DANGOTE INDUSTRIES LTD & ANOR v. OCEAN BEAN GOLF AND LEISURE RESORTS LTD & ORS (2021)

DANGOTE INDUSTRIES LTD & ANOR v. OCEAN BEAN GOLF AND LEISURE RESORTS LTD & ORS

(2021)LCN/15134(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Thursday, March 18, 2021

CA/L/1191/2018

Before Our Lordships:

Obande Festus Ogbuinya Justice of the Court of Appeal

Obietonbara O. Daniel-Kalio Justice of the Court of Appeal

Onyekachi Aja Otisi Justice of the Court of Appeal

Between

1. DANGOTE INDUSTRIES LIMITED 2. DANGOTE OIL REFINING COMPANY LIMITED APPELANT(S)

And

1. OCEAN BEAN GOLF AND LEISURE RESORTS LIMITED 2. LAGOS STATE ENVIRONMENTAL PROTECTION AGENCY 3. ATTORNEY-GENERAL OF LAGOS STATE RESPONDENT(S)

RATIO

NATURE OF A PRELIMINARY OBJECTION

A preliminary objection is a specie of objection which, if sustained by a Court, will render further proceedings in a matter unnecessary, see Abe v. Unilorin (2013) 16 NWLR (Pt. 1379) 183; APC v. INEC (2015) 8 NWLR (Pt. 1462) 531; Jim-Jaja v. C.P., Rivers State (2013) 6 NWLR (Pt. 1350) 225. For this reason, the law commands the Court to deal first with a preliminary objection when raised in any proceedings, see Uwazurike v. A.-G., Fed. (2007) 8 NWLR (Pt. 1035)1; B.A.S.F. (Nig.) Ltd v. Faith Enterprises Ltd. (2010) 4 NWLR (Pt. 1183) 104; SPDCN Ltd v Amadi (2011)14 NWLR (Pt. 1266) 157; FBN Plc v. T.S.A. ind. Ltd (2010) 15 NWLR (Pt. 1216) 247; Okereke v. James (2012) 16 NWLR (Pt. 1326) 339; APC v. INEC (Supra); Ogboru v. Uduaghan (2013) 1 NWLR (Pt. 1311) 357; Efet v. INEC (2011) 7 NWLR (Pt. 1247) 423; Sa’eed v. Yakowa (2013) 7 NWLR (Pt. 1352) 133; Daniel v. INEC (2015) 9 NWLR (Pt. 1463) 113; SPDCN Ltd. v. Agbara (2016) 2 NWLR (Pt. 1496) 353; Agbaje v. INEC (2016) 4 NWLR (Pt. 1501) 151; Allanah v. Kpolokwu (2016) 6 NWLR (Pt. 1057) 1; Umanah (Jnr.) v. NDIC (2016) 14 NWLR (Pt. 1533) 458; Esuwoye v. Bosere (2007) 1 NWLR (Pt. 1546) 256; Achonu v. Okuwobi (2017) 14 NWLR (Pt. 1584) 142. PER OBANDE FESTUS OGBUINYA, J.C.A.

INTERPRETATION OF THE SECTION 24(2) OF THE COURT OF APPEAL ACT, CAP. C36, LFN, 2004 REGARDING WHEN AN APPEAL AGAINST AN INTERLOCUTORY DECISION MUST BE FILED

