CLEMENT EZENWOSU V. PETER NGONADI
In The Supreme Court of Nigeria
On Friday, the 27th day of March, 1992
SC.274/1989
RATIO
APPEAL- EXTENSION OF TIME TO APPEAL: WHETHER IT IS ONLY THE SUPREME COURT THAT CAN EXTEND TIME WITHIN WHICH AN APPEAL CAN BE INITIATED FROM THE COURT OF APPEAL TO THE SUPREME COURT AFTER THE PRESCRIBED PERIOD HAS PASSED
“The power of initiating an appeal from the Court of Appeal to the Supreme Court is provided in Sections 213 and 216 of the 1979 Constitution, and the Supreme Court Act 1960 Section 31, while the Supreme Court Rules, 1985, spelt out the procedure. Where for any reason person desirous to appeal to the Supreme Court runs out of the prescribed statutory period or doing so, only the Supreme Court can extend the time and give him leave to do so. It is also only the Chief Justice of Nigeria that can issue Practice Direction for the implementation of the Rules made by him as a result of the power conferred on him by Section 216 of the Constitution. The Court of Appeal is only empowered to grant leave to appeal within the statutory period allowed for appealing. Both the application for leave to appeal and the granting of the leave must all be within the statutory period but not otherwise.” PER WALI, J.S.C.
INTERPRETATION OF STATUTE – SECTION 227 OF THE 1979 CONSTITUTION: INTERPRETATION OF SECTION 227 OF THE 1979 CONSTITUTION AS IT RELATES TO THE POWERS OF THE PRESIDENT OF THE COURT OF APPEAL TO MAKE RULES FOR REGULATING THE PRACTICE AND PROCEDURE OF THE COURT OF APPEAL
“It is expressly provided in Section 227 of the 1979 Constitution as follows: 227 Subject to the provisions of any Act of the National Assembly, the President of the Court of Appeal may make rules for regulating the practice and procedure of the Court of Appeal. (italics mine) As the above provision has made the power of the President of the Court of Appeal to make rules “subject to the provisions of any Act of the National Assembly,” it follows that the learned president’s exercise of those powers is intended to be curtailed and circumscribed by any relevant Act of the National Assembly. For the phrase “subject to” is a usual provision used to subject or subsume the provision of a subject statute, be it substantive or adjectival, to the provisions of a master enactment. See on this Lagos State Development & Property Corporation v. Foreign Finance Corp. (1987) 1 N.W.L.R. (Pt.50) 413 at p.461; Obikoya & Sons Ltd. v. The Governor of Lagos State & Anor (1987) 1 NWLR (Pt.50) 385; at pp. 408-409; Aqua Limited v. Ondo State Sports Council (1988) 4 N.W.L.R (Pt.91) 622 p. 655 . It follows, therefore, that to accept that those Directions were designed to give effect to the provisions of Section 31 of the Supreme Court Act, and thereby accept an implied extension of the periods for appeal fixed by the Act, is to subject the legislative power of the National Assembly to the rule making power of the learned President. This, in my view, will be a reversal of the constitutional intention as expressed in Section 227 of the 1979 Constitution. This should not be. In any event, it was also a valid submission by the learned Senior Advocate for the appellant that Section 227 of the Constitution was designed to enable the President to make rules of practice and procedure for appeals to the Court of Appeal from the High Courts and other tribunals. The powers were never intended to be invoked to regulate appeals to the Supreme Court, such as the one under appeal. The conclusion I feel bound to reach is that there is nothing in the Practice Directions No. 1 of 1989 that could have saved the appeal in this case which was filed some three weeks and two days later than the three months fixed by Section 31 (2) (a) of the Supreme Court Act, 1960.” PER NNAEMEKA-AGU, JSC.
APPEAL- LEAVE TO APPEAL: WHAT IS REQUIRED OF AN APPELLANT WHEN TIME TO APPEAL IS STATUTORILY FIXED AND LEAVE TO APPEAL IS REQUIRED
“Now there can be no question that when time to appeal has been fixed by statute and leave to appeal is required, the intending appellant ought to seek and obtain leave and file his appeal within such a period fixed, unless of course he obtains an appropriate order for extension of time: see -Bowaje v. Adediwura (1976) 6 SC 143, p. 146; Amudipe v. Arijodi (1978) 9 -10 SC 27, p. 30-33.” PER NNAEMEKA-AGU, JSC.
