ALAYE IWO & ORS v. UNITED BANK FOR AFRICA PLC (2017)

ALAYE IWO & ORS v. UNITED BANK FOR AFRICA PLC

(2017)LCN/9493(CA)

In The Court of Appeal of Nigeria

On Monday, the 13th day of February, 2017

CA/PH/238/2011

RATIO

APPEAL: DUTY OF COURT TO DETERMINE PRELIMINARY OBJECTION FIRST
It is the duty of any Court where a preliminary objection has been raised to the competence of an action to determine the objection first before looking into the substantive matter if need be. For if the objection succeeds, the action is terminated in-limine as the Court will then be devoid of jurisdiction to venture into entertaining the substantive action. However, if the objection fails, then the Court will proceed to determine the substantive action on its merits. See the cases of: (1) Onyekwuluje v. Animashaun (1996) 3 N. W. L. R. (Pt. 439) p. 637 at p. 644; (2) Dapianlong v. Dariye (2007) 8 N.W.L.R. (Pt. 1036) p. 332 and (3) A.- G. Lagos State v. A.- G., Federation (2014) LPELR ? SC. 20/2008.
The law is settled beyond any shadow of doubt that the issue of both competence of any action and jurisdiction of the Court is very basic and fundamental. This is because the validity of an action including an appeal vide their originating processes that is, a Writ of Summons/Originating Summons and Notice of Appeal as in one instant matter, before a Court is sine qua non, an indispensable condition and necessary for the competence of the suit and indeed proceedings initiated by such processes. Put in other words, the competence of an originating process is a pre-requisite for a valid claim. Therefore where the originating process fails to comply with the requirements of the law regulating its procedure, the action is rendered a nullity ab initio and the Court cannot assume jurisdiction thereupon. See the cases of: (1) Madukolu v. Nkemdilim (1962) 2 NSCC p. 374 at pgs. 379 -380; (2) Okafor v. Nweke (2007) 10 N.W.L.R. (Pt. 1043) p. 521; (3) S.L.B. Consortium Ltd. v. N.N.P.C. (2011) 9 N.W.L.R. (Pt. 1252) P. 317 and (4) Braithwaite v. Skye Bank PLC (2013) 5 N.W.L.R. (Pt. 1346) p. 1. In the locus classicus case of: Madukolu v. Nkemdilim (supra), the principle of law enunciated therein is as follows:
Put briefly, a Court is competent when (1) it is properly constituted as regards numbers and qualification of the members of the bench, and no member is disqualified for one reason or another; and (2) the subject matter of the case is within its jurisdiction; and (3) the case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction. Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided, the defect is extrinsic to the adjudication. PER OYEBISI FOLAYEMI OMOLEYE, J.C.A.

