CHIEF BARNABAS GEMADE & ANOR V. JOHN T. TINE
(2011)LCN/4589(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 31st day of May, 2011
CA/J/99/2004
RATIO
JURISDICTION OF COURT: EFFECT OF A PROCEEDING CONDUCTED WITHOUT JURISDICTION OF THE COURT
Jurisdiction has been described as the lifeblood of any adjudication. Any step taken in any proceeding without jurisdiction is a nullity, no matter how well conducted. See: First Bank of Nigeria Plc. V. E.D. Tsokwa (2003) FWLR (153) 205 @ 227 A-C. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.
COMPETENCE OF COURT: WHEN IS A COURT SAID TO BE COMPETENT
In the case of Madukolu V. Nkemdilim (1962) 2 SCNLR 341 it was held that a court is competent when: a. it is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or the other; b. the subject matter of the case is within jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction; and c. the case comes before the court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.
STATUTORY PROVISION : THE PROVISION OF SECTION 24 (2) OF THE COURT OF APPEAL ACT CAP. C36 LAWS OF THE FEDERATION OF NIGERIA 2004 AS TO THE PERIODS WITHIN WHICH NOTICE OF APPEAL OR NOTICE OF APPLICATION FOR LEAVE MUST BE GIVEN
Section 24 (2) of the Court of Appeal Act provides: 24. (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, fourteen days where the appeal is against an interlocutory decision and three months where the appeal is against a final decision. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.
FINAL AND INTERLOCUTORY DECISION OF COURT: DISTINCTION BETWEEN A FINAL AND INTERLOCUTORY DECISION OF COURT
On the distinction between a final and interlocutory decision, the Supreme Court in: Alor V. Ngene (2007) 17 NWLR (1062) 163 @ 175 F-176 A held: “In plethora of decided cases, this court decided that in this country, if the order, decision or judgment of a court finally and completely 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: Akinsanya V. UBA Ltd. (1986) 4 NWLR (35) 273: Iqunbor V. Afolabi (2001) FWLR (59) 1284: (2001) 11 NWLR (923) 148. The authority of Omonuwa V. Oshodin (1986) 2 NWLR (10) 924, relied upon by learned counsel for the appellants has been superseded by the decision in Akinsanya V. UBA Ltd. (supra). In the case of Igunbor V. Afolabi (Supra) at 165 D-E the Supreme Court per Karibi -Whyte, JSC held thus: “A final order or judgment at law is one which brings to an end the rights of the parties in the action. It disposes of the subject matter of the controversy or determines the litigation as to all parties on the merits. On the other hand, an interlocutory order or judgment is one given in the process of the action or cause, which is only intermediate and does not finally determine the rights of the parties in the action. It is an order which determines some preliminary or subordinate issue or settles some step or question but does not adjudicate the ultimate rights of the parties, in the action. However, where the order made finally determines the rights of the parties, as to the particular issue disputed, it is a final order even if arising from an interlocutory application”. I shall now apply the authorities to the facts of the case that gave rise to this appeal. It is correct, as submitted by learned counsel for the appellants that the earlier decision of the learned Chief Judge entering judgment in their favour on the undefended list was a final decision because it finally determined the rights of the parties. The subsequent decision of 5/4/04 setting aside that judgment meant that the rights of the parties were again before the court for determination. In Alor V. Ngene (2007) 17 NWLR (1062) 163 @ 177 E-F, His Lordship, Kalgo, JSC held thus: But where the rights or claims of the parties in any 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 had been set aside, the resultant effect was that the appellants’ claims were pending and awaiting a determination one way or the other by the court. The decision was therefore an interlocutory decision. Pursuant to Section 24 (2) (a) of the Court of Appeal Act, the appellants ought to have filed their notice of appeal within fourteen days of the decision. The notice of appeal filed on 21/4/04, sixteen days after the ruling of 5/4/04 was therefore filed out of time. The appellants did not seek or obtain an order for extension of time within which to appeal against the decision. The notice of appeal filed on 21/4/04 is therefore incompetent. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.
JUSTICES
KUDIRAT M.O. KEKERE-EKUN Justice of The Court of Appeal of Nigeria
ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria
UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria
Between
1. CHIEF BARNABAS GEMADE
2. CONSUS (NIG) LTD Appellant(s)
AND
JOHN T. TINE Respondent(s)
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the Benue State High Court sitting at Makurdi delivered on 5/4/04 setting aside its judgment delivered on 6/11/03 on the Undefended List.