ACTION-COMMENCEMENT OF AN APPEAL: WHAT IS THE EFFECT OF COMMENCING A SUIT WITH THE NAME OF A DECEASED PERSON
“This Court, per, Craig, J.S.C. held that a notice of appeal filed by a deceased person could not be a valid notice of appeal. It is, of course, a settled point of law that a suit (hence an appeal) commenced in the name of a deceased person is incurably bad. The defect can not even be cured by an amendment: See In Re: The matter of Pedro St. Matthew Daniel (Deceased) (1950) 19 N.L.R. 73; also Tetlow v. Orela Ltd. (1920) 2 Ch. 24; also Clay v. Oxford L.R. 2 Ex. 54.”PER NNAEMEKA-AGU, JSC.
JUSTICES
SAIDU KAWU Justice of The Supreme Court of Nigeria
PHILLIP NNAEMEKA-AGU Justice of The Supreme Court of Nigeria
ABUBAKAR BASHIR WALI Justice of The Supreme Court of Nigeria
EPHRAIM OMOROSE IBUKUN AKPATA Justice of The Supreme Court of Nigeria
UCHE OMO Justice of The Supreme Court of Nigeria
Between
CLEMENT EZENWOSU Appellant(s)
AND
PETER NGONADI Respondent(s)
B. WALI, J.S.C. (Delivering the Leading Judgment): The appeal is against the Ruling of the Court of Appeal, Enugu in CA/E/IM/89, delivered on 10th October, 1989 in which Oguntade, J.C.A (With whom Kutigi and Katsina-Alu, J.J.C.A. agreed), granted the present respondent leave to appeal to the Supreme Court:
The facts of this case, as set out in the Ruling of Oguntade J.C.A, are as follows-
The respondent/appellant Clement Ezenwosu was the plaintiff in suit No. AA/44/72 in which he claimed against Aaron Ngonadi (now deceased) for a declaration of title and injunction in respect of a parcel of land situate at Umuchu in Aguata Local Government Area of the then Anambra State of Nigeria. At the end of the trial the learned trial judge, Obi Okoye delivered judgment on the 4th March, 1977 in favour of the plaintiff/respondent granting the two reliefs he asked for.
Sequent to the trial court’s judgment, Peter Ngonadi, (the son of Aaron Ngonadi), filed an application in the Court of Appeal Enugu, for leave to appeal as an interested party. The application was contested and in a considered Ruling of that court delivered by Katsina-Alu J.C.A, on 26th May 1989 (with which Macaulay and Oguntade agreed), he refused that application and dismissed it.
Mr. Peter Ngonadi, being not satisfied with the Court of Appeal Ruling of 26th May 1989 filed another application before the same court; though slightly differently constituted, seeking for leave of that court to appeal to the Supreme Court against the order refusing him to leave appeal. In support of that, among other things he filed, he exhibited three proposed grounds of appeal. In granting the prayers in the application, the learned justice concluded –
“The 3rd ground of appeal above clearly raises an issue of law and applicant can appeal thereupon as of right, without seeking the leave of this court. The complaint therein is that we have incorrectly applied the law to facts that are undisputed. This is an error in law. See Section 213 (2) (a) of the 1979 Constitution and Ogbechie v. Onochie (1986) 2 NWLR. (Pt. 23) 484.
I have considered closely the 1st and 2nd grounds of appeal. I think they raise important issues of mixed law and fact. I would therefore grant the applicant leave to appeal on those two grounds only,”
Henceforth both the applicant and the respondent will be referred to as the respondent and the appellant respectively in this judgment. .
The appellant and the respondent filed and exchanged briefs. Both the appellant and the respondent formulated three issues for determination in their respective briefs.
For the appellant the issues are:-
“(a)(i) Was the Ruling of the Court of Appeal delivered on the 26th of May, 1989, in CA/E/IM/89 a final decision or an interlocutory decision
(ii) Did the Practice Direction of the Court of Appeal No.1 of 1989 published as Government Notice No. 356 of 1989 suspend during the annual vacation of the Court of Appeal the running of time within which to apply for leave to appeal to the Supreme Court as provided in Section 31 (2) (a) of the Supreme Court Act, 1960
(iii) Had the Court of Appeal jurisdiction to hear or grant the applicant-respondent’s application for leave to appeal to the Supreme Court against the Ruling of the Court of Appeal dated the 26th day of May, 1989, dismissing the applicant respondent’s application for extension ‘of time within which to appeal against the judgment of the High Court delivered in Suit No.AA/44/72 on the 4th day of March, 1977.