APPEAL: THE RIGHT OF APPEAL AND CIRCUMSTANCES OF APPEAL AS PROVIDED BY STATUTES
It is pertinent for good understanding to reproduce the relevant provisions of the Constitution of the Federal Republic of Nigeria, 1999 as amended, touching on appeals as of right and appeals with leave. They are Sections 241 (1) and 242 (1) and provide as follows:
241.(1) An appeal shall lie from decision of the Federal High Court or 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 Federal High Court or a High Court sitting at first instance;
(b) where the ground of appeal involves questions of law alone, decisions in any civil criminal proceedings:
(c) decisions in any civil or criminal proceedings on questions as to the interpretation or application of this Constitution;
(d) decisions in any civil or criminal proceedings on questions as to whether any of the provisions of Chapter IV of this Constitution has been, is being or is likely to be, contravened in relation to any person;
(e) decisions in any criminal proceedings in which the Federal High Court or a High Court has imposed a sentence of death;
(f) decisions made or given by the Federal High Court or a High Court
(i) where the liberty of a person or the custody of an infant is concerned,
(ii) where an injunction or the appointment of a receiver is granted or refused,
(iii) in the case of a decision determining the ease of a creditor or the liability of a contributory of other officer under any enactment relating to companies in respect of misfeasance or otherwise,
(iv) in the case of a decree nisi in a matrimonial cause or a decision in an Admiralty action determining liability, and
(v) in such other cases as may be prescribed by an Act of the National Assembly.
242(1) Subject to the provisions of Section 241 of this Constitution, an appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal with the leave of the Federal High Court or that High Court or the Court of Appeal.
Section 241 (1) and 242 (1) create two different rights of appeal, namely:-
(i) Right of appeal as of right and
(ii) Right of appeal with leave of Court.
What this means is that an intending appellant can validly exercise his right of appeal as of right at will within the time fixed by Statute. Whereas leave of the Court below or the appellate Court is a condition precedent to his exercise of the right of appeal with leave. It is settled law that where the condition precedent is necessary but has not been fulfilled, there is no valid appeal. Any notice of appeal of Court of first instance in final decisions and all decisions, that is both final and interlocutory filed upon questions of law alone are as of right- Section 241 (1) (a) and (b). However, in any notice of appeal filed upon only facts or mixed law and facts, leave of Court is a requirement Section 242 (1). Hence, in the latter scenario where leave is necessary, the notice of appeal filed without leave is rendered null and void and of no effect. See the cases of: (1) Nalsa & Team Asso. v. N.N.P.C. (1991) 8 N.W.L.R (Pt.212) p. 652; (2) Irhabor v. Ogaiamien (1999) 8 N.W.L.R (Pt.616) p. 517; (3) Abubakar v. Waziri (2008) All F.W.L.R (Pt. 436) p. 2025 at p. 2037; (4) Abdul v. C.P.C. (2013) LPELR, 20597 (SC) and (5) F.R.N. v. Dairo (2015) LPELR, 24303 (SC). PER OYEBISI FOLAYEMI OMOLEYE, J.C.A.
JUDGEMENT: FINAL DECISION OF THE COURT DISTINGUISHED FROM INTERLOCUTORY DECISION
The law distinguishes a final decision from interlocutory decision. A judicial decision is deemed to be final when it leaves nothing to be judicially determined or ascertained thereafter, in order to render it effective and capable of execution and it is absolute, complete, certain and when it is not lawfully subject to subsequent decision, review or modification by the Court or Tribunal which pronounced it. On the other hand, an interlocutory decision is an order that relates to some intermediate matter in the case, any order than a final order. See Blacks Law Dictionary, 7th Edition at page 819. The definition of interlocutory decision was aptly stated in the case of: Omonuwa v. Oshodin (1985) N. W. L. R. (Pt. 10) p.924 per Nnamani, J.S.C. (of blessed memory), in the following words:
What is an interlocutory decision? In the Dictionary of English Law by Earl Jowitt, it is defined thus: a proceeding in an action is said to be interlocutory when it is incidental to the principal object of the action, namely the judgment. Thus interlocutory applications in an action include all steps taken for the purpose of assisting either party in the prosecution of his case, whether before or after final judgment; or of protecting or otherwise dealing with the subject matter of the action before the rights of the parties are finally determined. (The underlining is mine for emphasis).
Therefore, where the decision does not ultimately determine the issue or issues between the parties or does not at once affect the status of the parties for whichever side the decision is rendered, it is interlocutory. See the cases of: (1) Alor v. Ngene (2007) 17 N.W.L.R. (Pt. 1062) p. 163 and (2) Gomez v. Cherubim and Seraphim Society (2009) 10 N.W.L.R. (Pt. 1149) p. 223. PER OYEBISI FOLAYEMI OMOLEYE, J.C.A.

COURT: INSTANCES THE COURT OF APPEAL WILL NOT DETERMINE ISSUES BEFORE IT
As a general rule, an intermediate Court, like the Court of Appeal has a duty to pronounce on all the issues before it. However, there are exceptions to the foregoing rule. Thus for example, where the Court of Appeal decides that it lacks jurisdiction in an appeal before it, it becomes unnecessary for the Court of Appeal to consider other issues. PER OYEBISI FOLAYEMI OMOLEYE, J.C.A.
APPEAL: EFFECT OF BAD APPEAL PROCESS
Where a process intended to Commence an action, suit or an Appeal is fundamentally bad, it is bad for all purposes as nothing useful can come out of it as held in Macfoy vs. U.A.C (1961) 3 ALL ER 1169, 1172. It is trite that a competent Notice of Appeal is the bedrock or foundation of any appeal before the Court. Where a Notice of Appeal is incompetent, as in the instant matter, it is liable to be struck out. See: Uwazurike v. A.G. Federation (2007) 8 NWLR (pt.1035) 1; NIWA vs. SPDC (2007) 1 NWLR (pt.1015) 305. PER SAIDU TANKO HUSAINI, J.C.A

JUSTICES

OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria

JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria

SAIDU TANKO HUSAINI Justice of The Court of Appeal of Nigeria

Between

1. ALAYE IWO
2. JOHNBULL AMASIBO
3. FUBARA IGBALIBO
4. JAMES OMOH
(For themselves and on behalf of the 929 Members of Alaye Iwo Fishing Group of Belema Community in Akuku-Toru LGA of Rivers State. Suing by their Lawful Attorney, Blesson Resources International Ltd.) Appellant(s)

AND

UNITED BANK FOR AFRICA PLC Respondent(s)

OYEBISI FOLAYEMI OMOLEYE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the High Court of Rivers State sitting in Port Harcourt Judicial Division (hereinafter called ?the trial Court?) delivered on 11th of March, 2011 in Suit No: PHC/594/2010.

The brief background facts of the appeal are that, on 18th June, 2010, the trial Court granted the Appellants who were Claimants before it an order to enter their suit against the Respondent as Defendant for hearing on the undefended list. However, by a motion on notice dated and filed at the trial Court on 29th September, 2010, the Respondent sought the following orders to wit:
1. An order extending the time within which the Defendant/Applicant may file and serve its Notice of Intention to Defend and Affidavit Disclosing defence on the merit.
2. An order deeming the Notice of Intention to Defend and the Affidavit Disclosing defence on merit filed along with the Notice.
3. And for such further or other order(s) as this Honourable Court may deem fit to make in the circumstance.

