and has not been appealed against.
(v) By reasons of the foregoing the notice of appeal is void and the Court of Appeal lacks the jurisdiction to entertain any proceeding based on that.”
The “notice of preliminary objection” was accompanied with an affidavit of nine(9) paragraphs sworn by Chief Boniface Ezissi the Managing Director to the respondent/objector.
And verified therein were some exhibits to which I shall refer in the ruling.
The Facts:-
It is now necessary for me to state fairly fully the facts leading to the appeal and the objection thereto. Judgment in the substantive suit No. HOS/229/96 was given in the court below on the 19th of May, 1997 in the sum of $2,781.70 (United States of American dollars) or its equivalent in Naira in favour of the plaintiff against the defendant (Nichimen Co. (Nig.) Ltd.).
The trial Court further awarded costs of N5,000.00 in favour of the plaintiff against the defendant. The certified true copy of the judgment is Exhibit 1 verified in paragraph 2 of the accompanying affidavit. Later, the plaintiff instituted a garnishee proceeding against Metcome (Nig.) Ltd. and Union Bank of Nigeria Plc. to realise the judgment debt and costs. On the 17th of February, 1998, the court allowed the application.
It ordered as follows:-
“It is hereby ordered pursuant to section 85 of the Sheriffs and Civil Process Law Cap. 118 Laws of Eastern Nigeria, 1963 applicable in Abia State that the money belonging to the judgment debtor in the possession of the 1st Garnishee which money is in the 1st Garnishee’s account with the 2nd Garnishee be attached to satisfy the judgment-debt together with the costs of the garnishee proceedings.”
The ruling and order of the trial court is Exhibit 2 verified in paragraph 4 of the affidavit.
The 2nd garnishee (Union Bank of Nigeria Plc.) was not happy with the order. Not satisfied, indeed dissatisfied and aggrieved with the order and ruling, the 2nd Garnishee, has appealed to the Court of Appeal. The notice of appeal therefrom was lodged in the court below on the 27th of March, 1998.
And this is the ‘casus belli’. It is Exhibit 3, verified in paragraph 5 of the affidavit.
The 2nd Garnishee/appellant, on the heels of Exhibit 3, had applied to the court below by way of motion on notice for a stay of the execution of the ruling and order pending the determination by the Court of Appeal of its appeal. But the application for a stay was refused on the 25th of May, 1998.
The order of refusal or dismissal is Exhibit 4, verified in paragraph 6 of the affidavit. Consequently, the appellant applied to the Court of Appeal by way of a motion on notice filed on the 25/5/98 pursuant to Order 3 rule 3(3) of the Court of Appeal Rules, 1981, for reliefs similar to those refused and dismissed by the court below. There was yet another application to the Court of Appeal by way of a motion on notice filed on the 25th of May, 1998, by the 2nd garnishee/ appellant.
These applications together with the “notice of preliminary objection” came before this court on the 29th March, 2000. Rather than hear the counsel orally on the preliminary objection, the court directed both counsel engaged in the preliminary objection to submit their respective arguments thereon in writing by way of briefs of argument. Counsel to the respondent/objector filed a brief of his argument on the 8th of March, 2000, while the counsel to the 2nd garnishee/appellant filed his brief of argument on the 17th of March, 2000.
Surprisingly, counsel each proceeded to formulate in the brief of argument various issues for determination by the Court of Appeal. In view of what comments I may be disposed to make on those issues as formulated, it is desirable to set down the issues as formulated respectively.
Counsel to the respondent/objector had formulated three (3) issues at page 3 of the brief of argument.
They are:-
“(i) Whether the Court of Appeal can reverse the decision of the court below to the effect that the appeal is out of time and incompetent when there has been no appeal against this decision?.
(ii) Whether the ruling made by the court below on the 17th of February, 1998 was interlocutory or final?.
(iii) If the ruling was indeed interlocutory, is the notice of appeal on the 27th of March, 1998, 38 days after the ruling competent?”.