(b) Was the Court of Appeal right in granting leave to the applicant, respondent to appeal to the Supreme Court”
While that for the respondent also are:-
(i) Is the Court of Appeal right in its judgment that its ruling of 26th May, 1989 was a final decision
(ii) Is the Court of Appeal right to state that the Practice Direction No. 1 of 1989 and published as Government Notice No. 356 of 1989 is not inconsistent with Sec. 31 of the Supreme Court Act, 1960
(iii) Did the Court of Appeal properly exercise its discretion to grant the Applicant/Respondent leave to appeal’ to the Supreme Court on the two grounds of mixed law and facts
Although the issues so formulated by the parties are not identically worded, their purports are the same and simply put are- ,
1. Whether the Court of Appeal ruling of 26th May 1989 refusing the respondent leave to appeal against the judgment of the High Court is a final decision.
.2. Whether the Court of Appeal Practice Direction No.1 of 1989 published as Legal Notice No.356″of 1989 is consistent with Sec. 31 of the Supreme Court Act, 1960.
3. Whether the Court of Appeal had jurisdiction to grant the respondent leave to appeal to the Supreme Court on the date it did so.
I think issues (a) (ii), (iii) and (b) of the appellant’s brief and issues (ii) and (iii) of the respondent’s brief can be conveniently taken together and if the answers to them as reformulated in this judgment by me are in the negative, that will be sufficient to dispose of this appeal.
On these issues learned counsel for the appellant Mr. G.R.I. Egonu, SAN, contended that although the application for leave to appeal against the Ruling of 26th May 1989 was filed 17 days after its delivery by the Court of Appeal, yet it was not heard by the Court of Appeal until after a period of three months, 3 weeks and 2 days had elapsed. He submitted that whether or not the Ruling is considered to be a final or interlocutory decision the leave was granted well after the statutory periods prescribed for that. He further submitted that Sec. 227 of the Constitution of the Federal Republic of Nigeria 1979 confers on the President of the Court of Appeal; power to make rules for regulating the practice and procedure of the Court of Appeal subject to the provisions of any Act of the National Assembly. Learned Senior Advocate also pointed out that the Practice Direction relied upon by the Court of Appeal to grant the application was made to give effect to the provisions of the Court of Appeal Rules and that it would only affect computation of time to the exercise of that court’s powers under the Rules. The learned Senior Advocate submitted, and rightly too in my view, that the provisions for the periods within which to appeal against the Court of Appeal decisions are contained in Section 31 of the Supreme Court Act, 1960 and therefore that Practice Direction No.1 of 1989 made by the President of the Court of Appeal cannot apply to that Act. In support, the following authorities were cited and relied on – TUNJI BOWAJE V. MOSES ADEDIWURA (1976) 6 SC. 143; AMUDIPE V. ARIJOBI (1978) 9 – 10 S.C.27 at 30; ODOGIY ANI V. HISPANIC CONSTRUCTION (NIG.) LTD. (1986)5 N.W.L.R. (Pt.39) 127; OCEAN STEAMSHIP (NIG.) LTD. (NO.2) V. SOTUMINU & ORS. (1987) 4 N.W.L.R. (PT.67) 996; OWONIBOYS TECH. SERVICES LTD. V. JOHN HOLT LTD. (YAMACO DIVISION) (1991) 6 N.W.L.R. (Pt. 199) 550 and NIGER CONSTRUCTION LTD. V. CHIEF A.O. OKUGBENI (1987) 4 N.W.L.R. (Pt.67) 787.
On these issues, it was the submission of learned counsel for the respondent that although the application for leave to appeal as an interested party was refused by the Court of Appeal on 26th May 1989, yet the Court of Appeal still retained the jurisdiction to hear the subsequent application for leave to appeal to the Supreme Court on grounds other than of law by virtue of the provisions of the Practice Direction of the Court of Appeal. No. 1 of 1989, the purpose of which he said was “made to effectuate the provisions of section 31 (2) (a) of the Supreme Court Act 1960”, It was also the contention of learned counsel that as the Ruling of the Court of Appeal was delivered on 12th June 1989 and the Notice and Grounds of Appeal were filed on 10th October 1989, they were all well within the statutory period allowed, since the time to do so would expire on 26th October 1989, taking into account that the periods of the legal vacation both in the Court of Appeal and the Supreme Court were to be from 17th July, 1989 to 3rd September 1989 and 24th July 1989 to 3rd September 1989 respectively, He urged this Court to dismiss the appeal.
