CHIEF SERGEANT C. AWUSE v. DR. PETER ODILI(2005)

CHIEF SERGEANT C. AWUSE v. DR. PETER ODILI

(2005)LCN/1682(CA)

In The Court of Appeal of Nigeria

On Thursday, the 27th day of January, 2005

CA/PH/EPT/54/2004

RATIO

CONSTITUTIONAL LAW: PRINCIPLE OF NATURAL JUSTICE

The purpose of section 241(2)(a) is to ensure that the principle of natural justice which demands that when a person’s civil rights and obligations are being impugned or call for determination, he should be given opportunity to defend himself and thus given fair hearing – audi alteram partem. See Onwumechili v. Akintemi (1985) 3 NWLR (Pt. 13) 504. The rule of natural justice has been with us from creation. Even God himself did not pass sentence upon Adam before he was called upon to enter on his defence. See R v. Chancellor of Cambridge University (1716) 1 Str. 557. “The Almighty God called upon Adam, have you eaten from the tree I warned you about. Genesis 3: 11. The Lord gave him opportunity to defend himself before passing sentence upon him.” Even the Romans, as it is borne out in the New Testament, Acts Chapter 25:16 during the trial of St. Paul upheld the maxim of audi alteram partem as follows: “It is not the manner of the Romans to deliver any man to die, before that he which is accused have the accusers face to face, and have licence to answer for himself concerning the crime laid against him PER SALAMI, J.C.A.

CONSTITUTIONAL LAW: THE PRINCIPLE OF FAIR HEARING AND ITS CRITERIA AND ATTRIBUTES

JUSTICES

ISA AYO SALAMI Justice of The Court of Appeal of Nigeria

SAKA ADEYEMI IBIYEYE Justice of The Court of Appeal of Nigeria

PATRICK IBE AMAIZU Justice of The Court of Appeal of Nigeria

CLARA BATA OGUNBIYI Justice of The Court of Appeal of Nigeria

JAFARU MIKA’ILU Justice of The Court of Appeal of Nigeria

Between

CHIEF SERGEANT C. AWUSE Appellant(s)

AND

PETER ODILI Respondent(s)