The Respondent consequently filed a written

address in support of the motion. Although the Appellants did not file a Counter-Affidavit, they filed a written address on points of law in opposition to the motion of the Respondent. The trial Court in a considered Ruling delivered on 11th March, 2011, found merit in the application of the Respondent, granted it, amongst others, extension of time to file and serve out of time its Notice of Intention to Defend the suit of the Appellants, the Affidavit Disclosing defence on the merit and the Notice of Intention to Defend, the Affidavit Disclosing defence on the merit already filed by the Respondent were deemed properly filed and served. The matter was therefore adjourned to enable the trial Court decide whether the Notice of Intention to Defend and the said supporting Affidavit had disclosed a defence on the merit.

?The Appellants irked by the decision of the trial Court filed this appeal against it vide their Notice of Appeal of two grounds of appeal dated 11th March, 2011 and filed on 15th March, 2011. For proper understanding and quick referencing, the two grounds of appeal with their particulars and the reliefs sought are hereunder reproduced

unedited as follows:
GROUNDS OF APPEAL
(a) The learned trial judge erred in Law and this has occasioned grave miscarriage of justice when she failed to her in exercise her discretion in granting extension of time to the Respondent, judiciously and judicially.
PARTICULARS OF ERROR
i. This Suit was brought and entered for hearing on the undefended list.
ii. The Respondent did not file any notice of intention to defend within the time prescribed by the Rules of Court.
iii. The trial Court exercised its discretion ordering time to be extended when there was no explanation as to why the Defendant ran out of time.
iv. It is settled law that the discretion of a regular Court of law must be exercised judiciously and judicially upon relevant and cogent materials placed before the Court by the Applicant.
v. The Respondent did not supply the Court with any relevant material upon which the Court would base the exercise of its discretion.
(b) The learned trial judge erred in law and this has led to miscarriage of justice when she held that she was satisfied with the Respondent?s Affidavit in support

of their motion on notice particularly paragraphs 4 and 5 of the said affidavit, whereas there was no relevant materials upon which she came to the said conclusion.
PARTICULARS OF ERRORS
i. The eleven paragraph affidavit in support of the respondent?s motion was deposed to by one Franklin Umebido, a Legal Assistant in the Law Firm of the Respondent?s counsel.
ii. Frank Umebido in his affidavit did not claim responsibility for the delay or negligence in complying with the Rules of Court.
iii. The affidavit evidence of the Respondent is completely empty as they failed woefully to discharge the burden cast on it by law for the exercise of the discretion of the Court.
iv. The learned trial judge failed to apply the principles decision in BANK OF BARODA AND ANOR V. MERCANTILE BANK (NIG) LTD (1987) 3 N.W.L.R Pt. 60, 233 at 239 paras G-H, 241-243, paras H-B, to which her attention was drawn and thereby infringed on the Appellants? right to ?balanced justice?.
v. It is settled law that extension of time is not to be granted as a matter of routine course or favour by trial Judge.
(c) Further

or additional ground(s) may be filed upon receipt of records of appeal.
3. RELIEFS SOUGHT FROM THE COURT OF APPEAL.
i. To allow the Appeal.
ii. To set aside the Ruling of the Lower Court, dismiss the Respondent?s motion for extension of time and enter judgment on the undefended list in favour of the Appellants.

The Respondent has filed a Notice of Preliminary Objection to the appeal of the Appellants and sought the order of this Court striking out the appeal for incompetence and concomitantly the lack of jurisdiction of this Court to entertain the appeal. The grounds upon which the preliminary objection is predicated are as follows:
1. The present appeal is an interlocutory appeal which touches on the exercise of discretion by the Learned trial Judge to extend the time within which the Respondent would file its Notice of Intention to Defend.
2. The present interlocutory appeal requires the leave of either the lower Court or the Court of Appeal before the Appellants could file an appeal.
3. The leave envisaged under Section 241 and 242 of Constitution of the Federal Republic of Nigeria 1999 (as amended) is

a condition precedent to exercise of the right of appeal under the said Sections and where the required leave is not obtained before an appeal is filed, the appeal is incompetent.
4. In an interlocutory appeal, when the grounds of appeal are against the exercise of the discretion of the trial Judge to extend the time within which the Respondent would file and serve its Notice of Intention to Defend, such grounds are on mixed law and fact, thus the leave of the lower Court or the Court of Appeal must be first sought and obtained before same is filed.