Section 220(1) of the 1979 Constitution confers on the parties the right to appeal from decisions of the High Court to the Court of Appeal, while section 221 confers such right of appeal with the leave of either the High Court or the Court of Appeal. The right conferred by sec. 221 is further subjected to the provision of section 222 of the same Constitution, and sub-section (b) of sec. 222 states clearly that the right “shall be exercised in accordance with any Act of the National Assembly and rules of court for the time being in force regulating the powers, practice and procedure of the Court of Appeal. Section 227 confers on the President of the Court of Appeal power to make rules in that con. The relevant Act is the Court of Appeal Act, 1976 while the Rules are the Court of Appeal Rules 1981.
Section 25(1) and (3) of the Court of Appeal Act, 1976 specified time for appealing to the Court of Appeal from a decision of the High Court, Sub-sections (3) and (4) of Section 25 provide that-
“(3) Where an application for leave to appeal is made in the first instance to the court below, a person making such application shall, in addition to the period prescribed by subsection (2) of this section, be allowed a further period of fifteen days, from the date of the determination of the application by the court below. to make another application to the Court of Appeal.
(4) The Court of Appeal may extend the periods prescribed in subsections (2) and (3) of this section”
Subsection 4 of section 25 of the Act confers on the Court of Appeal powers to extend time provided for appealing in section 25(1) and (2).
Order 3 rule 3 of the Court of Appeal Rules, 1976 provides the procedure of extending time within which to appeal against the decision of the High Court. By virtue of sections 222(b) and 227 of the Construction, the President of the Court of Appeal promulgated the Practice Direction Number 1 of 1989 to give effect to the Rules for the purpose of computing “any period within when an application for leave to appeal of for filing appellant’s or respondent’s brief or reply brief and in that regard declared that the period “for vacation of the Court of Appeal shall not be taken into account”. In other words, the period to be yearly declared as “vacation period” shall nor be counted against any applicant for computing the period allowed by the Rules.
The whole exercise deals with appeals from the High Court to the Court of Appeal. It does not apply to an appeal lying from a decision of the Court of Appeal to the Supreme Court. The power of initiating an appeal from the Court of Appeal to the Supreme Court is provided in Sections 213 and 216 of the 1979 Constitution, and the Supreme Court Act 1960 section 31, while the Supreme Court Rules, 1985, spelt our the procedure. Where for any reason person desirous to appeal to the Supreme Court runs out of the prescribed statutory period or doing so, only the Supreme Court can extend the time and give him leave to do so. It is also only the Chief Justice of Nigeria that can issue Practice Direction for the implementation of the Rules made by him as a result of the power conferred on him by section 216 of the Constitution. The Court of Appeal is only empowered to grant leave to appeal within the statutory period allowed for appealing: Both the application for leave to appeal and the granting of the leave must all be within the statutory period but not otherwise.
The interpretation and application of the practice Direction No. 1 of 1989 made by the president of the Court of Appeal was considered by this Court in the case of OWONIBOYS TECHNICAL SERVICES LTD. V. JOHN HOLT LTD. (1991) 6 N.W.L.R. (Pt.l99) .550 at 558. Where it was held by Uche Omo, J.S.C, delivering the lead judgment of the Court that-
‘”Nothing therein empowers the Court of Appeal to extend time within which to appeal to the Supreme Court. The Practice Direction must apply to the powers which the Court of Appeal can exercise, to wit, in respect of computation of time for appeals from the High Court to the Court of Appeal, and compliance with its orders on other matters within its jurisdiction. It cannot conceivably apply to statutory provisions governing time within which to appeal to the Supreme Court.
The Court of Appeal has itself so decided in Dopemu v. Adeyeri & Ors. v. Akinbode Okobi & Ors. (1989) 5 NWLR (Pt.119) 1. When it held, as to the purpose of the aforesaid Practice Direction, that it is meant-
‘1. …. to give effect to the provisions of the Rules of the Court of Appeal by excluding the period of Vacation of the Court from computation of the period within which any application for leave to appeal to the Court of Appeal from the decisions of the High Court or for filing of briefs’ of arguments in respect of appeals pending in the Court of Appeal may be brought’.”
and as to its scope that
“2. If the Practice Direction No.1 of 1989 is construed to extend to applications for leave to appeal to the Supreme Court, it means that the president of the Court of Appeal made a rule regulating the practice and procedure of the Supreme Court which is not the case. The Practice Direction therefore applied to all applications for leave to appeal to the Court of Appeal from the decisions of the court below and the filing of appellant’s brief or reply brief and not just application for leave to appeal from the Court of Appeal to the Supreme Court’.”