SALAMI, J.C.A. (Delivering the Leading Judgment): In this interlocutory appeal, the ruling of the National Assembly/Governorship and Legislative Houses Election Petition Tribunal, sitting in Port Harcourt, Rivers State, delivered on 16th February, 2004, wherein the tribunal granted first respondent enlargement of time within which to file reply to the petition is being contested. Upon service of the petition on the first respondent, he duly entered appearance. Thereafter, he challenged the competence of the petition and therefore, failed or neglected to reply to the petition pending the determination of notice of his intention to rely on a preliminary objection by the Supreme Court, even though there is no right of appeal to that court.
On determination of the appeal to the Supreme Court, the first respondent filed his reply to the petition on 4th December, 2003, as well as an application for extension of time to file the said reply.
The petitioner opposed the application for enlargement of time by filing a motion for striking out of the first respondent’s reply already filed. The two applications were taken together.
On 16th February, 2004, the tribunal in its reserved and considered ruling dismissed the petitioner’s application and granted first respondent’s application for extension of time and deemed the reply already filed as properly filed and served on all the parties to the proceedings.
Being unhappy and dissatisfied with the ruling, the petitioner filed the instant appeal resting on three grounds of appeal.
The petitioner (hereinafter referred to as the appellant) formulated the following two issues as calling for determination in the instant appeal.
“(a) whether the tribunal had the competence to extend the time for filing a reply to a petition.
(b) assuming without conceding that the tribunal had competence to extend time, whether their Lordships had exercised the discretion properly.
Issue (a) was related to grounds one and three of the grounds of appeal while issue (b) derived from the remaining ground two.
In my respectful opinion, the only issue calling for determination in this interlocutory appeal is the competence of the appeal itself. In this connection, at the hearing of the appeal, we directed the attention of the learned Senior Counsel appearing for both parties to the provisions of section 241(2)(a) of the Constitution of Federal Republic of Nigeria, 1999, and invited counsel to address the court thereon.
Chief Ahamba, SAN, in his clear and unequivocal submission contended that this matter does not come within the ambit of section 241 (2)(a) of the Constitution and rather it falls within the scope of section 246 of the same Constitution. Learned Senior Counsel referred to the word “decision” which has been defined to include interlocutory decision in Buhari v. Yusuf (2003) 14 NWLR (Pt.841) 446, 499 and contended that the makers of the Constitution might as well have included section 241(2)(a) under section 246 if they had so intended. Learned Senior Counsel referred to Buhari v. Obasanjo (2003) 15 NWLR (Pt. 843) 236, and explained that it deals with calculation of period for filing a reply to ascertain whether a reply already put in was filed within the time prescribed or not; and not an authority for extension of time to file a reply.
On the other hand, learned Senior Counsel for respondent, Mr. Wifa contended that sections 246 and 285 deal with election matters. Learned Senior Counsel further contended that while section 285 of the Constitution deal with establishment of tribunals, section 246 of the same Constitution grants the right of appeal and was tempted to say that the issue of election is compartmentalized. After the vacillation, learned Senior Counsel for respondent said that the provisions of section 241 of the Constitution are clear and unambiguous, it seemed to him that it could be read into the provisions of sections 246 and 285 of the Constitution and so the appeal is incompetent.
There is substance in the submission of the learned Senior Counsel that section 241(2)(a) of the Constitution directly deals with right of appeal or otherwise from a decision of a High Court to the Court of Appeal and not necessarily with appeal from election tribunal to the Court of Appeal which right of appeal is conferred under section 246 of the same Constitution. The purpose of section 241(2)(a) is to ensure that the principle of natural justice which demands that when a person’s civil rights and obligations are being impugned or call for determination, he should be given opportunity to defend himself and thus given fair hearing – audi alteram partem.
See Onwumechili v. Akintemi (1985) 3 NWLR (Pt. 13) 504. The rule of natural justice has been with us from creation. Even God himself did not pass sentence upon Adam before he was called upon to enter on his defence. See R v. Chancellor of Cambridge University (1716) 1 Str. 557.
“The Almighty God called upon Adam, have you eaten from the tree I warned you about. Genesis 3: 11. The Lord gave him opportunity to defend himself before passing sentence upon him.”
Even the Romans, as it is borne out in the New Testament, Acts Chapter 25:16 during the trial of St. Paul upheld the maxim of audi alteram partem as follows:
“It is not the manner of the Romans to deliver any man to die, before that he which is accused have the accusers face to face, and have licence to answer for himself concerning the crime laid against him”