Now, the gravamen of the objector’s chief grievance, indeed its trump card on the terminal issue, is that the appellants’ appeal against the lower Court’s interlocutory decision was in violation of the time allowed by law. It staked its objection on the provision of Section 24(2) of the Court of Appeal Act, Cap. C36, LFN, 2004. Being the cynosure of the issue, it is imperative to pluck it out, from where it is domiciled in the statute book, ipsissimaverba, as follows: (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; (b) in an appeal in a criminal cause or matter, ninety days from the date of the decision appealed against. The provision does not harbour any ambiguity. On this score, the law compels the Court to accord it its ordinary grammatical meanings without any interpolation, seeBakare v. NRC (2007) 17 NWLR (Pt. 1064) 606;PDP v. Okorocha (2012) 15 NWLR (Pt. 1323) 205; Kawawu v. PDP (2017) 3 NWLR (Pt. 1553) 420; Setraco (Nig) Ltd. v. Kpaji(2017) 5 NWLR (Pt. 1558) 280; Adeokin Records v. MCSCN (2018) NWLR (Pt. 1643); Ecobank v Honeywell Flour (2019) NWLR (Pt. 1655) 55. The provision has fallen for interpretation and the case-law has recognised it in a galaxy of authorities, see Kakih v. PDP(2014) 15 NWLR (Pt. 1430) 374; Assams v. Ararume (2016) 1 NWLR (Pt. 1493) 368; BB Apugo & Sons Ltd. v. O.H.M.B. (2016) 13 NWLR (Pt. 1529) 206; Ngige v. Disu (2017) 16 NWLR (Pt. 1590) 1;Ugo v. Ugo (2017) 18 NWLR (Pt. 1597) 218; Fapohunda v. R.C.C.N. Ltd. (2019) 3 NWLR (Pt. 1658) 163; Dankofa v. FRN(2019) 9 NWLR (Pt. 1678) 468;C.G.G. (Nig.) Ltd. v. Eronini (2019) 14 NWLR (Pt. 1692) 219. The foremost/premier point to determine is the nature of the lower Court’s decision being appealed against, id est, whether it is interlocutory or final decision. For a long time, it has been a thorny exercise for the Courts to determine whether a decision of a Court is final or interlocutory. In this wise, two tests, propounded in the English Courts, had competed for the attention of the Nigerian Courts. The first one is the nature of the proceedings test invented by Fry. L.J. in the case of Salaman v. Warner (1891) 1 QB 734 at 736. The other is the nature of the order test evolved by Lord Alverstone, C.J. in the case of Bozson v. Altrincham Urban District Council (1963) 1 KB 547 at 548 – 549, wherein, the law Lord stated. It seems to me that the real test for determining this question ought to be this. Does the judgment or order as made, finally dispose of the rights of the parties? If it does, then I think it ought to be treated as a final order, but if it does not, it is then, in my opinion, an interlocutory order. The Nigerian Courts have accepted and followed the later test, id est, that where an order made by a Court finally determines the rights of the parties to an action, then it is final and where it does not, it is interlocutory, seeIgunbor v. Afolabi (2001) 11 NWLR (Pt. 723) 148; Ogolo v. Ogolo (2006) 5 NWLR (Pt. 1112) 113; Owoh v. Asuk (2008) 16 NWLR (Pt. 1112) 173; Gomez v. C. & S.S. (2009) 10 NWLR (Pt. 1149) 223; General Electric Co. v. Akande (2010) 18 (Pt. 1225) NWLR 596; N.A.O.C. Ltd v. Nkweke(2016) 7 NWLR (Pt. 1512) 588;Ngige v. Disu (2017) 16 NWLR (Pt. 1590) 1; C.G.G. (Nig.) Ltd. v. Odurusam (2017) 17 NWLR (Pt. 1595) 476; Ugo v. Ugo (2017) 18 NWLR (Pt. 1597) 218; Boko v. Nungwa (2019) 1 NWLR (Pt. 1654) 395;Fapohunda v. R.C.C.N. Ltd. (2019) 3 NWLR (Pt. 1658) 163. The lower Court’s order, which parented the appeal, is wrapped in page 364 of the record. Since it is pivotal to the stubborn point, it is germane to extract it out, verbatim ac literatim, thus: Accordingly, parties are directed to maintain the status quo ante bellum pending the determination of the notice of preliminary objection filed by the 1st and 2nd defendants and the motion for interlocutory injunction filed by the claimant on the subject matter of this suit. It cannot be gainsaid that the lower Court’s declaration is a classic exemplification of an order. An order denotes “a mandate; precept; command or direction authoritatively given, rule or regulation, direction of a Court or Judge made or entered in writing and not included in a judgment”, see Maideribe v. FRN (2014) 5 NWLR (Pt. 1399) 68 at 91 per Mohammed, J.S.C., (later CJN). An order falls within the wide perimeter of a Court decision. A decision of a Court means “in relation to a Court, any determination of that Court and includes judgment, decrees, order conviction, sentence or recommendation”, see Section 318 of the Constitution, as amended, Yusuf v. Obasanjo (2003) 15 NWLR (Pt. 843) 293, Kubor v. Dickson (2013) 4 NWLR (Pt. 1345) 534, Omisore v. Aregbesola (supra); CPC v. INEC (2012) 13 NWLR (Pt. 1317) 260; Madurere v. Okwara (2013) 12 NWLR (Pt. 1368) 303; Salik v. Idris (2014) 15 NWLR (Pt. 1429) 36; Otti v. Ogah (2017) 7 NWLR (Pt. 1563); FRN v. Atuche (2019) 8 NWLR (Pt. 1674) 338. Interlocutory connotes an occurrence/happening which is provisional, temporary, interim and not a final resolution of the whole controversy. It intervenes between the commencement and the end of the suit, seeN.A.O.C Ltd v. Nkweke (2016) 7 NWLR (Pt. 1512) 588; Agwu v. Julius Berger (Nig) Plc (2019) 11 NWLR (Pt. 1682) 165; C.G.C. (Nig.) Ltd. v. Eronini (2019) 14 NWLR (Pt. 1692) 219. It is decipherable from the phraseology and tenor of the order, that it is a quintessence of an interlocutory decision. It has, propriovigore, consigned the appellants’ notice of preliminary objection and the first respondent’s application for interlocutory injunction into the province of abeyance while its operation/effervescence lasts throughout the period of their pendency in the suit. The order itself, amply and clearly, disclosed that the feuding parties will return to the lower Court to have their applications determined one way or the other. Put simply and differently, the order, to all intents and purposes, never disposed/terminated the rights of the parties in the suit before the lower Court. The lower Court had not become functus officio on the footing of the order to maintain status quo ante bellum by the contending parties. The parties, must, as a matter of legal command, return to the lower Court to ventilate their pending applications and harness their rights in the main suit if need be. I have, in due loyalty to the expectation of the law, married the interlocutory order with the provision of Section 24 (2) (a) of the Court of Appeal Act which is displayed at the cradle of this consideration. The raison d’eter for the juxtaposition is plain. It is to discover if the appeal flouted or respect the provision vis-a-vis the time prescribed to filing it. By virtue of the provision of Section 15 (2) (a) of the Interpretation Act, Cap I 23, LFN, 2004, where a period is reckoned from a particular event, the day on which the event occurred/happened would be excluded. The provision has received the imprimatur of the case-law, see Akeredolu v. Akinremi (1985) 2 NWLR (Pt. 10) 787; Ezeigwe v. Nwawulu (2010) 4 NWLR (Pt. 1183) 159; Etsako West, L.G.C. v. Christopher (2014) 14 NWLR (Pt. 1426) 73;Petgas Resources Ltd. V. Mbanefo (2018) 1 NWLR (Pt. 1601) 442. PER OBANDE FESTUS OGBUINYA, J.C.A.

