Judgment
CHIMA CENTUS NWEZE, J.S.C. (Delivering the Leading Judgment): At the Federal High Court, holden at Abuja, [hereinafter, simply, referred to as “the trial Court”], the respondents in this appeal, (as plaintiffs), commenced an action against the first – seventeenth appellants through a Writ of Summons and Statement of Claim. The eighteenth and nineteenth defendants, whose names were struck out by an order of Court on October 30, 2012, were also parties to the suit.
They sought the following reliefs: (i) An Order of Court for independently audited account of Backbone Connectivity Networks from incorporated (sic) to date; (ii) An Order directing the first plaintiff to submit all its past financial audits and accounts; (iii) An Order directing the first defendant, its directors and shareholders to restructure its equity/shareholding along or in accordance with the agreement reached in 2004; (iv) An Order directing the first defendant to pay to the plaintiffs all profits and dividends that have accrued or is (sic) accruable from the date of incorporation till the date judgement is delivered in this suit; (v) An Order compelling the first defendant, its directors and shareholders to convene an AGM where the plaintiffs will be entitled to vote according to their equity strength; (vi) An Order directing that the plaintiffs be appointed Directors of the first defendant.
As defendants, the first – seventeenth defendants entered a Memorandum of Conditional Appearance.
By Motion on Notice, they, equally, sought the following reliefs: (i) An Order directing a Stay of Proceedings in respect of all disputes subject matter of the Suit between the second plaintiff and second defendant and referring them to arbitration in accordance with paragraph 3.3 of the Settlement Agreement dated November 16, 2007 between both parties; (ii) An Order dismissing this suit as being incompetent for reason that it was not commenced by due process of law as well as on account of lack of jurisdiction.
On May 9, 2013, the trial Court, [Chukwu, J], granted the above first relief. It, however, disallowed the second relief.
Dissatisfied, the appellants herein appealed to the Court of Appeal, Abuja Division, [hereinafter referred to as “the lower Court”], which lower Court ordered that: i) The Writ of Summons and the service thereof on the third; fourth; eighth and twelfth; thirteenth; fourteenth; fifteenth and seventeenth appellants be and are set aside. ii) The Order of the Lower Court: a) Directing the parties to nominate the arbitrators; b) Nominating the Secretary, Nigerian Institute of Arbitration as an arbitrator; and Adjourned (sic) the case to 17/9/2013 for report of the outcome of the arbitration be and is hereby set aside.
The appellants’ appeal is against the above decision of the lower Court. Promptly, the respondents greeted the said appeal with a Notice of Preliminary Objection.
My Lords, as has been settled in many cases before this Court, a preliminary objection is a pre-emptive strike. This is so for its resolution will determine whether or not the appeal will be determined on the merit, Jim-Jaja v C.O.P. Rivers State and Ors (2012) LPELR-20621 (SC) 10 paragraph F.
Thus, once the respondents challenge the jurisdiction of this Court to hear this appeal, through their preliminary objection, it must be resolved before taking any further step in the determination of the appeal, Okoi v Ibiag [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. The reason is not far to seek. If the said objection is upheld, the consequential result would be a finding as to the incompetence of the appeal. There would be, thus, no outstanding live issues for determination, Ahaneku v.
State [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. In consequence, I shall now turn to the said Preliminary Objection.
RESPONDENTS’ PRELIMINARY OBJECTION. At the hearing of this appeal on October 4, 2021, the respondents’ counsel relied on their Notice of Preliminary Objection incorporated in their Brief of Argument. The said preliminary objection challenged the competence of the appeal on the ground that the appeal is incompetent in that leave of Court was not sought and obtained before the application was filed. Counsel contended that the appeal was not proper before this Court and as such, this Court had no jurisdiction to hear or entertain it.
He submitted that the decision of the lower Court was delivered on an interlocutory application. He explained that the subject matter of the appeal arose out of the decision against the ruling of the trial Court. The lower Court upheld the said decision in part.
Citing Gomez and Anor v Cherubim and Seraphim Society and Ors [2009] 10 NWLR (pt. 1149) 223; 246 A-C, he submitted that the decision appealed against was not a final one as all issues were not resolved in favour of the appellants. In his submission, therefore, failure to obtain leave of the lower Court contravened Section 233 (3) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and Section 27 (2) (a) of the Supreme Court Act.