Counsel for the 2nd garnishee/appellant identified four issues to wit:-
“1. Whether the decision (ruling) of the court below dated 17th February, 1998 now appealed against is an interlocutory decision?.
- If the answer to issue No.1 is in the negative in which case the decision would be final, whether the appellant was required to obtain leave before appealing against the decision.
- Whether having regard to the nature of the application before the learned trial Judge namely application for stay of execution pending the determination of the appeal against the said decision of 17th February, 1998 and Order 3 rule 3(3) of the Court of Appeal Rules as amended the appellant ought to have appealed against the refusal of the application instead of making further application to the Court of Appeal for a stay of execution pending the determination of the appeal.
- Whether the notice of preliminary objection is properly before this honourable court?”.
Pausing here for a while for a comment, a cursory look at the briefs of arguments, shows that the counsel were each competing to excel each other in verbosity in formulating the issues and to exceed each other in the number of issues. One is quick to ask: from which “Grounds of Appeal” are the various issues distilled? But this is not an appeal-case-proceeding. No. But does the one ground of the preliminary objection lend itself to splitting or proliferation of issues for determination? The ground of the objection is clear, simple and settled. The singular question raised in or by the objection was: Whether the decision by the court below on the 27th of February, 1998, appealed from by the “Notice of Appeal” filed on the 27th of March, 1998, was an interlocutory decision. And this is important because section 25 of the Court of Appeal Act No. 43 of 1976; which prescribes “time for appealing” makes a distinction between appeal from an interlocutory decision and a final decision. And because by section 25 sub-section (2) of the Act-
“(2) The periods for the giving of notice of appeal or notice of application for leave to appeal are – (a) In an appeal in a civil cause or matter, 14 days where the appeal is against interlocutory decision and three months where the appeal is against a final decision.”
The preliminary objection came on for hearing on the 26th of October, 2000. Mrs. A.C. Akobundu for the respondent/objector in a short speech in amplification of her brief of argument urged us, just as it was argued in the brief, to hold that the decision of the court below on the 17th of February, 1998 was an interlocutory decision and to uphold and sustain the preliminary objection on that account. Mr. Kanu for the 2nd garnishee/appellant on his part in his oral submission urged us to hold that the ruling was a final decision and on that account to over-rule the objection.
Now, who is right?
Contentions:-
The gist of the contentions by counsel in respondent/objector’s brief as far as they are material and relevant for consideration of the objection, is that the garnishee proceeding ruled upon, on the 17th of February, 1998 was not a substantive suit but an interlocutory proceeding in an already existing suit.
The proceeding was a “species of execution” and which is necessarily ancillary to the substantive suit. Reference was made to “Essays on Civil Procedure” vol. 1 at page 65 by Obi-Okoye; White, Son and Pill v. Stenning (1911) 2 K.B. 418, quoted with approval in S. Raccah v. A. Wahab (1958) NNLR 58 at page 60. It was submitted by counsel in the brief that the Supreme Court in Omonuwa v. Oshodin (1985) 2 NWLR (Pt.10) 924 laid down two tests, (namely (1) “the test of the application made” and (2) “the test of the nature of the order made”) for determining whether a decision be an interlocutory or a final decision.
It was further submitted by counsel in the brief that a decision or judgment is “final, if it finally determines the rights of the parties in the suit. Accordingly, as learned Counsel submitted, the judgment of the court below on the 19th of May, 1997, in the substantive suit No. HOS/229/96 was a final decision. It determined the rights of the parties finally.
Thereafter, as counsel further contended in the brief, the ruling on the 17th of February, 1998, determining the issue of the payment of the judgment-debt out of the judgment-debtor’s funds in the possession of the 2nd garnishee was an interlocutory decision, not final decision, and appealable within 14 days.