ATTITUDE OF THE APPELLATE COURT REGARDING WHERE AN INTENDING APPELLANT RUNS OUT OF TIME IN APPEALING AGAINST AN INTERLOCUTORY DECISION OF THE LOWER COURTS

It is trite elementary law that where an intending appellant runs out of time in appealing against an interlocutory decision of any of the Courts subordinate to this Court, the law grants him the unbridled licence to seek for an enlargement of that time from the Court by dint of an application which usually warehouses trinity prayers. The Court, in such application for an extension of time, always favours him with an indulgence of extension of time, see Malari v. Leigh (2019) 3 NWLR (Pt. 1659) 332; C.G.G (Nig.) Ltd. V. Eronini (2019) 14 NWLR (Pt. 1692) 219. PER OBANDE FESTUS OGBUINYA, J.C.A.

WHAT DISCRETION OF COURT ENTAILS

In the eyes of the law, discretion signifies: the right or power of a Judex to act according to the dictates of his personal judgment and conscience uninfluenced by the judgment or conscience of other persons, see Suleiman v. C.O.P., Plateau State (2008) 8 NWLR (Pt. 1089) 298, Ajuwa v. S.P.D.C.N. Ltd. (2011) 18 NWLR (Pt. 1279) 797; NJC v. Dakwang (2019) 7 NWLR (Pt. 1672) 532; Nzekwe v. Anaekwenegbu (2019) 8 NWLR (Pt. 1674) 235; Adeniyi v. Tina George Ind. Ltd. (2019) 16 NWLR (Pt. 1699) 560; Akinyemi v. Odu’a Inv. Co. Ltd.(2012) NWLR (Pt. 1329) 209. PER OBANDE FESTUS OGBUINYA, J.C.A.

NATURE OF A GROUND OF APPEAL THAT CHALLENGES AN INTERLOCUTORY DECISION OF A LOWER COURT WHICH IS ANCHORED ON EXERCISE OF DISCRETION

In the mind of the law, where a ground of appeal quarrels with an interlocutory decision of a lower Court which is anchored on exercise of discretion, then it is not a ground of law, but, at best, a ground of mixed law and fact, see Williams v. Mokwe (2005) 14 NWLR (Pt. 945) 249; FBN Plc v. Abraham (2008) 18 NWLR (Pt. 1118) 172; Garuba v. Omokhodion (2011) 15 NWLR (Pt. 1267) 145; Destra Inv. Ltd. V. FRN (2018) 8 NWLR (Pt. 1621) 335; Honeywell Flour Mills Plc v. Ecobank (Nig.) Ltd. (2019) 2 NWLR (Pt. 1655) 35; Chief of Air Staff v. Edward (2019) 14 NWLR (Pt. 1691) 183; Bestman v. Whyte (2020) 6 NWLR (Pt. 1719) 136. PER OBANDE FESTUS OGBUINYA, J.C.A.

POSITION OF THE LAW ON THE RIGHT OF APPEAL OF PARTIES

It is settled rudimentary law, beyond any peradventure of doubt, that right of appeal is statutory-donated to citizens by the Constitution and other Legislation, see Garuba v. Omokhodion (supra). The Constitution, as amended, the fons et origo of our laws, creates categories of rights of appeal from the trial superior Courts of record to the Court of Appeal. While Section 241 of the Constitution, as amended, consecrates appeal as of a right from trial superior Courts of record to the Court of Appeal, Section 242 thereof ordains rights of appeal with the leave of those Courts or Court of Appeal, see Tukur v. Govt., of Gongola State (1988) 1 NWLR (Pt. 68) 39; FRN v. Dairo (2015) 6 NWLR (Pt. 1454) 141; Kakih v. PDP (2014) 15 NWLR (Pt. 1430) 374; Ugo v. Ugo (2017) 18 NWLR (Pt. 1597) 218; Shittu v. P.A.N. Ltd. (2018) 15 NWLR (Pt. 1642) 195; Boko v. Nungwa (2019) 1 NWLR (Pt. 1654) 395; Dankofa v. FRN (2019) 9 NWLR (Pt. 1678) 468. PER OBANDE FESTUS OGBUINYA, J.C.A.

MEANING OF STATUS QUO ANTE BELLUM

The term, status quo ante bellum, means the state/situation of things/affairs that existed before the something else, the case/controversy, occurred, see Akapo v. Hakeem-Habeeb (1992) 6 NWLR (Pt. 247); Falomo v. Banigbe (1998) 6 SC 141 (1998) 6 SCNJ 42; Oronti v. Onigbanjo (2012) 12 NWLR (Pt. 1313) 23. It is a commonplace expression in the firmament of injunction. To my mind, the status quo order, wears/bears all the hallmarks of a preservatory order: an order intended to conserve the subject matter from dissipation until the determination of the suit. In other words, a preservatory order oxygenates the res in a suit and puts it in the incubation throughout the gestation period of a matter. A preservative order lubricates and enlivens the res so that a Court is not confronted with a state of complete helplessness nor its order rendered nugatory at the end of the proceedings. It prevents the Court from being foisted with a fait accompli which will diminish its integrity and sanctity and expose it to vain order. It is a Court’s armor of integrity that is domiciled in its inherent power. PER OBANDE FESTUS OGBUINYA, J.C.A.