He further submitted that, having filed their appeal out of the fourteen-day period prescribed for appeals against interlocutory decisions, the appellants failed to satisfy all the conditions precedents in bringing the appeal of this nature. Being incompetent, therefore, this Court lacked the jurisdiction to hear this appeal.
Appellants’ Response to the Preliminary Objection In the Reply Brief, learned counsel for the appellants submitted that the Objection was misconceived. He urged this Court to overrule and dismiss it. He forcefully, submitted that this present appeal is not against an interlocutory decision, but one against a final decision of the lower Court on a clear sole ground of law.
He took the view that the judgement of the lower Court of Appeal, which is subject matter of the present appeal, has finally disposed of the rights of the parties with nothing left to be done so that it becomes a final one, notwithstanding the interlocutory nature of its source, citing Ogolo v Ogolo [2006] 5 NWLR (pt 972) 163; 186-187.
RESOLUTION OF THE ISSUE In resolving the preliminary objection, it is important to determine the nature of the decision delivered by the lower Court being appealed against, that is, whether it is a final or interlocutory decision. There is a long line of decided cases on what constitutes a final or interlocutory decision. That notwithstanding, that question keeps coming up in our Courts every now and then.
Now, there is a striking unanimity of juristic and juridical views on this question, see, for example, Bozson v Altrincham UDC (1903) 1 KB 547, 548; Re: Faithful Ex- Parte Moore (1885) 14 QBD 627; Akinsanya v UBA Ltd [1986] 4 NWLR (pt 35) 273; Alor v Ngene [2007] 17 NWLR (pt 1061) 163, 175; 176; Gomez & Anor v Cherubim and Seraphim Society & 4 Ors. [2009] 10 NWLR (pt. 1149) 223, 246; M. M Stanley-Idum and J.A Agaba, Civil Litigation in Nigeria, 638.
It comes to this: in determining whether the decision of a Court is a final or an interlocutory decision, the proper test is that put forward by Alverstone L. CJ in Bozson v Altrincham U.D.C (supra). According to His Lordship: It seems to me that the real test for determining this question ought to be: does the order, as made, finally, dispose of the rights of the parties? If it does, then it ought to be treated as a final order; if it does not, then it is an interlocutory order.
In Re: Faithful Ex-parte Moore (1885) 14 QBD 627, Brett, M.R. said: If the Court orders something to be done according to the answer to the enquiries, without any further reference to itself, the judgement is final. In Akinsanya v UBA Ltd (1986) 4 NWLR (pt 35) 273, one of the issues canvassed was whether the decision of the Court of Appeal, striking out the appellant’s claim, was a final or interlocutory decision.
This Court, applying the nature of the order test, or the test in Bozson v Altrincham (supra), held that the majority in the Court of Appeal, having determined that the trial Court had no jurisdiction, had nothing further to determine with regard to the rights of the parties. The decision was therefore final as being a final decision of the Court of Appeal. Again, in Alor v.
Ngene [2007] 17 NWLR (pt 1061)163, 175; 176, applying this test, this Court held: In a plethora of decided cases, this Court decided that, in this Country, if the order, decision or judgment of a Court finally determines the rights of the parties in the case, it is final. But if it does not, it is interlocutory only. And in order to determine whether the decision is final or interlocutory, the decision must relate to the subject matter in dispute between the parties and not the function of the Court in making the order.
Therefore, the determining factor is not whether the Court had finally determined the issue but it is whether or not it has finally determined the rights of the parties in the claim before the parties. See also Gomez and Anor v Cherubim and Seraphim Society and Ors. [2009] 10 NWLR (pt. 1149) 223, 246.