As shown by the learned Senior Advocate for the appellant, the leave granted by the Court of Appeal was well outside the statutory period, whether the decision is considered to be interlocutory or final, and it is therefore null and void. It is so declared. It is therefore not necessary to make any pronouncement on whether the Court of Appeal ruling of 26th May, 1989 is final or interlocutory. The exercise will for this purpose be merely academic.
The appeal succeeds and it is allowed. The decision of the Court of Appeal dated 10th October, 1989 granting the respondent leave to appeal is declared a nullity as it was given without jurisdiction. N1,000.00 costs is awarded to the appellant against the respondent in this Court and N500.00 costs in the Court below.
S. KAWU, J.S.C.: I have had the privilege of reading, in draft, the lead judgment of my brother, WALI, J.S.C. which has just been delivered I agree entirely with him that for the reasons fully set out in his judgment, this appeal ought to be allowed.
It was common ground that the respondent’s application to the Court of Appeal for leave to appeal was considered outside the statutory period of three months allowed by section 31(2)(a) of the Supreme Court Act, 1960. The issue is whether the Court of Appeal had jurisdiction to entertain the application when it did.
In my view, the Court had no jurisdiction to entertain the application simply because, as had been stated by this Court in Owoniboys Technical Services Ltd. v. John Holt. Ltd. (1991) 6 N.W.L.R. 9Pt.199), the Practice Directions of the Court of Appeal, No. 1 of 1989 cannot possibly apply to the statutory provisions relating to time within which an appeal, or leave to appeal to the Supreme Court must be filed. I allow the appeal with N1,000.00 costs awarded to the appellant.
P. NNAEMEKA-AGU, J.S.C.: This case has had a rather chequered history. In suit No. AA/44/72, Clement Ezenwosu claimed against Aaron Ngonadi in the High Court of Awka in Anambra State for a declaration of title to a piece or parcel of land situate at Umuchu in Anambra State, damages for trespass, and injunction. After trial, Obi Okoye, J entered judgment for the plaintiff on the 4th of March 1977. The defendant appealed; but on 28/6/83, the appeal was struck out for want of prosecution. After an unsuccessful attempt to have the appeal relisted, the defendant applied for an extension of time within which to appeal, for leave to appeal, and for an order that the name Peter Ngonadi be substituted for that of Aaron Ngonadi, who allegedly died on 27/4/77. This was granted on 2/5/85. The plaintiff appealed against the ruling mainly on the contention that Aaron Ngonadi died on 4/4/77 that is long before Peter Ngonadi appealed and applied that his name be substituted for that of the deceased original plaintiff and that it was incompetent to appeal in the name of a deceased party. This Court, per, Craig, J.S.C., held that a notice of appeal filed by a deceased person could not be a valid notice of appeal. It is, of course, a settled point of law that a suit (hence an appeal) commenced in the name of a deceased person is jncurably bad. The defect can nor even be cured by an amendment: See In re: The matter of Pedro St. Matthew Daniel (Deceased) (1950) 19 N.L.R. 73; also Tetlow v. Orela. Ltd. (1920) 2 Ch. 24; also Clay v. Oxford L.R. 2 Ex. 54. The Court also pointed out that the correct position was for Peter Ngonadi to have applied and satisfied the Court that he should be granted leave and extension of time to appeal as a person interested under section 222 of the 1979 Constitution.
It was the attempt of the applicant to follow up this last procedure that has led to this appeal. For, Peter Ngonadi then applied sometime in 1989, inter alia, for extension of time within which to apply for leave to appeal against the judgment of Obi Okoye, J., dated 4/3/77 as a person interested in the subject matter of the suit, for leave to appeal, and for extension of time within which to appeal. In its ruling dated 26th May, 1989, the Court of Appeal Enugu Division, per Katsina-Alu, J .C.A. (Macaulay and Oguntade concurring) held:
(i) that the applicant and not his counsel should he held to blame for the long delay in bringing the application;
(ii) that the court was not satisfied that the proposed grounds of appeal prima facie show good cause way the appeal should be heard.
So, the Court refused the application.