WHAT IS A NOTICE OF APPEAL

A notice of appeal, usually located in the twilight of most records of appeals, is an originating process that initiates an appeal. It is the appellate version of originating process through which actions are commenced in Courts of first instance. It has been described as the nucleus, substratum, bedrock, foundation and spinal cord of every appeal. It is sine qua non for the existence of an appeal in that it gives birth to the later. Thus, it occupies a kingly position in the appellate adjudication. Given this Olympian status, where a notice of appeal is defective, for whatever reason, it contaminates the competence of an appeal, which it ought to breathe life into, and, de jure, impinges on the jurisdiction of the Court, see Agu v. Odofin (1992) 3 SCNJ 161; Adelekan v. Ecu-Line NV (2006) 2 NWLR (Pt. 993) 33; Okolo v. UBN Ltd. (2004) 3 NWLR (Pt. 859) 87; Ikweki v. Ebele (2005) 11 NWLR (Pt. 936) 397; Aderibigbe v. Abidoye (2009) 10 NWLR (Pt. 1150) 592; Odunze v. Nwosu (2007) 13 NWLR (Pt. 105) 1; Akpan v. Bob (2010) 17 NWLR (Pt. 1223) 421; General Electric Co. v. Akande (2010) 18 NWLR (Pt. 1225) 596; FRN v. Dairo (2015) 6 NWLR (Pt. 1454) 141; Ikechukwu v. FRN (2015) 7 NWLR (Pt. 1457) 1; Ikuepenikan v. State (2016) 9 NWLR (Pt. 1465) 518; Allanah v. Kpolokwu (2016) 6 NWLR (Pt. 1509) 1; Japhet v. State (2016) 6 NWLR (Pt. 1509) 602; SPDCN Ltd. v. Sam Royal Hotel (Nig.) Ltd. (2016) 9 NWLR (Pt. 1516) 126; Fasuyi v. PDP (supra); FRN v. Dairo (supra); SPDCN Ltd. v. Agbara (2016) 2 NWLR (Pt. 1496) 353; Agwu v. Julius Berger (Nig.) Plc (2019) 11 NWLR (Pt. 1682) 105. PER OBANDE FESTUS OGBUINYA, J.C.A.

MEANING OF JURISDICTION

Jurisdiction, a mantra in adjudication, connotes the authority/power of a Court to determine a dispute submitted to it by contending parties in any proceeding, see Ajamole v. Yaduat (No. 1) (1991) 5 SCNJ 172; Mobil Pro. Co. Untltd. v. LASEPA (2002) 18 NWLR (Pt. 798) 1; Ndaeyo v. Ogunaya (1977) 1 IM SLR 300; Ebhodaghe v. Okoye (2004) 18 NWLR (Pt. 905) 472; Garba v. Mohammed (2016) 16 NWLR (Pt. 1537) 144; A.-G., Kwara State v. Adeyemo (2017)1 NWLR (Pt. 1546) 210; Isah v. INEC (2016) 18 NWLR (Pt. 1544) 175; Angadi v. PDP (2018) 15 NWLR (Pt. 1641) 1; Nduul v. Wayo (2018) 16 NWLR (Pt. 1646) 548. PER OBANDE FESTUS OGBUINYA, J.C.A.

WHEN IS A COURT OF LAW INVESTED WITH JURISDICTION

A Court of law is invested with jurisdiction to hear a matter when: “1. it is properly constituted as regards numbers and qualifications of members of the bench, and no member is disqualified for one reason or another; and 2. the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and 3. the case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction”, see Madukolu v. Nkemdilim (2006) 2 LC 2081961) NSCC (vol. 2) 374 at 379,per Bairamian F. J., Tukur v. Taraba State (1997) 6 SCNJ 81; Dairo v. UBN (2007) 16 NWLR (Pt. 1059) Okereke v. Yar’Adua (2008) 12 NWLR (Pt. 1100); Saraki v. FRN (2016) 3 NWLR (Pt. 1500) 531; Oni v. Cadbury Nig. Plc. (2016) 9 NWLR (Pt. 1516) 80; Diamond Bank Ltd. v. Ugochukwu (2016) 9 NWLR (Pt. 1517) 193; Okpe v. Fan Milk Plc. (2017) 2 NWLR (Pt. 1549) 282; Bello v. Damisa (2017) 2 NWLR (Pt. 1550) 455; Osi v. Accord Party (2017) 3 NWLR (Pt. 1553) 387; Nworika v. Ononeze-Madu (2019) 7 NWLR (Pt. 1672) 422; Adeleke v. Oyetola (2020) 6 NWLR (Pt. 1721) 440. The three ingredients must co-exist in order to infuse jurisdiction into a Court. PER OBANDE FESTUS OGBUINYA, J.C.A.