Turning to the facts of the instant appeal, the lower Court, in affirming the decision of the trial Court that leave was not required for the respondent to institute an action but only in respect of issue and service of writ on the appellants outside the jurisdiction of the Court, ordered that: iii) The Writ of Summons and the service thereof on the third; fourth; eighth and twelfth; thirteenth; fourteenth; fifteenth and seventeenth appellants be and are set aside. iv) The Order of the Lower Court: a) Directing the parties to nominate the arbitrators; b) Nominating the Secretary, Nigerian Institute of Arbitration as an arbitrator; and c) Adjourned (sic) the case to 17/9/2013 for report of the outcome of the arbitration be and is hereby set aside.
In Alor v Ngene (supra) at p.177 E-F, His Lordship, Kalgo JSC held thus: But where the rights or claims of the parties in the action have not been looked into and determined by the Court, they are still pending and the parties can still go back to any Court or indeed the same Court to examine and decide on those rights. Once the judgment has been set aside, the resultant effect is that the appellant’s claims were pending and awaiting a determination one way or the other by the Court. The lower Court has therefore not become functus officio on the footing of the order.
I have reviewed the order or the decision in this ruling. The Learned Justices of the lower Court made no pronouncement on the rights of the parties. Their Lordships decided nothing. This is because they had no intention of deciding anything. They merely sent the parties and their counsel packing from their Court to observe their arbitration proceeding. Their rights remained as wide, open and undecided as they came to the Court. There was no victor; there was no vanquished. The decision of the lower Court was therefore an interlocutory decision.
Section 27 (2) (a) of the Supreme Court Act provides thus: (2) the periods prescribed for giving notice of appeal or notice of application for leave to appeal are: (a) in an appeal in a civil case, fourteen days in an appeal against an interlocutory decision and three months in an appeal against a final decision. [Emphasis supplied] On the heels of the foregoing, the appellants ought to have filed their Notice of Appeal within fourteen (14) days of the decision, Douglas v Federal Public Trustees [1959] SCNLR 26; Alli v Union Trading Company Ltd (1954) 14 WACA 605.
The order was delivered on July 10, 2014.
The birthday of the Order should be excluded from the fourteen days. Thus, the appellants’ right of appeal ripened on July 25, 2014. However, they only approached the Court on August 6, 2014. It is common knowledge that this country is a user of the Gregorian Calendar.
As it is, this appeal was not filed within time. What is more, no application for extension of time was made and obtained. The appellants’ Notice of Appeal was filed in flagrant defilement of the limitation period under Section 27(2) (a) of the Supreme Court Act.
The position of the law is that where an intending appellant runs out of time in appealing against an interlocutory decision, the law grants him an unbridled license to seek for an extension of time. The Court in such an application, always favours him with an indulgence of extension of time, Malari v Leigh (2018) LPELR-43823 (SC). An appeal against an interlocutory decision, filed out of time without leave of Court to extend time within which to appeal, is incompetent and the appellate Court lacks jurisdiction to hear the appeal,Adeleke v Cole [1961] 1 SCNLR 65.
In the final analysis, the Preliminary Objection succeeds. This appeal is hereby struck out for being incompetent. There will be no order as to costs.
MUSA DATTIJO MUHAMMAD, J.S.C.: I read in draft the lead judgment of my learned brother CHIMA CENTUS NWEZE JSC just delivered.
I entirely agree with my lord that being against an interlocutory decision of the lower Court, the appellant must file his appeal with leave of either the Court below or this Court and within fourteen days of the decision appealed against. The appeal filed outside the time allowed by Section 27 (2) (a) and (4) of the Supreme Court Act without an order of this Court enlarging the time within which the appeal shall be filed is undeniably incompetent.
I join my learned brother in sustaining respondent’s preliminary objection and striking out the incompetent appeal. I abide by the consequential orders made in the lead judgment.
UWANI MUSA ABBA AJI, J.S.C.: I have read in advance the draft copy of the lead judgment and I am in complete concurrence with my learned brother, Chima Centus Nweze, JSC, that this appeal be struck out for incompetence.
The competence of the Appellants’ appeal to this Court was attacked by the Respondents vide a preliminary objection on the ground that the appeal being an interlocutory one, needed the leave of this Court first sought and obtained before it was filed.