In tune with the Rules of practice of this Court, the learned counsel for the respective parties filed and exchanged briefs of argument. The learned Counsel for the Appellants, Mr. E. B. Ukiri settled the Appellants? Brief of Argument dated and filed on 15th June, 2011. In the brief, two issues were distilled from the grounds of appeal for determination. The two issues state as follows:
(i) Whether or not there was any material supplied by the Respondent up which the trial Court based the exercise of its discretion in the Respondent?s favour to extend the time within which to file

and serve the Notice of Intention to Defend and the Affidavit allegedly disclosing a defence on the merit?
(ii) Whether or not in the absence of relevant materials, the trial Court was right to have granted extended time to the Respondent?

By the order of this Court granted on 24th February, 2015, the Amended Respondent?s Brief of Argument dated 5th January, 2015 filed on 27th January, 2015 was deemed properly filed and served on 24th February, 2015. The learned Counsel for the Respondent, Mr. Anthony Enyindah settled the said brief and in it, he donated for the determination of the appeal a sole issue which reads as follows:
Whether from the facts and circumstances of this case, particularly the Affidavit evidence before the trial Court and the provisions of the Rules of the High Court of Rivers State, the learned trial Judge was right when His Lordship granted the Respondent an extension of time within which to file its Notice of Intention to Defend?

The arguments advanced in buttressing the Respondent?s preliminary objection are contained in paragraphs 4.29 at page 13 through to paragraph 4.33 at page 13 of the said

amended Respondent?s brief of argument.

In response to the Respondent?s notice of preliminary objection and amended brief of argument, the Appellants? Reply Brief of Argument dated 3rd March, 2015 was filed the same date. The arguments proffered by the Appellants? counsel urging upon this Court to reject the preliminary objection of the Respondent are contained in paragraphs 1.00 to 1.02 at pages 1 to 2 and paragraphs 1.07 to 1.09 at pages 3 to 5 all of the Appellants? reply brief.

It is the duty of any Court where a preliminary objection has been raised to the competence of an action to determine the objection first before looking into the substantive matter if need be. For if the objection succeeds, the action is terminated in-limine as the Court will then be devoid of jurisdiction to venture into entertaining the substantive action. However, if the objection fails, then the Court will proceed to determine the substantive action on its merits. See the cases of: (1) Onyekwuluje v. Animashaun (1996) 3 N. W. L. R. (Pt. 439) p. 637 at p. 644; (2) Dapianlong v. Dariye (2007) 8 N.W.L.R. (Pt. 1036) p. 332 and (3) A.- G.

Lagos State v. A.- G., Federation (2014) LPELR ? SC. 20/2008.

The law is settled beyond any shadow of doubt that the issue of both competence of any action and jurisdiction of the Court is very basic and fundamental. This is because the validity of an action including an appeal vide their originating processes that is, a Writ of Summons/Originating Summons and Notice of Appeal as in one instant matter, before a Court is sine qua non, an indispensable condition and necessary for the competence of the suit and indeed proceedings initiated by such processes. Put in other words, the competence of an originating process is a pre-requisite for a valid claim. Therefore where the originating process fails to comply with the requirements of the law regulating its procedure, the action is rendered a nullity ab initio and the Court cannot assume jurisdiction thereupon. See the cases of: (1) Madukolu v. Nkemdilim (1962) 2 NSCC p. 374 at pgs. 379 -380; (2) Okafor v. Nweke (2007) 10 N.W.L.R. (Pt. 1043) p. 521; (3) S.L.B. Consortium Ltd. v. N.N.P.C. (2011) 9 N.W.L.R. (Pt. 1252) P. 317 and (4) Braithwaite v. Skye Bank PLC (2013) 5 N.W.L.R. (Pt. 1346) p. 1. In the locus

classicus case of: Madukolu v. Nkemdilim (supra), the principle of law enunciated therein is as follows:
Put briefly, a Court is competent when (1) it is properly constituted as regards numbers and qualification of the members of the bench, and no member is disqualified for one reason or another; and (2) the subject matter of the case is within its jurisdiction; and (3) the case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction. Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided, the defect is extrinsic to the adjudication.

The learned Counsel for the Appellants in the reply brief of the Appellants has also challenged the competence of the preliminary objection of the Respondent, in one breath that, it was not raised and argued in the Respondent?s brief of argument in line with the provisions of Order 10 Rule 1 of the old Court of Appeal Rules, 2011 as amended, and in the same breath that the preliminary objection having been commenced by way of motion ought to have been supported by an affidavit in

pursuance to the provisions of Order 7 Rule 1 of the Court of Appeal Rules (supra).