WHAT IS A CONDITION PRECEDENT

In the eyes of the law, a condition precedent is: “the one that delays the vesting of a right until the happening of an event”, see Atolagbe v. Awuni (1997) 9 NWLR (Pt. 525) 537 at 562, per Uwais, CJN; Niger Care Dev. co. Ltd. v. ASWB (2008) 9 NWLR (Pt. 1093) 493; A.-G., Kwara State v. Adeyemo (2017) 1 NWLR (Pt. 1546) 210; Jombo United Co. Ltd. v. Leadway Ass. co. Ltd. (2016) 15 NWLR (Pt. 1536) 439. PER OBANDE FESTUS OGBUINYA, J.C.A.

POSITION OF THE LAW WHERE A PROCEEDING IS CONDUCTED IN THE ABSENCE OF THE JURISDICTION TO ENTERTAIN SAME

Where a Court is drained of the jurisdiction to entertain a matter, the proceeding germinating from it, no matter the quantum of diligence, dexterity, artistry, sophistry, transparency and objectivity injected into it, will be trapped in the intractable web of nullity, see Elugbe v. Omokhafe (2004) 18 NWLR (Pt. 905) 319; Lokpobiri v. Ogola (2016) 3 NWLR (Pt. 1499) 328; Garba v. Mohammed (supra); Isah v. INEC (supra). PER OBANDE FESTUS OGBUINYA, J.C.A.

OBANDE FESTUS OGBUINYA, J.C.A. (Delivering the Leading Judgment): This appeal interrogates the correctness of the decision (ruling) of the High Court of Lagos State, Lagos Division (hereinafter addressed as “the lower Court”), coramjudice, O. O. Femi-Adeniyi, J., in suit No. LD/3577CMW/2018, delivered on 23rd July, 2018. Before the lower Court, the appellants, the second and the third respondents were the defendants while the first respondent was the claimant.

The facts of the case, which transmuted into the appeal are amenable to brevity and simplicity. On or about 25th August, 2006, the first respondent acquired a large tract of land along Epe Coastal Road, Ibeju-Lekki, Lagos whereon it built a world-class Lekki Beach Golf Resorts. The first respondent alleged that its plan to commence operation of the Golf was jeopardized as a result of the appellants’ construction of a permanent jetty/RORO terminal close to it. It further alleged that the appellants failed to obtain the environmental Impact Assessment for the surrounding environment and approval from the appropriate authority/agency for the construction. The appellants’ negligent dredging of the

Atlantic Ocean. In the construction, led to massive beach erosions and degradation of the Golf premises which caused the first respondent colossal losses. The appellants, also, forcefully entered into the Golf premises. Attempts to have the dispute between them amicably settled failed. Sequel to that, the first respondent beseeched the lower Court, via a writ of summons filed on 16th April, 2018, and tabled against the appellants, the second and third respondents certain declaratory reliefs, order for special and general damages and injunctive relief. The first respondent, on that same 16th April, 2018, filed an application for an interlocutory injunction against the appellants restraining them from their unlawful acts.

In reaction, the appellants filed a notice of preliminary objection, on 14th June, 2018, challenging the jurisdiction of the lower Court to entertain the matter. When the matter came up on 25th June, 2018, His Lordship, L. A. F. Oluyemi, J., adjudged the appellants’ preliminary objection and the first respondent’s application for interlocutory injunction to 23rd July, 2018 to be heard by the vacation Judge. When the suit came

up on 23rd July, 2018, before the lower Court, presided over by Hon. Justice O. O. Femi-Adeniyi, His Lordship directed parties to maintain status quo ante bellum pending the determination of the appellants’ notice of preliminary objection and the first respondent’s application for interlocutory injunction.

The appellants were dissatisfied by the decision. Hence, on 10th August, 2018, they lodged a 3-ground notice of appeal, copied at pages 366 – 368 of the record, wherein he prayed this Court for:
i. An order of the Court allowing the appeal and setting aside the Ruling of the trial Court and substituting therefor an order that the Court should determine the jurisdictional challenge first and separately, before embarking on the hearing and determination of the application for interlocutory injunction.
ii. Such further or other orders as the Court may deem fit to make.

Thereafter, the parties, through their counsel, filed and exchanged their respectful briefs of argument in line with the procedure for hearing civil appeals in this Court. The appeal was heard on 11th January, 2021.

During its hearing, learned appellants’ counsel, O. S. Sowemimo, SAN, adopted the appellants’ brief of argument, filed on 8th November, 2018, and the appellants’ reply brief, filed on 6th January, 2021, as representing his arguments for the appeal. He urged the Court to allow it. Similarly, learned counsel for the first respondent, Adeleke Adepoju, Esq., adopted the first respondent’s brief of argument, filed on 3rd May, 2019, as forming his reactions against the appeal. He urged the Court to dismiss it. The second and third respondents were, duly, served but they filed no brief of argument.

First respondent’s preliminary objection.
The first respondent greeted the appeal with a notice of preliminary objection filed on 3rd May, 2019, which prated this Court as follows:
1. AN ORDER of this Honourable Court declining jurisdiction to entertain the Appeal and striking out same on the grounds that:
(a) No enlargement of time was sought from this Honourable Court by the Appellants before filing the Appeal against the Interlocutory decision of the lower Court despite filing same outside the statutory period.
(b) No leave of either the

lower Court or this Honourable Court was sought by the Appellant before appealing against the Interlocutory decision of the lower Court.
(c) The Appellants failed to state the Grounds of Appeal from which the sole issue for determination in their Brief of Arguments was distilled from.
2. AND FOR SUCH FURTHER OR OTHER ORDERS as this Honourable Court may consider necessary or fit to make in the circumstance of this Preliminary Objection.