The principle of fair hearing presently enshrined in our Constitution provides as follows in section 36(1) thereof-
“36(1) In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.”
The criteria and attributes of fair hearing were enunciated in N.A.B. Kotoye v. Central Bank of Nigeria & Ors. (1989) 1 NWLR (Pt. 98) 419, by Supreme Court per Nnaemeka-Agu, JSC, at page 444 of the report thus –
“There are certain basic criteria and attributes of fair hearing, some of which are relevant in this case. These include:
(i) that the court shall hear both sides not only in the case but also in all material issues in the case
before reaching a decision which may be prejudicial to any party in the case. See Sheldon v. Bromfield Justices (1964) 2 QB 573 at page 578;
(ii) that the court or tribunal shall give equal treatment, opportunity, and consideration to all concerned. See on this Adigun v. Attorney-General. Oyo State & Ors. (1987) 1 NWLR (Pt.53) 678;
(iii) that the proceedings shall be held in public and all concerned shall have access to and be informed of such a place of public hearing; and
(iv) that having regard to all the circumstances in every material decision in the case, justice must not only be done but must manifestly and undoubtedly be seen to have been done R v. Sussex Justices Ex parte MacCarthy (supra); Deduwa & Ors. v. Okorodudu (1976) 9-10 SC 329.”
Thus, fair hearing in the con of section 36(1) of 1999 Constitution embraces the plenitude of the doctrine of natural justice in the sense of the twin pillars of justice;
(a) audi alteram partem
(b) nemo judex in causa sua
and what is not only right and fair to all concerned.It is on the questions of “justice must not only be done but must manifestly and undoubtedly be seen to have been done” and equal treatment of all concerned that the provisions of section 241(2)(a) of the Constitution must be called into our aid. Can “justice be manifestly and undoubtedly be seen to have been done” if the other side is prevented from stating the facts he considers material to his case? I do not think so. Similarly, neither do I think that the court will be extending equal treatment, opportunity or consideration to all concerned in the event of the interlocutory appeal succeeding and the respondent denied the right to fair hearing.
The litigants before the court either through the provisions of sections 241(1) or 246 of the Constitution are there for the determination of their respective civil rights and obligations. There should therefore, be no discrimination on account that their grouse or grouses emanated from a High Court or an election tribunal or a code of conduct tribunal. The source of the appeal should be immaterial or irrelevant. The significance of the duty of the court to interprete laws particularly the Constitution cannot be over emphasized. It is the duty of the court to uphold the Constitution by such interpretation of its provisions as a single document and not in isolation and thereby encourage a healthy growth of the Constitution. The Constitution should not be construed in a manner to frustrate or defeat the obvious intention of its makers. The duty of the court in this regard was enunciated by Sir Udo Udoma, JSC in Nafiu Rabiu v. The State (1981) 2 NCLR 293, 326:
“the function of the Constitution is to establish a framework and principles of government, broad and general in terms, intended to apply to the varying conditions which the development of our several communities must involve, ours being a plural, dynamic society, and therefore, more technical rules of interpretation of statutes are to some extent inadmissible in a way so as to defeat the principles of government enshrined in the Constitution… this court should whenever possible, and in response to the demands of justice, lean to the broader interpretation… It is my view that the approach of this court to the construction of the Constitution should be, and so it has been, one of liberalism, probably a variation on the theme of the general maxim ut res magis valeat quam pereat.