The appellants herein, as plaintiffs before the lower court fifed a motion ex-parte dated 8/4/03 with supporting affidavit and exhibits attached thereto seeking the following orders:
1. “An order issuing a writ of summons in the undefended list for a liquidated money demand in the sum of N500, 000.00 against the defendant herein.
2. An order that the said writ of summons as applied for here be marked “undefended list”.
3. An order entering a date for hearing on the said writ of summons.
And such further order(s) as this Hon. Court may deem fit to make in the circumstances of this case.”
The Hon. Chief Judge, T.U.F. PUUSU, CJ granted the application on 14/5/03 and adjourned the matter to 26/6/03 for hearing. The writ of summons marked “Undefended List” is dated 14/5/03 and signed and stamped by His Lordship. (See pages 1-7 of the record). Subsequently the appellants obtained an order for substituted service of the writ and other processes on the respondent by pasting them at the door to his office at his last known address at NUJ House, Makurdi. The respondent thereupon entered a conditional appearance to the suit. The matter came up for hearing on 6/11/03. The parties were absent. Learned counsel for the respondent was also absent. Learned counsel for the appellants drew the court’s attention to the fact that the respondent had been served with the writ of summons and other processes on 6/8/03 with a return date and had failed or neglected to file a notice of intention to defend the suit in compliance with Order 23 Rule 3 (1) of the High Court of Benue State (Civil Procedure) Rules. He urged the court to enter judgment in his clients’ favour. The learned Chief Judge, upon being satisfied from the processes before the court that the respondent had been duly served, that he was indebted to the appellants and had failed to file a notice of intention to defend proceeded to enter judgment in the appellants’ favour as claimed.
On 27/11/03 the respondent filed a motion on notice seeking an order setting aside the judgment delivered on 6/11/03 on the following grounds:
(a) ” Only the ex-parte application for the issue of the writ of summons on the undefended list was by substituted service served on the defendant/applicant by pasting.
(b) No hearing notice for the hearing of the suit was served on the defendant/applicant or his counsel.
(c) No writ and/or other ancillary processes were served on the defendant/applicant or his counsel.”
(See pages 12 – 13 of the record).
After listening to the arguments of counsel on either side, the Hon. Chief Judge in a ruling delivered on 5/4/04, held at page 38 of the record:
“I have perused my records but cannot find anywhere where the respondent filed the case on the undefended list. Even though he was granted leave to come under the undefended list he has not done so. This might have prompted the defendant to file a conditional memorandum of appearance. For these reasons, I am of the view that there was a fundamental defect as due process was not followed…I therefore set aside the Judgment earlier delivered by me on November 6, 2003.”
The appellants have challenged this decision by a notice of appeal dated 20/4/04 and filed on 21/4/04 containing two grounds of appeal. The parties duly filed and exchanged their respective briefs of argument. The appellants’ brief settled by J.S. OKUTEPA ESQ, is dated 24/4/2004 and filed on 27/5/2004. He also filed a Reply brief dated 7/3/07 and filed on 12/3/07. It was deemed properly filed on 25/9/2007. The respondent’s brief settled by A.A. IJOHOR ESQ. is dated and filed on 11/11/2005. The respondent filed a notice of preliminary objection dated 8/11/05 and filed the same day. Arguments in respect of the preliminary objection were incorporated in the said brief.
At the hearing of the appeal on 14/4/2011, Mr. Okutepa adopted and relied on the appellants’ brief and urged the court to allow the appeal. Mr. T.D. Pepe drew the attention of the court to the preliminary objection raised and argued in the respondent’s brief. He adopted and relied on the arguments in support of the preliminary objection and urged the court to strike out the appeal. Alternatively he urged the court to dismiss the appeal as lacking in merit.