Grounds of Preliminary Objection
I. The lower Court made a status quo order on 23rd July, 2013. Dissatisfied with the order, the Appellants filed their Notice of Appeal on 10th August, 2018.
II. By Section 24 of the Court of Appeal Act, the Appellants had 14 days within which to file their Notice of Appeal. The Appellants’ Notice of Appeal was however filed 18 days after the status quo order was made without filing an application for enlargement of time.
III. By Section 14 of the Court of Appeal Act, the leave of the lower Court or this Honourable Court must be sought in an Appeal against an Interlocutory decision. No such leave was sought by the Appellant before filing the instant

Appeal.
IV. The Appellants failed to state the grounds of Appeal from which their sole issue for determination was distilled from in their Brief of Arguments.

Learned counsel for the first respondent (objector), Adeleke Adepoju, Esq., incorporated the arguments for the objection of the first respondent’s brief of argument filed on 3rd May, 2019. Learned counsel distilled two issues for determination for the objection to wit:
i. Considering the fact that no leave and enlargement of time to file the instant Appeal was sought by Appellants, whether the Appeal is competent?
ii. Given the Appellants’ failure to state under which ground of appeal the sole issue for determination in their Brief of Argument is distilled from, whether the Appeal is competent?
A close look at the issues shows that issue one is significant to determine the objection. I will therefore, decide it on the basis of it.

Arguments on the issues:
Learned counsel for the first respondent, Adeleke Adepoju, Esq. submitted that the appeal against interlocutory decision of the lower Court was filed outside the 14 days without an extension of time which made the appeal incompetent. He relied on Section 24 of the Court of Appeal Act, Cap C36, Laws of the Federation of Nigeria, LFN 2004;

Onyema v. Ezeiruka (2018) LPELR – 45018 (CA). He posited that the appellants failed to seek leave of Court before filing the appeal against an interlocutory decision of the lower Court which rendered it incompetent. He cited Section 14(1) of the Court of Appeal Act, Ekemezie v. Ifeanacho (2019) LPELR – 46518 (SC). He asserted that the decision of the lower Court was an exercise of discretion involving mixed law and facts which required leave of Court before filing the appeal and the same rendered it incompetent by the failure to obtain leave. He referred to Saraki v. Kotoye (1990) LPELR – 15503 (SC); Roper v. Iman (2016) LPELR – 41571 (CA).

On behalf of the appellants’ learned counsel, O. S. Sowemimo, SAN, contended that the lower Court’s order/decision, which was void, involved jurisdiction and time would not run out to terminate the appeal. He relied on Kpema v. State (1986) 1 NSCC 212; R. Lauvwers Import-Export v. Jozenbson Industries Co. Ltd. (1988) 7 SC (Pt. III) 266. He reasoned that the appellants needed not to seek leave as the appeal was based on issue of jurisdiction. He cited British Airways v. Amadi (2012) 2 NWLR (Pt.

1283) 21; SPDC Nig. Ltd. v. Adamkue (2003) 11 NWLR (Pt. 832) 533; Unilag v. Adeniran (2007) 6 NWLR (Pt. 1031) 498; Dapianlong v. Dariye (2007) 8 NWLR (Pt. 1036) 332; International Offshore Construction Ltd. v. Shoreline Lifeboat Nig. Ltd. (2003) 16 NWLR (Pt. 845) 157. He maintained that the lower Court’s order involved application of Chapter IV of the Constitution, as amended, and grant or refusal of injunction which border on appeal as of right. He cited Section 241 (1) (d), (f) and (h) of the Constitution, as amended.

Resolution of the preliminary objection.
A preliminary objection is a specie of objection which, if sustained by a Court, will render further proceedings in a matter unnecessary, see Abe v. Unilorin (2013) 16 NWLR (Pt. 1379) 183; APC v. INEC (2015) 8 NWLR (Pt. 1462) 531; Jim-Jaja v. C.P., Rivers State (2013) 6 NWLR (Pt. 1350) 225. For this reason, the law commands the Court to deal first with a preliminary objection when raised in any proceedings, see Uwazurike v. A.-G., Fed. (2007) 8 NWLR (Pt. 1035)1; B.A.S.F. (Nig.) Ltd v. Faith Enterprises Ltd. (2010) 4 NWLR (Pt. 1183) 104; SPDCN Ltd v Amadi (2011)14 NWLR

(Pt. 1266) 157; FBN Plc v. T.S.A. ind. Ltd (2010) 15 NWLR (Pt. 1216) 247; Okereke v. James (2012) 16 NWLR (Pt. 1326) 339; APC v. INEC (Supra); Ogboru v. Uduaghan (2013) 1 NWLR (Pt. 1311) 357; Efet v. INEC (2011) 7 NWLR (Pt. 1247) 423; Sa’eed v. Yakowa (2013) 7 NWLR (Pt. 1352) 133; Daniel v. INEC (2015) 9 NWLR (Pt. 1463) 113; SPDCN Ltd. v. Agbara (2016) 2 NWLR (Pt. 1496) 353; Agbaje v. INEC (2016) 4 NWLR (Pt. 1501) 151; Allanah v. Kpolokwu (2016) 6 NWLR (Pt. 1057) 1; Umanah (Jnr.) v. NDIC (2016) 14 NWLR (Pt. 1533) 458; Esuwoye v. Bosere (2007) 1 NWLR (Pt. 1546) 256; Achonu v. Okuwobi (2017) 14 NWLR (Pt. 1584) 142. I will obey this legal commandment so as not to insult the law. The first respondent (objector) seeks to terminate the appeal in limine on four vitriolic grounds catalogued earlier on.