I do not conceive it to be the duty of this court so to construe any of the provisions of the Constitution as to defeat the obvious ends the Constitution was designed to serve where another construction equally in accord and consistent with the words and sense of such provisions will serve to enforce and protect such ends.”
(Italics mine).
And in Bronik Motors Ltd. v. Wema Bank Ltd. (1983) 1 SCNLR 296 at 321, (1983) 6 SC 158, Nnamani, JSC, at page 311 of the report added his own words of caution thus –
“As was stated in Minister of Home Affairs v. Fisher (1979) 2 WLR 889; (1980) AC 319, 328, a constitutional instrument should not necessarily be construed in a manner and according to rules which apply to Acts of Parliament.
Although, the manner of interpretation of a constitutional instrument should give effect to the language used, recognition should also be given to the character and origins of the instrument. Such an instrument should be treated as sui generis calling for principles of interpretation of its own suitable to its character without necessary acceptance of all the presumptions that are relevant to legislation of private law.”Armed with these words of infallibility from the highest court of the realm, I am respectfully of the firm view that the intention of the Constitution would be defeated, if the provisions of section 241(2)(a) of the Constitution is restricted solely to appeal emanating from a High Court only. It follows that a decision granting leave to defend a suit emanating from an election tribunal, code of conduct tribunal, Sharia Court of Appeal or Customary Court of Appeal would be appealable whereas similar appeal from a High Court, Federal or State, would be effectively barred.
Section 241 (2)(a) of the Constitution provides as follows:
“(2) Nothing in this section shall confer any right of appeal
(a) From a decision of the Federal High Court or any High Court granting unconditional leave to defend an action.”
It is very clear from the provisions of paragraph (a) of subsection (2) of section 241 of the Constitution that there is no right of appeal from a High Court to the Court of Appeal in respect of an order granting an unconditional leave to defend an action. There is only a right of appeal. where a conditional leave to defend is granted, exercisable presumably by the defendant to jettison the condition. See National Bank of Nigeria Ltd. v. Weide & Co. (1996) 8 NWLR (Pt. 465) 150,155; (1996) 9-10 MAC. 209, 217, where Supreme Court per Ogwuegbu said –
“It seems to me that the legislature having set out the situations where an intending appellant can appeal to the Court of Appeal as of light in section 220(1) of the Constitution and made other provisions in section 221(1) where appeals lie with leave, it intentionally excluded any right of appeal in the three cases set out in subsections 220(2)(a),(b) and (c) of the 1979 Constitution. In fact, the exclusion in my view is absolute in subsections 220(2)(a) and (b) whereas sub-section (2)(c) is qualified in the sense that with leave of the High Court or the Court of Appeal, the light of appeal against a decision made with the consent of the parties or as to costs only is preserved.”
Section 220 of 1979 Constitution is in pari materia with section 241 of the 1999 Constitution. In my respectful view, section 241(1) of the Constitution bars a right of appeal either as of right or with leave, in the two instances mentioned in paragraphs (a) and (b). I hold that there is no right of appeal to the Court of Appeal from a decision of an election tribunal granting an unconditional leave to defend a petition. To act otherwise will lead to absurdity. This approach is consistent with the intention of the Constitution. It will be inconsistent with intention of the makers of the Constitution not to permit constitutionally entrenched provisions particularly those safeguarding human rights to be lightly trampled upon or violated. In the circumstance, I find this interlocutory appeal incompetent and strike it out for incompetence. I make no order as to costs; each party to bear his or its own costs.