Learned Counsel for the 2nd garnishee/appellant in his brief of argument, so far relevant to question in hand, contended that the ruling of the court below on the 17th February, 1998 was a final decision. The ruling and order thereon did not leave anything which would make the parties to go back to the trial court. As the counsel further contended, the order disposed of the matter between the 2nd garnishee/appellant and the judgment-creditor/respondent-objector, finally. It was the contention by the counsel in the brief that test for determining whether a decision is a final decision is “the nature of the order made test “. That the courts have adopted the test, counsel cited and relied on M. O. Akinsanya v. United Bank for Africa Ltd. (1986) 4 NWLR (Pt.35) 273; (1986) 7 SC. (Pt.1) 233 and a long line of other cases not necessary for me to reproduce here and now.
Learned counsel submitted at page 9 of the brief of argument that S. Raccah v. Wahab (supra) and the reference to “Essays on Civil Procedure”, vol. 1 at page 60 (supra) by the counsel for the respondent/objector were inapplicable and on that account irrelevant because as the counsel sought to distinguish, the S. Raccah case (supra) dealt with a Decree nisi. The S. Raccah case (supra) was not a final decision. It was an interlocutory decision.
Consideration:- There is no doubt that the question whether a decision of a court is a final or an interlocutory decision is not free from difficulty.
And the Supreme Court, those voices of infallibility, has recognized the difficulty as observed by Karibi-Whyte, J.S.C. in the Omonuwa v. Oshodin (1985) case (supra) at page 932:-
“The question whether a decision of a court is interlocutory or final has been one of perennial difficulty for the courts.
The difficulty stems from lack of precision or certainty in the definition of words or uncertainty in the judicial decisions on the issue……Although s.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 the Supreme Court Act, Court of Appeal Act or in the Constitution. In the circumstances resort ought to be had to the judicial decisions” .
It is clear to me that there is no difficulty in agreeing that every judgment on the merits is a final judgment.
Many of the cases dealing with the distinction between interlocutory and final decisions even talk of “determination of rights of the parties”, “final determination of the substantive issues”, enabling the court ultimately to decide upon the rights of the parties. But it ought, however, to be borne in mind that not every final judgment is a judgment on the merits.
When as in a case on an appeal the radical issue is jurisdiction or lack of it or, whether the plaintiff has or lacks the locus standi to prosecute the suit, a final decision can be given which does not affect the rights of the parties or the merits of the case.
It was submitted by counsel, Mrs. A.C. Akobundu, that the decision or judgment in the substantive suit No. HOS/229/96 (see Exhibit 1 (supra)) on the 19th of May, 1997, was a final judgment. No one would ever dispute that. I am in agreement fully with the submission.
It was a judgment on the merits of the case, a “determination of the rights of parties”.
Now, the important question arising becomes this:
After such a “determination of the rights of the parties” would there ever be new rights requiring to be further determined between the parties? And when the plaintiff judgment-creditor (herein the respondent/objector) instituted the garnishee proceedings, was all he did not the working out of the direction contained in the final judgment; an enforcement of the rights already established? I shall decline to record an opinion on either of the above posers here and now. However, in the Omonuwa v. Oshodin case (supra) Karibi-Whyte, J.S.C. observed at page 938, inter alia, as follows:-
“An action is commenced by a writ of summons, originating summons or by any other method provided by the rules of court. It is normally terminated by a judgment of the court determining the rights of the parties which are the issues joined in the case. Any other process determining an issue or issues between the parties or indeed determining the rights of the parties to the action can only be regarded as an interlocutory application”.
I am fortified by the above observation to hold that the garnishee proceedings in the court below were no more than an interlocutory application. Pure and simple. It was a form of execution of the judgment on the 17th May, 1997. Thus, as observed by Farwell, L.J., in White, Son & Pill v. Stennings (1911) K.B. 418 at page 428:-
“The garnishee process in both the High Court and the County Court is, in my opinion, intended to have the effect of process by way of execution of a judgment. It may not be execution in the strict technical sense, but the intention of Order XLV v. 1 of the Supreme Court Rules was, as pointed out in the Annual Practice for 1911 vol. 1 pp. 701, 702, to render property available for the purpose of satisfying a judgment in all Divisions of the High Court which before the Common Law Procedure Act, 1854, was not so available…….”