cynosure of the issue, it is imperative to pluck it out, from where it is domiciled in the statute book, ipsissimaverba, as follows:
(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;
(b) in an appeal in a criminal cause or matter, ninety days from the date of the decision appealed against.
The provision does not harbour any ambiguity. On this score, the law compels the Court to accord it its ordinary grammatical meanings without any interpolation, seeBakare v. NRC (2007) 17 NWLR (Pt. 1064) 606;PDP v. Okorocha (2012) 15 NWLR (Pt. 1323) 205; Kawawu v. PDP (2017) 3 NWLR (Pt. 1553) 420; Setraco (Nig) Ltd. v. Kpaji(2017) 5 NWLR (Pt. 1558) 280; Adeokin Records v. MCSCN (2018) NWLR (Pt. 1643); Ecobank v Honeywell Flour (2019) NWLR (Pt. 1655) 55. The provision has fallen for interpretation and the case-law has recognised it in a galaxy of authorities, see Kakih v. PDP(2014) 15 NWLR (Pt. 1430) 374; Assams v. Ararume

(2016) 1 NWLR (Pt. 1493) 368; BB Apugo & Sons Ltd. v. O.H.M.B. (2016) 13 NWLR (Pt. 1529) 206; Ngige v. Disu (2017) 16 NWLR (Pt. 1590) 1;Ugo v. Ugo (2017) 18 NWLR (Pt. 1597) 218; Fapohunda v. R.C.C.N. Ltd. (2019) 3 NWLR (Pt. 1658) 163; Dankofa v. FRN(2019) 9 NWLR (Pt. 1678) 468;C.G.G. (Nig.) Ltd. v. Eronini (2019) 14 NWLR (Pt. 1692) 219.

The foremost/premier point to determine is the nature of the lower Court’s decision being appealed against, id est, whether it is interlocutory or final decision. For a long time, it has been a thorny exercise for the Courts to determine whether a decision of a Court is final or interlocutory. In this wise, two tests, propounded in the English Courts, had competed for the attention of the Nigerian Courts. The first one is the nature of the proceedings test invented by Fry. L.J. in the case of Salaman v. Warner (1891) 1 QB 734 at 736. The other is the nature of the order test evolved by Lord Alverstone, C.J. in the case of Bozson v. Altrincham Urban District Council (1963) 1 KB 547 at 548 – 549, wherein, the law Lord stated.
It seems to me that the real test for determining this question ought to be this.

Does the judgment or order as made, finally dispose of the rights of the parties? If it does, then I think it ought to be treated as a final order, but if it does not, it is then, in my opinion, an interlocutory order.
The Nigerian Courts have accepted and followed the later test, id est, that where an order made by a Court finally determines the rights of the parties to an action, then it is final and where it does not, it is interlocutory, seeIgunbor v. Afolabi (2001) 11 NWLR (Pt. 723) 148; Ogolo v. Ogolo (2006) 5 NWLR (Pt. 1112) 113; Owoh v. Asuk (2008) 16 NWLR (Pt. 1112) 173; Gomez v. C. & S.S. (2009) 10 NWLR (Pt. 1149) 223; General Electric Co. v. Akande (2010) 18 (Pt. 1225) NWLR 596; N.A.O.C. Ltd v. Nkweke(2016) 7 NWLR (Pt. 1512) 588;Ngige v. Disu (2017) 16 NWLR (Pt. 1590) 1; C.G.G. (Nig.) Ltd. v. Odurusam (2017) 17 NWLR (Pt. 1595) 476; Ugo v. Ugo (2017) 18 NWLR (Pt. 1597) 218; Boko v. Nungwa (2019) 1 NWLR (Pt. 1654) 395;Fapohunda v. R.C.C.N. Ltd. (2019) 3 NWLR (Pt. 1658) 163.

The lower Court’s order, which parented the appeal, is wrapped in page 364 of the record. Since it is pivotal to the stubborn point, it is germane to

extract it out, verbatim ac literatim, thus:
Accordingly, parties are directed to maintain the status quo ante bellum pending the determination of the notice of preliminary objection filed by the 1st and 2nd defendants and the motion for interlocutory injunction filed by the claimant on the subject matter of this suit.

It cannot be gainsaid that the lower Court’s declaration is a classic exemplification of an order. An order denotes “a mandate; precept; command or direction authoritatively given, rule or regulation, direction of a Court or Judge made or entered in writing and not included in a judgment”, see Maideribe v. FRN (2014) 5 NWLR (Pt. 1399) 68 at 91 per Mohammed, J.S.C., (later CJN). An order falls within the wide perimeter of a Court decision.

A decision of a Court means “in relation to a Court, any determination of that Court and includes judgment, decrees, order conviction, sentence or recommendation”, see Section 318 of the Constitution, as amended, Yusuf v. Obasanjo (2003) 15 NWLR (Pt. 843) 293, Kubor v. Dickson (2013) 4 NWLR (Pt. 1345) 534, Omisore v. Aregbesola (supra); CPC v. INEC (2012) 13

NWLR (Pt. 1317) 260; Madurere v. Okwara (2013) 12 NWLR (Pt. 1368) 303; Salik v. Idris (2014) 15 NWLR (Pt. 1429) 36; Otti v. Ogah (2017) 7 NWLR (Pt. 1563); FRN v. Atuche (2019) 8 NWLR (Pt. 1674) 338.