As the respondent has raised a preliminary objection to the hearing of the appeal, which goes to the jurisdiction of the court it is prudent to consider and resolve it first before delving into the merits of the appeal, if necessary. The grounds for the objection are (i) that the notice and grounds of appeal was filed out of time contrary to Section 25 (2) (a) of the Court of Appeal Act, which requires appeals against interlocutory decisions to be filed within fourteen days and (ii) the appellants’ failure to seek and obtain leave of this court to file their appeal out of time. Arguing the objection, learned counsel for the respondent observed that the notice of appeal was filed sixteen days after the decision appealed against and that the appellants failed to seek leave to file it out of time. He submitted that this court lacks jurisdiction to entertain the appeal. He submitted that the issue of jurisdiction is fundamental and a sine qua non to an action. He referred to: First Bank of Nigeria Plc V. E.D. Tsokwa (2003) FWLR (153) 205 @ 227 A – C. He submitted further that a court could only assume jurisdiction when a suit is properly initiated before it. He relied on: Frank V. Abdu (2003) FWLR (158) 1330 @ 1346. He submitted that the appeal in this case is incompetent and the court lacks jurisdiction to entertain it.
Learned counsel for the appellants submitted, in response, that the preliminary objection is misconceived. He submitted that the critical consideration is whether the decision appealed against is final or interlocutory. He referred to the case of Igunbor V. Afolabi (2001) FWLR (59) 1284; Omonuwa V. Oshodin (1985) 2 NWLR (10) 924; Ezeobi V. Abang (2001) FWLR (56) 652 @ 661. He contended that the decision appealed against is a final decision. He submitted that when judgment was entered in favour of the appellants on 6/11/03 under the undefended list procedure, they acquired a right under that judgment. He submitted that the setting aside of the judgment finally determined the rights of the parties to that judgment. He therefore submitted that the decision appealed against was a final and not interlocutory decision. He argued that under Section 25 (2) (a) of the Court of Appeal Act the time to give notice of appeal against a final decision is ninety days. He submitted that the notice of appeal filed on 21/4/04 against the decision of 5/4/04 was filed within time. He urged the court to dismiss the preliminary objection and determine the appeal on its merit.
By his preliminary objection the respondent has challenged the jurisdiction of this court to entertain this appeal.
Jurisdiction has been described as the lifeblood of any adjudication. Any step taken in any proceeding without jurisdiction is a nullity, no matter how well conducted. See: First Bank of Nigeria Plc. V. E.D. Tsokwa (2003) FWLR (153) 205 @ 227 A-C. In the case of Madukolu V. Nkemdilim (1962) 2 SCNLR 341 it was held that a court is competent when:
a. it is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or the other;
b. the subject matter of the case is within jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction; and
c. the case comes before the court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction. (Emphasis mine)
The respondent’s contention is that this appeal has not been initiated by due process of law having regard to Section 24 (2) of the Court of Appeal Act Cap. C36 Laws of the Federation of Nigeria 2004.
Section 24 (2) of the Court of Appeal Act provides:
24. (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, fourteen days where the appeal is against an interlocutory decision and three months where the appeal is against a final decision.”
The resolution of the preliminary objection rests squarely on whether the decision appealed against is a final or interlocutory decision. On the distinction between a final and interlocutory decision, the Supreme Court in: Alor V. Ngene (2007) 17 NWLR (1062) 163 @ 175 F-176 A held:
“In plethora of decided cases, this court decided that in this country, if the order, decision or judgment of a court finally and completely 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: Akinsanya V. UBA Ltd. (1986) 4 NWLR (35) 273: Iqunbor V. Afolabi (2001) FWLR (59) 1284: (2001) 11 NWLR (923) 148. The authority of Omonuwa V. Oshodin (1986) 2 NWLR (10) 924, relied upon by learned counsel for the appellants has been superseded by the decision in Akinsanya V. UBA Ltd. (supra). In the case of Igunbor V. Afolabi (Supra) at 165 D-E the Supreme Court per Karibi -Whyte, JSC held thus:
“A final order or judgment at law is one which brings to an end the rights of the parties in the action. It disposes of the subject matter of the controversy or determines the litigation as to all parties on the merits. On the other hand, an interlocutory order or judgment is one given in the process of the action or cause, which is only intermediate and does not finally determine the rights of the parties in the action. It is an order which determines some preliminary or subordinate issue or settles some step or question but does not adjudicate the ultimate rights of the parties, in the action. However, where the order made finally determines the rights of the parties, as to the particular issue disputed, it is a final order even if arising from an interlocutory application”.