The law is now fairly settled that the ideal mode of raising a preliminary objection in an appeal is vide a Notice of Preliminary Objection filed by the Respondent?s Counsel, setting out the grounds of the objection and incorporating the arguments in its support in the Respondent?s brief of argument. See the cases of: (1) Abioye v. Afolabi (1998) 4 N.W.L.R. (Pt. 545) p. 296 and (2) Anukam v. Anukam (2008) 5 N.W.L.R. (Pt.1081) p. 455 at p. 478, paras. C.-H. This exact procedure was employed by the learned Counsel for the Respondent in the instant matter. He filed a Notice of Preliminary Objection dated 5th January, 2015, filed on 27th January, 2015 setting out therein the grounds for the objection pursuant to Order 10 Rule 1 of the old Court of Appeal Rules, 2011. Contrary to the assertion of the Appellants? counsel, the Respondent did not file a motion which must as of necessity be accompanied with an affidavit in support thereof. As earlier on above in this judgment adverted to, the arguments in respect of the notice of preliminary objection are embedded

in paragraph 4.29 at page 13 to paragraph 4.33 at page 14 of the amended Respondent?s brief of argument filed pursuant to the order of the trial Court made on 24th February, 2015, which order subsists, the learned Counsel for the Appellants not having filed an appeal against it. What is more, it is now settled law and the Supreme Court followed by this Court has taken the view that a respondent who intends to challenge the competence of an appeal has the option to raise an objection to it either by filing a notice of preliminary objection giving the appellant three clear days? notice before the date of the hearing of the appeal pursuant to the rules of the Courts or by incorporating the objection in the respondent?s brief of argument or both. The Respondent in the instant matter employed both modalities, making him inerrable on this point. Much more so, the Appellants herein have joined issues with the Respondent on the objection in paragraphs 1.00 to 1.02 at pages 1 to 2 and paragraph 1.07 at page 3 to paragraph 1.09 at page 5 of the Appellants? reply brief of argument dated and filed on 3rd March, 2015. See the opening paragraph

thereof as follows:
This Reply Brief of Argument is in response to the Amended Respondents? Brief and the Notice of Preliminary Objection filed on 27th January, 2015 (The underlining is mine for emphasis).
All in all, the true intendment of employing the procedure is in compliance with the rules of practice that parties must put their adversaries on full notice of what they intend to rely upon in prosecuting or defending their case, as the case may be and not spring a surprise on the adversary. Therefore, even failure to bring the notice in accordance with the provisions of the rules of Court will not render it ineffective. On this positions of the law, see the cases of: (1) Ajide v. Kelani (1985) 3 N.W.L.R. (Pt. 12) p. 248; (2) Agbaka v. Amadi (1998) 11 N.W.L.R. (Pt. 572) p.16; (3) Auto Import Export v. Adebayo (2002) 18 N.W.L.R. (Pt. 799) p. 554; (4) Magit v. University of Agriculture, Makurdi (2005) 19 N.W.L.R. (Pt.959) p. 211 and (5) Wema Securities and Finance PLC v. Nigeria Agricultural Insurance Corp. (2015) LPELR ? 24833. The sub-objection, if I may use the word, of the Appellants? learned Counsel to the competence of

the Respondent?s preliminary objection is therefore discountenanced.
?
I shall now proceed to the consideration of the points of the substantive preliminary objection of the Respondent. The learned Counsel for the Respondent has rightly asserted that the present appeal is an interlocutory appeal which touches on the exercise of discretion of the trial Court in granting an extension of the time within which the Respondent was to file its Notice of Intention to defend the suit filed by the Appellants against it at that Court. That being an appeal against the exercise of discretion, it is on mix law and facts. He referred to Sections 241 (1) (a) and (b) and 242 (1) of the Constitution of the Federal Republic of Nigeria, 1999 as amended. He submitted that, the right of appeal to the Court of Appeal is exercisable only with the leave of either the Federal High Court or High Court of a State or High Court of Federal Capital Territory, Abuja or the Court of Appeal, in an appeal against the interlocutory decisions of the Federal High Court or High Court of a State or High Court of Federal Capital Territory, Abuja except for such interlocutory decisions which

involve questions of pure law alone. On this position, he relied on the case of: National Inland Waterways Authority v. The Shell Petroleum Development Company of Nigeria Limited (2007) 1 N.W.L.R. (Pt. 1015) p. 305 at pgs. 326 ? 327, paras. E ? C. He went further to submit that since the instant appeal is against an interlocutory decision involving question of mixed law and facts, the leave of the trial Court or this Court ought to have been first sought and obtained before filing same, for that is a mandatory requirement of the law. Failure to comply and obtain leave renders the notice of appeal on such matters incompetent and the notice of appeal is liable to be struck out. He relied on this legal position on the case of: Khalil v. Yar?Adua (2003) 16 N. W. L. R (Pt. 847) p. 446 at p.479, paras. E ? G.

Contrariwise, the learned Counsel for the Appellants argued that the instant appeal being against the order granting the Respondent?s application for extension of time was a final decision, having disposed off the application, that is, the issue of extension of time having been completely determined with nothing left to be

further considered by the trial Court in the matter. Hence, the Appellants did not require leave to appeal against the said order. In this wise, he relied on the case of: Iwueke v. F.B.C. (2005) 17 N.W.L.R. (Pt. 955) p. 447 at p. 467, paras. D ? G. The learned Counsel further submitted but without any elaboration that the grounds of appeal in the instant case are of law alone, not requiring the leave of Court to appeal against it.