The present appeal is predicated upon the lower Court’s order made as follows: i) The Writ of Summons and the service thereof on the third, fourth, eighth and twelfth, thirteenth, fourteenth and fifteenth and seventeenth appellants be and are set aside. ii) The Order of the lower Court: a) Directing the parties to nominate the arbitrators; b) Nominating the Secretary, Nigerian Institute of Arbitration as an arbitrator; and c) Adjourned the case to 17/9/2013 for report of the outcome of the arbitration be and is hereby set aside.
It is glaring and apparent that the case was never finally determined by the lower Court since the order was express that the case was not yet finalized on the merits. In fact, it is by the records that the appeal to the lower Court sprang from the ruling of the trial Court, which automatically makes it an interlocutory appeal. Thus, to appeal the ruling from the lower Court to the Supreme Court is still an interlocutory appeal.
The law is clear that the time given for appealing a final judgment and an interlocutory appeal to the Supreme Court is not the same.
Section 27 (1) (2)(a) & (b) of the Supreme Court Act provides: 27. (1) Where a person desires to appeal to the Supreme Court he shall give notice of appeal or notice of his application for leave to appeal in such manner as may be directed by rules of Court within the period prescribed by subsection (2) of this section that is applicable to the case. (2) The periods prescribed for the giving of notice of appeal or notice of application for leave to appeal are- (a) in an appeal in a civil case, fourteen days in an appeal against an interlocutory decision and three months in an appeal against a final decision; (b) in an appeal in a criminal case, thirty days from the date of the decision appealed against.
The wordings of the above provisions are plain and unambiguous. Subsection (2) (a) of Section 27 of the Supreme Court Act simply provides a period of fourteen days within which a person desirous of appealing against interlocutory decision may seek and obtain leave to appeal against such decision. Where an appeal against an interlocutory decision (such as this) filed outside the stipulated time, without the leave of Court, or extension of time given, the appeal will be struck out for being incompetent.
Thus, this instant appeal which the Appellants’ appeal was filed without leave more than fourteen days after the order striking same out was made, the appeal is rendered incompetent… In any situation, where leave is required in filling an appeal and an Appellant outrightly refuses or fails to seek and obtain such leave, he runs the risk of getting his appeal being rendered incompetent and ultimately thrown out… The consequence of failure to seek and obtain leave where the law requires an Appellant to do so before filing his appeal, renders his appeal incompetent and such also, deprives the Appellate Court of jurisdiction to hear it and the Court must therefore strike out that appeal for being incompetent.
See per SANUSI, JSC, in CHIEF B. A. ALLANAH & ORS V. MR. KANAYO KPOLOKWU & ORS (2016) LPELR-40724(SC) (PP. 29-34 PARAS. F-F). The Respondents’ preliminary objection is upheld and the Appellants’ appeal is hereby struck out for incompetence.
ADAMU JAURO, J.S.C.: I had the opportunity of reading before now a draft copy of the lead judgment just delivered by my learned brother, Chima Centus Nweze, JSC. I agree with the reasoning and conclusion contained therein.
The decision of the lower Court was an interlocutory decision against which an appeal may be filed to this Court within fourteen days of its delivery, except an order for enlargement of time is granted by this Court. See Section 27(2)(a) and (4) of the Supreme Court Act as well as ALLANAH & ORS V. KPOLOKWU & ORS (2016) LPELR – 40724 (SC); AFRIBANK (NIG) PLC V. AKWARA (2006) LPELR – 199 (SC).
There is nothing on the record showing that this Court exercised its power under Section 27(4) of the Supreme Court Act in favour of the Appellants by extending the period permitted for them to appeal against the decision of the lower Court or that the Appellants applied to this Court to exercise its power under the aforesaid subsection. In light of the foregoing, the appeal is incompetent, it is dead on arrival and this Court is consequently deprived of jurisdiction to adjudicate over same. The only thing left for the Court to do is to strike it out.
In conclusion, the Respondents’ preliminary objection challenging the competence of this appeal is upheld and the appeal is accordingly struck out. I abide by the consequential orders made in the lead judgment.
EMMANUEL AKOMAYE AGIM, J.S.C.: I had a preview of the Judgment of my learned brother, Lord Justice, CHIMA CENTUS NWEZE, JSC. I completely agree with the reasoning, conclusions, decisions, including the orders therein.