Next, the defendant wanted to appeal to this Court against this ruling; and so, applied for leave of the Court of Appeal to do so. its ruling dated the 10th of October, 1989, the Court of Appeal held:
(i) That its decision dated 26th May 1989 was final, and not interlocutory since by its nature no further reference was to be made to the High Court or the Court of Appeal. Akinsanya v. U.B.A. Ltd. (1986) 4 N.W.L.R. (Part 35) 273;
(ii) That the Practice Directions No. 1 of 1989 issued by the President of the Court of Appeal as G.N. No 356 of 1989 was not inconsistent with the provisions of section 31 of the Supreme Court Act, 1960;
(iii) That the 3rd ground of appeal as proposed by the applicant/appellant raises an issue of law only, and so he does not need leave to appeal thereon as of right: and
(iv) That grounds 1 and 2 of the proposed grounds of appeal raise important issues of mixed law and fact, and so, require leave. Leave was, therefore, granted therefor.
The plaintiff (hereinafter to be referred to as the appellant) has appealed against the said ruling. As the grounds of appeal clearly bring out the argument on behalf of the appellant in this appeal, I shall set them out in full. They run thus.
“(1) (a) That the Court of Appeal had no jurisdiction to hear or grant the applicant-respondent’s application for leave to appeal against its ruling in the above matter dated the 26th day of May, 1989, as the application was filed and heard and purportedly granted outside the statutory period as provided by Section 31(2) (a) of the Supreme Court Act, 1960.
(b) That the Court of Appeal misdirected itself in law in holding that its Ruling of 26th May, 1989, in the above matter was a final decision.
Particulars of Misdirection
(i) That the rights of the parties (including their privies and successors) to the subject-matter of Suit No AA/44/72 was, subject to appeal, finally determined by the judgment delivered in that case on the 4th day of March, 1977.
(ii) That the decision of the Court of Appeal in the above matter dated 26th day of May, 1989, was an interlocutory decision and not a final decision:
(c) That the Court of Appeal misdirected itself in law in relying on the Practice Direction No. 1 of 1989 published as Government Notice No. 356 of 89 to hear and determine that applicant respondent’s application in the above matter:
Particulars of Misdirection
(i) That the Practice Direction No.1 of 1989 made by the President of the Court of Appeal and published as Government Notice No 356 of 1989 has no application to proposed appeals from the Court of Appeal to the Supreme Court.
(ii) That the President of the Court of Appeal can only make Rules with respect to appeals from lower Courts to the Court of Appeal.
(iii) That the power of the President of the Court of Appeal to make Rules under section 227 of the Constitution of the Federal Republic of Nigeria; 1979, was made subject to the provisions of any Act of the National Assembly.
(iv) That the part of the Practice Direction No. 1 of 1989 made by the President of the Court of Appeal and published as Government Notice No 356 of 1989 purporting to affect the periods prescribed for applications for leave to appeal is null and void.
(v) That at any event the practice Direction No.1 of 1989 made by the President of the Court of Appeal and published as Government Notice No. 356 of 1989 was in respect of the computation of such period allowed by the Rules of Court AND NOT IN RESPECT OF ANY PERIOD PRESCRIBED BY ANY ACT OF THE NATIONAL ASSEMBLY.
(2) That the Court of Appeal erred in Law in granting leave to the applicant-respondent to appeal to the Supreme Court against its Ruling dated the 26th day of May, 1989, on two of his proposed grounds of appeal.
Particulars of Error
(i) That the two proposed grounds of appeal in respect of which the Court of Appeal granted the applicant respondent leave to appeal to the Supreme Court contravened the provisions of Order 8 Rule 2 (2) of the Supreme Court Rules, 1985.
(ii) That leave to appeal is not granted as a matter of course.
(iii) That the applicant respondent’s proposed ground of appeal did not warrant granting him leave to appeal to the Supreme Court.”
My learned brother, Wali, J.S,C. has set out the issues formulated by learned counsel on both sides for the appeal. I shall not repeat them. I, however, wish to add a few comments of my own on some of those issues.
On the question whether the ruling of the Court of Appeal given on the 26th of May, 1989 was final or interlocutory, I have to advise myself that that is usually not an easy question to address. Lord Denning recognized the enormity of the problem when he stated:
“This question of ‘final’ or ‘interlocutory’ is so uncertain that the only thing for practitioners to do is to look up the practice books and see what has been decided on the point.”