I shall now apply the authorities to the facts of the case that gave rise to this appeal. It is correct, as submitted by learned counsel for the appellants that the earlier decision of the learned Chief Judge entering judgment in their favour on the undefended list was a final decision because it finally determined the rights of the parties. The subsequent decision of 5/4/04 setting aside that judgment meant that the rights of the parties were again before the court for determination. In Alor V. Ngene (2007) 17 NWLR (1062) 163 @ 177 E-F, His Lordship, Kalgo, JSC held thus:
But where the rights or claims of the parties in any 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 had been set aside, the resultant effect was that the appellants’ claims were pending and awaiting a determination one way or the other by the court. The decision was therefore an interlocutory decision. Pursuant to Section 24 (2) (a) of the Court of Appeal Act, the appellants ought to have filed their notice of appeal within fourteen days of the decision. The notice of appeal filed on 21/4/04, sixteen days after the ruling of 5/4/04 was therefore filed out of time. The appellants did not seek or obtain an order for extension of time within which to appeal against the decision. The notice of appeal filed on 21/4/04 is therefore incompetent. The preliminary objection succeeds and is accordingly upheld. The notice of appeal filed on 21/4/04 is hereby struck out. I make no order for costs.
ALI ABUBAKAR BABANDI GUMEL, J.C.A.: I have had the opportunity of reading before now the lead judgment of my learned brother, Kekere-Ekun, JCA. I entirely agree with him that this appeal had no foundation. The preliminary objection to the competence of this appeal is hereby upheld by me too. I would also not make any order for costs.
UCHECHUKWU ONYEMENAM, J.C.A.: I had read in draft the lead judgment just delivered by my learned brother KEKERE-EKUN, JCA. The issues raised in the appeal have been concisely dealt with in the said judgment.
By a notice of appeal dated 20:4:04 and filed on 21:4:04, the appellants challenged the ruling of the High Court of Benue State, Makurdi delivered on 5:4:04. By the ruling, the learned trial Judge set aside his judgment delivered on 6:11:03 on the undefended list. The respondent by notice of preliminary objection dated 8:11:05 and argued in his brief seeks an order of this court striking out the appeal on grounds that:
(1) The Notice and Grounds of appeal was filed out of time contrary to the 14 days provided by the Court of Appeal Act for appeals against interlocutory decisions.
(2) The appellants did not seek and obtain leave of this court to file the appeal out of time.
The issue is whether the ruling of the trial Judge on 5:4:04 was interlocutory or final decision.
A “final judgment” and “interlocutory judgment” can only be seen through the case law as they are not defined in the statutes or rules of court. The test is whether a judgment or order has finally settled or disposed of the rights of the parties in the case, to the extent that if it is in favour of the plaintiff, it is conclusive against the defendant and if it is in favour of the defendant, it is conclusive against the plaintiff, without further reference to the court in respect of the order or judgment. See Falola V. U.B.N. Plc. (2005) NWLR (Pt. 924) 405.
To resolve whether the ruling of the learned trial Judge on 5:4:04 is interlocutory or final in nature, I need to determine the effect of the ruling on the parties. The apparent effect is that the parties were returned to status quo. The judgment of Suit no. MHC/145/2003 which was set aside resurrected, the rights of the parties were brought back to life as issues remained unresolved and the parties would have to refer back to the court to dispose of their rights. This fixes the ruling appealed against as an interlocutory decision. Accordingly, pursuant to Section 24 (2) (a) of the Court of Appeal Act, the appellants had 14 days within which to appeal against the ruling failure which they required leave of court to appeal out of time. Since no leave was sought and obtained before the filing of the notice of appeal, this appeal is incompetent and as such this court is devoid of the jurisdiction to hear and determine same. See Nalsa & Team Associates V. N.N.P.C. (1991) 8 NWLR (Pt. 212) 652
With the foregoing, I wholly agree with my brother who delivered the lead judgment that the notice of appeal filed on 21:4:04 is incompetent. I also uphold the preliminary objection. I strike out the notice of appeal filed on 21:4:04 and abide by the order as to costs.
Appearances
J.S. OKUTEPA ESQ.
G.O. OKANYI
M.O. OZUEH
EDE UKOFor Appellant
AND
T.D. PEPEFor Respondent