IBIYEYE, J.C.A.: I have had the advantage of reading in advance, the judgment of my learned brother, Salami, JCA. It is apparent from the separate briefs of argument of the appellant and the respondent that there is consensus ad idem that only two issues are deducible from the three grounds of appeal raised by the appellant for the consideration of the instant appeal. I shall avoid reproducing the two issues adumbrated by the parties from the three grounds of appeal because they have been clearly set out in the leading judgment. I entirely agree that the only issue of particular moment for the determination of this appeal is issue A which I shall, inspite of what I have said above, reproduce for ease of reference. It reads:
“(a) Whether the tribunal had the competence to extend the time for filing a reply to a petition.”
The learned Senior Counsel for the parties strenuously canvassed their differing stand points for or against the issue (supra). It appears the embedded purpose of the instant appeal is “to shut out” the respondent from defending the serious allegations made against him in the petition filed by the petitioner (now appellant). I have no doubt in my mind that, if the request of the appellant is acceded to by this court or any other court, it will certainly amount to grave affront on the hackneyed, but well tested principles of natural justice otherwise described as the twin pillars of justice. These principles are set out in a language other than English although the translation into English now appears to be common knowledge. The principles are:
“(a) audi alteram partem
(b) nemo judex in causa
The meaning of each of them in sequential order is that the other party must be heard and no man shall be a Judge in his own cause.
There is no doubt that the first of the twin pillars of justice (above) is relevant to the issue in point. It is trite that one of the several functions of the court, if not the foremost, is for any court set up by the Constitution or a Legislation to do manifest justice which will not attract any adverse comments from any reasonable or knowledgeable members of the public. The resume of the foregoing is that there is need for fair hearing in any litigation whether criminal or civil. Election petition is subsumed in both of them.
The learned Senior Counsel for both parties made elaborate submissions on the applicability of particularly sections 246 and 241 of the Constitution of the Federal Republic of Nigeria, 1999 (hereinafter referred to as the 1999 Constitution). The basis for divergent views by the learned Senior Counsel for the appellant is that only section 246 of the 1999 Constitution should be invoked in the consideration of the instant issue. It is settled that in the interpretation of the Constitution or any statute, the court has a bounden duty to uphold the provisions of each of the two types of legislation as a single document and consider all its provisions where necessary in order to carry out the true intention of the law makers. The court shall, under no circumstances, construe the provisions of the Constitution in order to defeat its intendments. It is equally trite, by way of emphasis, that in the construction of a Constitution or a statute, the con of the words which are to be construed includes not only the particular phrase or section in which they occur but also the other parts of such constitutional instrument or statute. In effect, a constitutional instrument or statute should be considered as a whole so far as to avoid any inconsistency or repugnancy either within the section to be construed or as between that section and other parts of the legislation the true meaning of a particular section may in this way be extended or restricted by reference to other sections or to the general purview of the Constitution or statute. See Nafiu Rabiu v. The State (1981) 2 NCLR 293 at 326; Bronik Motors Ltd. v. Wema Bank Ltd. 1 SCNLR 296; (1983) 6 SC 158 at 311; Minister of Home Affairs v. Fisher (1979) 2 WLR 889; (1980) AC 319 at 328, and Halsbury’s Laws of England, Vol. 36, page 395 at paragraph 594.
The foregoing principles deal with the approach or approaches as regards the interpretation of a Constitutional instrument or statute.
They state, in essence, that no provision of the Constitution in particular should be considered in isolation. The entire provisions should be considered in order to avoid any inconsistency in their purports. The instant matter deals principally with an appeal to this court from the decision of the election tribunal which sat in Port Harcourt. That tribunal granted an unconditional leave to the respondent to defend the petition against him. I have carefully considered sections 241(1) and 246 of the 1999 Constitution. It seems to me that both sections have a singular objective which is for the determination of the grievances of parties, which arose in the lower court or courts in the Court of Appeal. In the instant case, the respondent has been granted an unconditional leave to defend the petition of the appellant. The question is: How does the respondent actualise the order of the tribunal? I have had a hard look at the provisions of the said two sections of the 1999 Constitution (supra) and I am of the strong view that if the order given to the respondent will have any efficacy, it is section 241(2) of 1999 Constitution that will be more appropriate to deal with that order of the tribunal in the absence of any other corresponding provisions in the 1999 Constitution. I am not unmindful that section 241(2) of the 1999 Constitution specifically excludes the election tribunal from the courts to which that subsection applies. It is, however, trite that the court should, whenever possible and in response to the demand of justice, lean to the broad interpretation or adopt the principle of liberalism. See Nafiu Rahiu v. The State (supra) at page 326. I am of the respectful view that in the spirit of broad interpretation which the 1999 Constitution accommodates and in an attempt to foster justice in the instant case, the applicability of the provisions of section 241(2)(a) of the 1999 Constitution should be extended to instant order of the election tribunal in point. In further view of the fact that the election tribunal in Port Harcourt in Rivers State, had granted the respondent unconditional leave to defend the petition, I entirely agree with the opinion in the leading judgment which says, inter alia:
“I am of the firm view that the intention of the Constitution (1999) would be defeated, if the provisions of section 241(2)(a) is restricted solely to appeals emanating from the Federal High Court or any High Court only.”
Section 241(2)(a) of the 1999 Constitution reads:
“(2) Nothing in this section shall confer any right of appeal-
(a) From a decision of the Federal High Court or any High Court granting unconditional leave to defend an action.”
It is apparent that the election tribunal sitting in Port Harcourt over the governorship election petition in Rivers State had given the respondent an unconditional leave to defend the petition in point. It will serve the best interest of justice if the provision (sub-paragraph 2(a) of section 241 (supra) accommodates the order made by the gubernatorial Election Tribunal which sat in Port Harcourt in order to obviate any discrimination between the appeals from the specified courts and other tribunals or courts of competent jurisdiction. In these circumstances, I entirely agree with the opinion expressed in the leading judgment that since no right of appeal to this court enures or appertains to a situation in which the Federal High Court or State High Court made an unconditional leave to defend, the intention of those who made the 1999 Constitution will in no way be defeated, if it extends to the unconditional leave granted to the respondent to defend the petition in point by the Governorship Election Tribunal in Rivers State which sat in Port Harcourt.
In retrospect, by virtue of section 241(2)(a) of the 1999 Constitution no right of appeal against the order of the said election tribunal, shall in the prevailing circumstances, avail the appellant to this court, I also agree, that the instant interlocutory appeal fails and it is struck out for want of competence. I abide by the consequential order on costs.