See Salter Rex & Co. v. Ghosh (1971) 2 Q.B. 597. It is, however, true to say that in practice decided cases have recognized two distinct approaches to the problem. One is to look at the result of the decision to be appealed against: if it finally disposed of the rights of the parties, then it is final; but if it did not, it is interlocutory. See Lord Alverston C.J. in Bozson v. Altrincham U.D.C (1903) 1 K.B. 547. Such a decision invariably affects the status of the parties to the decision and does not involve any further reference to the court appealed from. The other is to look at the nature of the proceedings. This regards an order or decision as interlocutory unless it was made on an application or proceeding of such a character that whatever order was made thereon must finally have disposed of the matter in dispute. (Salaman v. Warner (1891) Q.B 734. In this country the former test has usually been preferred: see Blay v. Solomon (1947) 12 W.A.C.A, 175; Ude & Ors. v. Agu (1961) 1 SCNLR 98; (1961) 1 All N.L.R. 66; Akinsaya v. U.B.A Ltd. (1986) 4 NWLR (Pt.35) 273, at pp. 292-295, and so many other decisions. Under this test it has been recognized that a final order for purposes of an appeal can be made in an ordinary application, if it disposes of the rights of the parties on the particular issue and there is no need for any further reference to the court which made the order. In the instant case, the refusal of the application by the defendant for leave and extension of time to appeal as a person interested finally disposed of his right in that respect, subject only to appeal. It was, therefore, in my view, a final order. The Court of Appeal was right in that respect.
But this conclusion may not necessarily help the defendant/respondent. For the further submission of learned senior advocate for the appellant, Mr. Egonu, is that the appeal was filed three weeks and two days late, that is well after the period of three months allowed by section 31 (2)(a) of the Supreme Court Act, 1960, for appealing against final orders. Learned Senior Advocate for the respondent, Mr Akpamgbo’s reply is that that period would apply subject to the provisions of the Practice, Directions No.1 of 1989, whereby the period of annual vacation is to be disregarded in the computation of time fixed for doing a number of things in various proceedings.
Now there can be no question that when time to appeal has been fixed by statute and leave to appeal is required, the intending appellant ought to seek and obtain leave and file his appeal within such a period fixed, unless of course he obtains an appropriate order for extension of time: see -Bowaje v Adediwura (1976) 6 S.C. 143, p. 146; Amudipe v Arijodi (1978) 9 -10 S.C. 27, p. 30-33. The only question is whether this period of three months fixed by section 31 (2)(a) of the Supreme Court Act, 1960 could be computed to exclude the period of annual vacation of the Court of Appeal by reason of the Practice Directions No. 1 of 1989, which provides:
In exercise of the powers conferred by section 227 of the Constitution of the Federal Republic of Nigeria, 1979, I, MAMMAN NASIR, President of the Court of Appeal give the following Practice Direction:-
“1. For the purpose of giving effect to the provisions of the Court uf Appeal Rules in respect of any period within which any application for leave to appeal or for filing appellant’s or respondent’s brief or reply brief the period declared for the vacation of the Court shall be taken into account for the computation of such period allowed by the Rules of Court ..
2. For the avoidance of doubt the period between the 17th day of July, 1989 to the 3rd day of September, 1989 is hereby declared as vacation period.
MADE at Lagos this 1st day of July, 1989.”
As has been observed by Mr. Egonu the Practice Directions have been issued as part of the rules of practice of the Court of Appeal. They cannot have any more pervasive application than the Rules of the Court themselves. It is expressly provided in section 227 of the 1979 Constitution as follows:
227 Subject to the provisions of any Act of the National Assembly, the President of the Court of Apneal may make rules for regulating the practice and procedure of the Court of Appeal. (Italics mine)
As the above provision has made the power of the President of the Court of Appeal to make rules “subject to the provisions of any Act of the National Assembly”, it follows that the learned president’s exercise of those powers is intended to be curtailed and circumscribed by any relevant Act of the National Assembly. For the phrase “subject to” is a usual provision used to subject or subsume the provision of a subject statute, be it substantive or adjectival, to the provisions of a master enactment. See on this Lagos State Development & Property Corporation v. Foreign Finance Corp. (1987) 1 N.W.L.R. (Pt.50) 413 at p.461; Obikoya &-Sons Ltd. v. The Governor of Lagos State & Anor (1987) 1 NWLR (Pt.50) 385; at pp. 408-409; Aqua Limited v. Ondo State Sports Council (1988) 4 N.W.L.R (Pt.91) 622 p. 655. It follows, therefore, that to accept that those Directions were designed to give effect to the provisions of section 31 of the Supreme Court Act, and thereby accept an implied extension of the periods for appeal fixed by the Act, is to subject the legislative power of the National Assembly to the rule making power of the learned President. This, in my view, will be a reversal of the constitutional intention as expressed in section 227 of the 1979 Constitution. This should not be. In any event, it was also a valid submission by the learned Senior Advocate for the appellant that section 227 of the Constitution was designed to enable the President to make rules of practice and procedure for appeals to the Court of Appeal from the High Courts and other tribunals. The powers were never intended to be invoked to regulate appeals to the Supreme Court, such as the one under appeal. The conclusion I feel bound to reach is that there is nothing in the Practice Directions No. 1 of 1989 that could have saved the appeal in this case which was filed some three weeks and two days later than the three months fixed by section 31 (2) (a) of the Supreme Court Act, 1960.