It is pertinent for good understanding to reproduce the relevant provisions of the Constitution of the Federal Republic of Nigeria, 1999 as amended, touching on appeals as of right and appeals with leave. They are Sections 241 (1) and 242 (1) and provide as follows:
241.(1) An appeal shall lie from decision of the Federal High Court or 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 Federal High Court or a High Court sitting at first instance;
(b) where the ground of appeal involves questions of law alone, decisions in any civil criminal proceedings:
(c) decisions in any civil or criminal proceedings on

questions as to the interpretation or application of this Constitution;
(d) decisions in any civil or criminal proceedings on questions as to whether any of the provisions of Chapter IV of this Constitution has been, is being or is likely to be, contravened in relation to any person;
(e) decisions in any criminal proceedings in which the Federal High Court or a High Court has imposed a sentence of death;
(f) decisions made or given by the Federal High Court or a High Court ?
(i) where the liberty of a person or the custody of an infant is concerned,
(ii) where an injunction or the appointment of a receiver is granted or refused,
(iii) in the case of a decision determining the ease of a creditor or the liability of a contributory of other officer under any enactment relating to companies in respect of misfeasance or otherwise,
(iv) in the case of a decree nisi in a matrimonial cause or a decision in an Admiralty action determining liability, and
(v) in such other cases as may be prescribed by an Act of the National Assembly.
242?(1) Subject to the provisions of Section 241 of

this Constitution, an appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal with the leave of the Federal High Court or that High Court or the Court of Appeal.
Section 241 (1) and 242 (1) create two different rights of appeal, namely:-
(i) Right of appeal as of right and
(ii) Right of appeal with leave of Court.
What this means is that an intending appellant can validly exercise his right of appeal as of right at will within the time fixed by Statute. Whereas leave of the Court below or the appellate Court is a condition precedent to his exercise of the right of appeal with leave. It is settled law that where the condition precedent is necessary but has not been fulfilled, there is no valid appeal. Any notice of appeal of Court of first instance in final decisions and all decisions, that is both final and interlocutory filed upon questions of law alone are as of right- Section 241 (1) (a) and (b). However, in any notice of appeal filed upon only facts or mixed law and facts, leave of Court is a requirement ? Section 242 (1). Hence, in the latter scenario where leave is necessary,

the notice of appeal filed without leave is rendered null and void and of no effect. See the cases of: (1) Nalsa & Team Asso. v. N.N.P.C. (1991) 8 N.W.L.R (Pt.212) p. 652; (2) Irhabor v. Ogaiamien (1999) 8 N.W.L.R (Pt.616) p. 517; (3) Abubakar v. Waziri (2008) All F.W.L.R (Pt. 436) p. 2025 at p. 2037; (4) Abdul v. C.P.C. (2013) LPELR ? 20597 (SC) and (5) F.R.N. v. Dairo (2015) LPELR ? 24303 (SC).

The law distinguishes a final decision from interlocutory decision. A judicial decision is deemed to be final when it leaves nothing to be judicially determined or ascertained thereafter, in order to render it effective and capable of execution and it is absolute, complete, certain and when it is not lawfully subject to subsequent decision, review or modification by the Court or Tribunal which pronounced it. On the other hand, an interlocutory decision is an order that relates to some intermediate matter in the case, any order than a final order. See Black?s Law Dictionary, 7th Edition at page 819. The definition of interlocutory decision was aptly stated in the case of: Omonuwa v. Oshodin (1985) N. W. L. R. (Pt. 10) p.924 per Nnamani,

J.S.C. (of blessed memory), in the following words:
What is an interlocutory decision? In the Dictionary of English Law by Earl Jowitt, it is defined thus: a proceeding in an action is said to be interlocutory when it is incidental to the principal object of the action, namely the judgment. Thus interlocutory applications in an action include all steps taken for the purpose of assisting either party in the prosecution of his case, whether before or after final judgment; or of protecting or otherwise dealing with the subject matter of the action before the rights of the parties are finally determined. (The underlining is mine for emphasis).
Therefore, where the decision does not ultimately determine the issue or issues between the parties or does not at once affect the status of the parties for whichever side the decision is rendered, it is interlocutory. See the cases of: (1) Alor v. Ngene (2007) 17 N.W.L.R. (Pt. 1062) p. 163 and (2) Gomez v. Cherubim and Seraphim Society (2009) 10 N.W.L.R. (Pt. 1149) p. 223.

Applying the foregoing principle of law to the instant matter, the poser is thence, whether the subject matter of the action between and the

rights of the Appellants and the Respondent herein can be said to have been ultimately determined and disposed off by the application of the Respondent that culminated in the decision of the trial Court, the subject matter of this appeal? As hereinbefore set out by me, the Appellants at the trial Court issued a writ under the undefended list against the Respondent for a certain sum of money, that is, forty seven million four hundred and fifty two thousand three hundred and eight naira (N47,452,308.00) being an alleged sum in satisfaction of a judgment debt. It is the said action that the Respondent sought permission of the trial Court to offer its defence to. And the ruling the subject matter of this appeal is the decision granting the Respondent the sought permission. The answer to the above poser is therefore that, the decision is in no way near the resolution and final disposition of the substantive action, hence the rights and status of the Appellants on the one hand and that of the Respondent on another still remain undetermined. Therefore, the decision appealed against herein is an interlocutory and not a final decision.