AMAIZU, J.C.A.: I have had the advantage of reading in draft, the lead judgment of my learned brother, Salami, JCA, just delivered.
I agree with his reasoning and conclusion that the appeal is incompetent. And, consequently should be dismissed.
I wish to add however that the object of interpretation of an Act of Parliament is to discover the intention of the law makers. This intention in my view, is only deductible from the language used. Once the meaning is clear, the courts are to give effect to it. The courts are not to defeat the plain meaning of an enactment by an introduction of their own words into the enactment.
Again, where there are choices of interpretation, the court must avoid the choice which would reduce the legislation to futility. Instead, the court should rather accept the other choice, on the principle that the legislature would only legislate for the purpose of bringing about an effective result.
Section 241 of the Constitution of the Federal of Nigeria regulates “appeals as of right from the Federal High Court to this court.” Subsection 2 thereof reads as follows:
“Nothing in this section shall confer any right of appeal-
(a) from a decision of the Federal High Court or any High Court granting unconditional leave to defend an action.
I am aware that the same Constitution in section 246 regulates “appeals from Code of Conduct Tribunal and other courts and tribunals”. The provision does not cover a situation where a tribunal grants unconditional leave to defend an action that eventually comes to this court. The issue now is, what happens in a situation like that?
We must remind ourselves that section 36(1) of the Constitution provides that:
“In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.”
The provision does not define the words “fair hearing” used therein. The words are however defined in Black’s Law Dictionary, Seventh Edition as –
“Fair hearing” – A judicial or administrative hearing conducted in accordance with due process.”
It is beyond paradventure that all courts in Nigeria are bound to comply with the provisions of section 36(1) of the Constitution of Nigeria, 1999. It is in the light of this, in my considered view that section 241(2) above becomes very relevant.
In the case of Bank of New South Wales v. Commonwealth (1948) 76 CLR an Australian case, which was quoted with approval by Fatai Williams, CJN in the case of Samuel O. U. Igbe v. Governor of Bendel State and others (1983) 1 SCNLR 73, (1983) NSCC (Pt.54) at 61, the relevant passage reads –
“Each provision of the Constitution should be regarded, not as operating independently but as intended to be construed and applied in the light of other provisions of Constitution.”
The combined effect of all I have said is that the appeal is incompetent under the provisions of section 241(2) of the Constitution. After all, if –
“the question is whether the Constitution has used an expression in the wide or narrower sense, the court should always lean where the justice of the case so demands, to the broader interpretation, unless there is something in the con or in the rest of the Constitution to indicate that the narrower interpretation will best carry out its object and purpose.”
And this is not the case in the present appeal. A.-G., Kaduna State v. Hassan (1985) 2 NWLR (Pt. 8) 483 at 502.
My Lords, I shall end this contribution by referring to the following passage in the case of Senator Adesanya v. The President of the Federal Republic of Nigeria (1981) 2 NCLR 358, (1981) 5 SC 112 at 134 –
” … I only need to add that I am also strongly of the view that when interpreting the provisions of the (1979) Constitution, not only should the courts look at the constitution as a whole, they should also construe its provisions in such as to justify the hopes and aspirations of those who have made strenuous effort to provide us with – ‘a constitution for the purpose of promoting the good government and welfare of all…”
The appeal is dismissed. I abide by the consequential order made in the lead judgment, including the order as to costs.