For the above reasons and the fuller reasons contained in the judgment of my learned brother, Wali, J.S.C., I also allow the appeal. I therefore set aside the orders contained in the ruling of the Court of Appeal made on the 10th of October, 1989, as having been made without jurisdiction. I award N1,000.00 costs in favour of the appellant.
E. O. I. AKPATA, J.S.C.: I am in agreement with the reasoning and conclusion reached by my learned brother, Wali, JSC. The scope of the Court of Appeal practice Direction No.1 of I989.has been clearly defined and laid to rest by the judgment of this Court in the case of Owoniboys Technical Services Ltd. v. John Holt Ltd. (1991) 6 NWLR(Part 199) 500
The respondent’s brief was filed on 12th February, 1990 long before the decision of this Court on 19th July, 1991, in Owoniboys Technical Services Ltd. v. John Holt Ltd. (supra). In effect the respondent had not the advantage of reading the decision in the case under reference before it filed its brief. In the respondent’s brief it was argued that the said Practice Direction made by the president of the Court of Appeal under section 227 of the Constitution of the Federal Republic of Nigeria 1979 and section 8 (2) of the Court of Appeal Act 1976 prescribing the period of vacation of that court was valid and that the said Practice Direction, which learned counsel claimed suspended the running of time within which to apply for leave to appeal to this court during the annual vacation, was “made to effectuate the provisions of section 31(2)(a) of the Supreme Court Act 1960”
This type of argument might have been understandable before the decision of this court in Owoniboys case. The decision of this court in that case makes it clear that it was not the function of the President of the Court of Appeal to make rules to, using the words of the respondent, “effectuate the provision of section 31(2)(a) of the Supreme Court Act 1960”, and that the President did not ‘in fact in the Practice Direction attempt to make any rule relating to appeals from the Court of Appeal to the Supreme Court. Learned counsel had read into the Practice Direction what it did not contain. In effect the Practice Direction did not apply to the provisions of section 31 (2) (a) of the Supreme Court Act 1960.
One would have thought that on reading the decision of this court in Owoniboys case subsequent to filing the respondent’s brief learned counsel would have conceded in the best tradition of the Bar that the appeal was bound to succeed or would have put in motion the necessary procedure to urge this court to overrule its earlier decision in the said Owoniboys case. He was unable-to draw any valid distinction between the issue in this case and that in Owoniboys case. In the ruling given on 26th May, 1989, the Court of Appeal refused the application of Peter Ngonadi for extension of time within which to seek leave to appeal against the judgment of Obi-Okoye, J., delivered on 4th March, 1977, as a person interested in the subject matter of the suit, for leave to appeal, and for extension of time within which to appeal. On the authorities there is no disputing the fact that it was a final decision. The test which has been accepted and adopted by this Court and which is not intricate is that where a decision disposes of the right of the parties in respect of the issue before the court and the court had become functus officio in respect of the matter, it is a final decision.
The Court of Appeal ought not to have granted the respondent leave to appeal. The appeal succeeds. It is allowed. The ruling of the Court of Appeal made on 16th October, 1989 is set aside and the respondent’s application in the Court of Appeal being incompetent is struck out. I adopt the order as to costs made by my learned brother, Wali, J.S.C.
U. OMO, J.S.C.: I have had the privilege to read in draft the judgment of my learned brother WALI, J.S.C. in this appeal. I agree entirely with the view therein expressed and the conclusion arrived thereat. I also hold that the court below erred in granting leave to appeal after the expiry of the three months for appeal from the Court of Appeal to this Court by wrongly relying on Practice Direction No.1 of 1989.
This appeal is accordingly allowed with N1,000 and N500 costs in this Court and in the Court below respectively.
Appeal allowed.
Appearances
G.R.I. Egonu, SAN (with him C. O. Orakwue) For Appellant
AND
G.N. Uwechue (with him, Ikenna Oforma) For Respondent