And per Kennedy, L.J. at page 431:-
“In my opinion, it is in its nature essentially a method of execution. It is one of the kinds of execution which is contemplated in order XLII of the Supreme Court. It is one method of enforcing a judgment for payment of a sum of money”.
Holding, as I do, that the garnishee proceeding on which the court below ruled on the 17th of February, 1998, was an interlocutory proceeding, I now proceed to consider some judicial decisions as to the nature of the ruling in order to guide me in reaching my conclusion. Firstly, Blakey v. Latham (1890) 43 Ch.D. 23.
The Blakey v. Latham case (supra) was an appeal from the order by Kay, J. on an application after final judgments, for liberty to set off against the costs payable to the defendant under that order certain costs payable to the plaintiff by the defendant. On appeal, the only question was whether the order appealed from was interlocutory.
The observation per Cotton, L.J. at pages 25/26 merits my respectful quotation, in extenso:-
“In one sense every order comes to an end when judgment is delivered, but it does not come to an end so far as working out the directions contained in it is concerned. 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. In the present case, there have been judgments given, one of which gives costs to the defendant, Lowden, the other two give costs to the plaintiff. The order which was appealed from (I do not enter at all into the question whether it was right or wrong) was an order which directed how those directions in the final judgments were to be worked out. That in my opinion is interlocutory and not final, and therefore this appeal, if brought at all, ought to have been brought within the time limited for interlocutory appeals”.
And Fry, L.J. at page 26 (I beg to respectfully quote him in totality) said:-
“I am of the same opinion. I am glad 1 am not called upon to give anything like an exhaustive definition of the word, “interlocutory” but of this I am clear – that where a final judgment has been pronounced in an action, and subsequently an order has been obtained for the purpose of working out the rights given by the final judgment, that order has always been deemed and rightly deemed, to be interlocutory. This is such an order, and therefore the notice of appeal was given too late.”
I, now, advert to Aminu Akindele Ajayi Ojora v. lasisi Ajibola Odunsi (1964) 1 All NLR 55 where Taylor, J.S.C. at pages 58/59 observed:-
“Now having succeeded in establishing those rights, the plaintiff quite naturally expects the defendants to give effect to them by obeying the order of court. The defendants have failed to do this and their failure amounted to a disobedience of the order of court. It should be borne in mind from the passages in the judgment to which reference has been made, that the disobedience was the failure of the appellants to file an account at the time they should have done so.
The rights of the parties in this respect had already been finally determined by the judgment of the 8th June, 1961. The application, before the High Court, was not seeking the determination of new rights but the enforcement of the rights already established. In our view and for these reasons the judgment or order was an interlocutory one in respect of which the leave of the court is required before an appeal to this court can be entertained”.
(The italics is supplied)
Conclusion:-
My conclusion on the preliminary objection becomes rather obvious. From all I have been trying to say above and guided by the principles above discussed, it is sufficient for me now, to ask:-
Q.( 1):- Was the ruling or order on the 17th February, 1998 appealed from on the 27th March, 1998, an interlocutory decision?
Ans:- The answer, certainly, in my respectful opinion, is a capital YES. Therefore, the appeal, if brought at all, ought to be brought within the time limited for interlocutory appeals. See section 25(2)(a) of the Court of Appeal Act (supra).
Q.(2):- The appeal having been brought or lodged on the 27th March, 1998, was it competent?
Ans:- The answer most certainly is that it was brought too late. Put it rather nakedly, the notice of appeal is not competent. It is incompetent.
In the final result, there is some merit in the preliminary objection. It, therefore, succeeds and is sustained.
The respondent/objector shall be entitled to the costs which are assessed at N5,000.00.
Other Citations: (2000)LCN/0914(CA)