On the contentiousness of

parties as to whether the appeal touches on the issue of law alone or facts alone or mixed law and facts. The manner an appellant has labeled a ground of appeal does not bring out the class of ground it belongs, that is, law or facts or mixed law and facts. To decipher whether a ground of appeal is of law or facts or mixed law and facts, a Court has the legally bounden duty to critically examine the ground with its accompanying particulars. The Supreme Court followed by this Court has laid down certain principles that would assist the Court in this regard. A question of law has been held to connote one of three meanings, to wit: (a) A question that a Court is bound to answer in accordance with a rule of law. (b) A question which explains what the law is. (c) A question which normally answers questions on law only and invariably falls within the judicial power of a Judge to answer. Contrariwise, a question of facts denotes one of three meanings, viz: (a) A question which is not determined by a rule of law. (b) Any question except one as to what the law is. (c) Any question which is to be answered by the Jury and not Judge. These tripartite meanings of question

of law and facts have been given a stamp of approval by the Apex Court in a long line of cases. To mention a few, see the cases of: (1) C.C.T.C.S. v. Ekpo (2008) 6 N.W.L.R. (Pt.1083) p.362; (2) General Electric Co. v. Akande (2011) 8 N.W.L.R (Pt.1225) p. 596 and (3) Ehinlanwo v. Oke (2008) 16 N.W.L.R (Pt. 1113) p. 357.
One of the principles laid down by the Supreme Court in discovering the nature of a ground of appeal, is that where a ground of appeal challenges an interlocutory decision of a Court predicated on exercise of discretion of the Court, it is a ground of mixed law and facts. See the cases of: (1) F.B.N. PLC V. Abraham (2008) 18 N.W.L.R (Pt.1118) p. 172; (2) Garba V. Omokhodion (2005) 5 N.W.L.R (Pt. 917) p. 160 and (3) Williams v. Mokwe (2005) 15 N.W.L.R. (Pt. 945) p. 249. In the instant case as can be gleaned from the printed record of appeal, the business of the trial Court which culminated in this appeal is that, on 29th September, 2010, the Respondent begged the trial Court to extend time for it to enable it file and serve its notice of intention to defend and affidavit disclosing defence on the merit out of time and for the deeming of

the said processes which had already been filed as properly filed and served. The said supplication was opposed by the Appellants. Consequently, in a considered ruling, the subject matter of this appeal, the trial Court granted the two prayers sought by the Respondent. The ruling is located in pages 74 to 76 of the record of appeal. In the case of: Garba v. Omokhodion (supra), the Supreme Court per Chukwuma-Eneh, JSC. (Rtd.), at page 183 held as follows:
The trial Court opted to hear the preliminary objections first in exercise of its discretionary power. It is beyond argument that the appellants have questioned the trial Court?s discretion in making the interlocutory order, in other words, thus questioning the evaluation of facts. See State v. Bassey (1994) 9 N. W.L.R. (Pt.367) p. 130. I find that by examining the said 3 grounds of appeal will lead to further examining of the facts and circumstances on which the trial Court exercise of its discretion in the matter of the directive it has given is premised.
It follows from the above decision that the interlocutory decision of the trial Court in the instant matter is rooted

in the exercise of discretion and well grounded in mixed law and facts. For the call upon this Court to examine the two grounds of appeal of the Appellants and give a proper directive in the matter will definitely lead to further examination of the facts and circumstances contained in the affidavit in support of the application of the Respondent on which the trial Court?s exercise of its discretion in the orders it made were premised. In my very firm view, the argument of the Appellants that the decision of the trial Court touches on issue of pure law alone is totally misconceived. On the definition and nature of judicial discretion, the Supreme Court succinctly stated in the case of: Ajuwa v. S.P.D.C. Nig. Ltd. (2011) LPELR-8243 as follows:
I have searched for the meaning of the words ?Judicial Discretion? in Black?s Law Dictionary 8th Edition, edited by Bryan Garner at page 409, the words or phrase have been defined as follows:- ?The exercise of judgment by a Judge or Court based on what is fair under the circumstances and guided by the rules and principles of law, a Court?s power to act or not to act when a