OGUNBIYI, J.C.A.: The matter at hand is an interlocutory appeal against the ruling of the National Assembly/Governorship and Legislative Houses Election Petition Tribunal (“the tribunal”) sitting at Port Harcourt delivered on 16th February, 2004.
The appellant was the petitioner at the tribunal and the respondent herein was the 1st respondent to the petition before the tribunal.
Upon service of the petition on him, the respondent on 26th May, 2003, entered appearance thereto and subsequently on the same date, he challenged the competence of the petition. The tribunal after hearing the application by the 1st respondent, struck out the petition filed before it. Consequently, the petitioner thereafter appealed wherein the tribunal’s decision was reversed and the petition restored for hearing. The 1st respondent felt unhappy and therefore appealed to the Supreme Court which struck out the appeal for incompetence.
When the petition was relisted before the tribunal for hearing, the 1st respondent filed an application for enlargement of time within which to file the 1st respondent’s reply. The petitioner raised an objection to the application and also opposed the same on merit. The application for enlargement of time was consolidated with the objection thereto. The tribunal after considering the papers filed, and the arguments of counsel subsequently dismissed the petitioner’s objection and granted the enlargement of time to file the already pending reply filed before it. The appellant has now appealed against the said decision by filing notice of appeal on three grounds, upon which the two issues formulated for determination therefrom were also adopted by the respondent. The said issues were reproduced on the lead judgment which same need not be repeated. Both counsel to the parties submitted at great length and cited authorities in substantiation of their respective positions. While the learned appellant’s counsel Chief M. I. Ahamba KSC, SAN, on the one hand in summary urged us to allow the appeal and strike out the 1st respondent’s reply as being incompetent before the tribunal. B. M. Wifa (SAN) on the other hand and on behalf of the respondent had urged that the appeal be dismissed for lacking in merit.
The determination of the competence or not of this appeal squarely lies on the constitutional provisions in particular sections 241(2)(a), 246 and 285 of the Constitution of the Federal Republic of Nigeria, 1999, which are of relevant significance.
Generally, section 241 relates to appeals as of right from the Federal High Court or a High Court. Specifically, subsection 2(a) states:
“(2) Nothing in this section shall confer any right of appeal-
(a) from a decision of the Federal High Court or any High Court granting unconditional leave to defend an action.”
Section 246 of the said Constitution covers rights of appeal from Code of Conduct Tribunal and other Courts and Tribunals which establishment are clearly spelt out under the provision of the Fifth Schedule to the Constitution. In the same vein, section 285 of the same Constitution is in respect of the establishment and jurisdiction of election tribunals which nature is conceptually covered by the Sixth Schedule therein.
Having regard to the argument by the learned appellant’s Counsel wherein he favoured section 246 as against 241(2)(a) of the Constitution, the contention in my view does not hold good ground.
My humble deduction in this respect is predicated on the nature and purport of sections 246 and 285 wherein the legislative salient intendments are subsuming of the provisions of section 241. In other words and with due respect to the learned senior counsel, Chief Ahamba, SAN, therefore, I differ that the matter is alien to the ambit of section 241(2)(a) of the Constitution. It is apparent that while subsection (1) to section 241 is open ended, free flowing, giving rise to a wider and greater sphere of consideration, sub-section (2) however is restrictive in nature and appears water tight in application.
Needless to emphasize that the human inclination and expectations are basically the same especially on equal treatment and uniform application of the law. In other words, the perception of justice to be worthy of its existence must be equally applied to all situational circumstances and which must not be of double standard. This in my humble view is the purport safeguard of section 241 of the constitution.
The nature of the present appeal is interlocutory which the Blacks Law Dictionary fifth Edition at page 731, state same as:
” …An appeal of a matter which is not determinable of the controversy, but which is necessary for a suitable adjudication of the merits.”
The word interlocutory has also been defined by the some dictionary as:
“Provisional, interim, temporary, not final. Something intervening between the commencement and the end of the suit which decides some point or matter, but is not a final decision of the whole controversy.”
From the very nature of the interlocutory appeal before us, the ultimate aim is to determine the finality of the entire case and therefore completely shut out the respondent at this preliminary stage without ever being heard. This, from all indications, is the contention of the appellant and which same is contrary to both the spirit of the law as well as the interpretational meaning of “interlocutory appeal” and also the word “Interlocutory” itself. This undoubtedly contravenes the provisions of section 36(1) of our Constitution on the right of fair hearing.
A just fair and an organized society is that built upon a concept of natural justice, equity and good conscience. The said phenomenal principle is inbuilt and enshrined in the foundational framework, existing and forming the basis of our Constitution. If the courts as guardians of justice should neglect to discharge the very purpose for which they have been set up, their failure in abdicating the sacred duty would amount to defeating their very function, thus, bringing them into disrepute and therefore good for nothing.
It is also pertinent to restate that the best of decisions and even settlements of ordinary disputes are those wherein both parties have been given the opportunity to be heard. In other words, where there has been the compliance with the cardinal principle of fair hearing and thus fulfilling the ultimate purpose of the law, which has been put in place for the good of the society.
In the result therefore and having regard to the provisions of section 241 paragraph (a) of subsection (2), there is no right of appeal from a High Court to the Court of Appeal in respect of an order granting an unconditional leave to defend an action. The converse is also true as per the decision laid down in the case of National Bank of Nigeria Ltd. v. Weide & Co. cited in the lead judgment.
In the conclusion therefore, I also agree with the lead judgment by my learned brother, Salami, JCA, that the interlocutory appeal is incompetent and this court is robbed of jurisdiction to entertain same.
Consequently, and having regard to the deductions and more particularly with the reasoned conclusions arrived at in the lead judgment, I also strike out the appeal for incompetence, and abide by the order as to costs.

MIKA’ILU, J.C.A.: I have had the opportunity, of reading the draft judgment of my learned brother, Isa Ayo Salami, JCA. I also agree that this interlocutory appeal is incompetent and I strike it out for being incompetent. I give no order as to costs.

Appeal struck out.

Appearances

Chief Mike Ahamba, SAN (with him, Mike Okoye, Esq. and C.A.C. Ofurum, Esq.)For Appellant

AND