litigant is not entitled to demand the act as a matter of right.? Then in the New International Comprehensive Dictionary of the English Language- Encyclopedia Edition at page 365, the word ?discretion? was defined as- ?the act or the liberty of deciding according to justice and propriety, and one?s idea of what is right or proper under the circumstances without willfulness or favour.? Both dictionaries referred to the word- ?Circumstances? which means the facts or peculiar nature of the case which a Judge exercising his discretion would consider. Thus whichever way the appellants may put it, an appeal against the exercise of discretion by the lower Court must involve the consideration of the ?circumstances? in order to determine whether discretion was judiciously exercised. Thus this appeal cannot therefore be said to involve the question of law alone, it must of necessity involve the consideration of the facts placed before the lower Court. It is in this regard that I agree with my lord Karibi-Whyte in Metal Construction (W.A.) Ltd. v. Migliore (1990) 1 N. W. L.R. (Pt. 126) p. 299 at p. 314, when he

held as follows: – ?It is never the less a question of fact with the exercise of discretion?. In Grifths v. J. P. Harrison Watford Ltd. (1963) A.C.1, Lord Denning expressed it succinctly thus ? ?reasonable people on the same facts may reasonably come to different conclusion and often do Juries. So do Judges. And are they not reasonable men?. It has therefore been recognized that these more or less discretion questions of impression or opinion in respect of which reasonable men may arrive at discrepant conclusions on the same evidence are questions of facts. (The underlining is mine for emphasis).

Since the Notice of Appeal, the initiating process of this appeal was filed without the prior leave of either the trial Court or this Court first sought and obtained by the Appellants, it was not initiated in accordance with due process of law. The appeal without doubt is incompetent and this Court is robbed of the requisite jurisdiction, ?ab initio? to entertain it.?
In the final analysis, the preliminary objection taken by the Respondent to the instant appeal is accordingly sustained. This being the case, this

Court has the legally bounden duty at this juncture to terminate the proceedings in the appeal and strike it out. See the cases of: (1) Adah v. N.Y.S.C (2004) 13 N.W.L.R. (Pt. 891) p. 639; (2) Braithwaite v. Skye Bank PLC (supra); (3) Nwanwata v. Esumei (1998) 8 N. W. L.R. (Pt. 563) p. 650 and (4) Anadi v. Okoli (1977) 7 S.C. p.57.

With the devastation of the Notice of Appeal, it follows that the entire appeal in the main has become spent as this Court equally lacks the platform by way of jurisdiction to mount on and determine same. See the cases of: (1) Dr. Okey Ikechukwu v. F.R.N. (2015) 7 N.W.L.R. (Pt. 1457) p.1; (2) Uwazurike v. A. G., Federation (2007) 2 SCNJ p.369; (3) N.E.P.A. v. Ango (2001) 15 N.W.L.R. (Pt. 737) p. 627 and (4) Onyemeh v. Egbuchulam (1996) N.W.L.R. (Pt. 448) p. 255. In the case of: Dr. Okey Ikechukwu v. F.R. N. Nweze, J.S.C., at page 21, paragraphs B- G and page 22, paragraph C, stated as follows:
As a general rule, an intermediate Court, like the Court of Appeal has a duty to pronounce on all the issues before it. However, there are exceptions to the foregoing rule. Thus for example, where the Court of Appeal decides that

it lacks jurisdiction in an appeal before it, it becomes unnecessary for the Court of Appeal to consider other issues. In this case, the Court of Appeal upheld the 1st Respondent?s Preliminary Objection to the competence of the Appellant?s appeal. In the circumstance, it was unnecessary for the Court of Appeal to consider the arguments in support of the issues for determination distilled by the parties in the appeal. (The underlining is mine for emphasis).

Consequent upon the foregoing elucidations, this Appeal No: CA/PH/238/2011 is accordingly struck out for being incompetent.

I make no order for costs.

JAMES SHEHU ABIRIYI, J.C.A.: I read before now in draft the lead Judgment just delivered by my learned brother, Oyebisi Folayemi Omoleye JCA.

For the reasons contained in the lead Judgment I too strike out the appeal for being incompetent. I abide by the order as to costs.

SAIDU TANKO HUSAINI, J.C.A.: Where a process intended to Commence an action, suit or an Appeal is fundamentally bad, it is bad for all purposes as nothing useful can come out of it as held

in Macfoy vs. U.A.C (1961) 3 ALL ER 1169, 1172. It is trite that a competent Notice of Appeal is the bedrock or foundation of any appeal before the Court. Where a Notice of Appeal is incompetent, as in the instant matter, it is liable to be struck out. See: Uwazurike v. A.G. Federation (2007) 8 NWLR (pt.1035) 1; NIWA vs. SPDC (2007) 1 NWLR (pt.1015) 305.

It is for this reason I am one with my Lord, Oyebisi Folayemi Omoleye, JCA, in the lead Judgment, that the appeal by reason of the defects in the Notice, the appeal has become spent and same must be struck out. I abide by other orders in the lead judgment as to costs.

Appearances:

E. B. Ukiri, Esq. With him, F. O. Okeri, Esq.For Appellant(s)

A. Enyindah, Esq.For Respondent(s)

Appearances

E. B. Ukiri, Esq. With him, F. O. Okeri, Esq.For Appellant

AND

A. Enyindah, Esq.For Respondent