Interlocutory connotes an occurrence/happening which is provisional, temporary, interim and not a final resolution of the whole controversy. It intervenes between the commencement and the end of the suit, seeN.A.O.C Ltd v. Nkweke (2016) 7 NWLR (Pt. 1512) 588; Agwu v. Julius Berger (Nig) Plc (2019) 11 NWLR (Pt. 1682) 165; C.G.C. (Nig.) Ltd. v. Eronini (2019) 14 NWLR (Pt. 1692) 219.

It is decipherable from the phraseology and tenor of the order, that it is a quintessence of an interlocutory decision. It has, propriovigore, consigned the appellants’ notice of preliminary objection and the first respondent’s application for interlocutory injunction into the province of abeyance while its operation/effervescence lasts throughout the period of their pendency in the suit. The order itself, amply and clearly, disclosed that the feuding parties will return to the lower Court to have their applications determined one way or the other. Put simply and differently, the order, to all intents and purposes, never disposed/terminated the rights of the parties in the suit before the lower Court. The lower Court had not become functus officio on the footing of the order to maintain status quo ante bellum by the contending parties. The parties, must, as a matter of legal command, return to the lower Court to ventilate their pending applications and harness their rights in the main suit if need be.

I have, in due loyalty to the expectation of the law, married the interlocutory order with the provision of Section 24 (2) (a) of the Court of Appeal Act which is displayed at the cradle of this consideration. The raison d’eter for the juxtaposition is plain. It is to discover if the appeal flouted or respect the provision vis-a-vis the time prescribed to filing it. By virtue of the provision of Section 15 (2) (a) of the Interpretation Act, Cap I 23, LFN, 2004, where a period is reckoned from a particular event, the day on which the event occurred/happened would be excluded. The provision has received the imprimatur of the case-law, see Akeredolu v. Akinremi (1985) 2 NWLR (Pt. 10) 787; Ezeigwe v. Nwawulu (2010) 4 NWLR (Pt. 1183) 159; Etsako West, L.G.C. v. Christopher (2014) 14 NWLR (Pt. 1426) 73;Petgas Resources Ltd. V. Mbanefo (2018) 1 NWLR (Pt. 1601) 442.
As discernible from the record, the touchstone of the appeal, the order was made on 23rd July, 2018. In total fidelity to the above provision, the 23rd July, 2018, the birthday of the order has to be excluded from the fourteen (14) days

ordained in Section 24 (2) (a) of the Court of Appeal Act. The appellants’ notice of appeal, which colonises pages 365-368 of the record, was filed on 10th August, 2018 as manifest therefrom. I have, in keeping with the commandment of the law, situated the two dates: the 24th July, 2018, when the appellants’ right of appeal of ripened, and the 10th August, 2018, when they approached this Court. It is a common knowledge that Nigeria is a user of the Gregorian calendar — a calendar of general application. By the Gregorian calendar computation, from 24th July, 2018 to 10th August, 2018 is a period of eighteen (18) days indisputably, the period of eighteen (18) days is far in excess of the fourteen (14) days time-frame decreed by the sacred provision of Section 24 (a) of the Court of Appeal Act for appealing against an interlocutory decision of the lower Court. In other words, the appellants’ notice of appeal was filed in flagrant defilement of then limitation period in the provision of Section 24 (2) (a) of the Court of Appeal Act. I am, therefore, compelled by law to hold that the first respondent’s right

of appeal against the interlocutory order, which matured on 24th July, 2018, had become stale/soured before it was ignited on 10th August, 2018. Alas, their right of appeal against the interlocutory decision does not enure to them ad infinitium as it must be exercised within the perimeter of the time bracket donated to them by Section 24 (2) (a) of the Court of Appeal Act.

by effluxion of time. The failure is a costly one as it inflicts caustic consequences on their appeal. The notice of appeal, which was filed beyond the period, fourteen (14) days, allocated to them by the provision of Section 24 (2) (a) of the Court of Appeal Act, was infested and mired in the nest of incompetence.

It admits of no argument that the lower Court’s interlocutory order, to maintain status quo ante bellum, was weaved on an exercise of its judicial discretion. In the eyes of the law, discretion signifies: the right or power of a Judex to act according to the dictates of his personal judgment and conscience uninfluenced by the judgment or conscience of other persons, see Suleiman v. C.O.P., Plateau State (2008) 8 NWLR (Pt. 1089) 298, Ajuwa v. S.P.D.C.N. Ltd. (2011) 18 NWLR (Pt. 1279) 797; NJC v. Dakwang (2019) 7 NWLR (Pt. 1672) 532; Nzekwe v. Anaekwenegbu (2019) 8 NWLR (Pt. 1674) 235; Adeniyi v. Tina George Ind. Ltd. (2019) 16 NWLR (Pt. 1699) 560; Akinyemi v. Odu’a Inv. Co. Ltd.(2012) NWLR (Pt. 1329) 209.

The crux of the appellants’ grounds of appeal is submissive to easy appreciation. They probe into the correctness of the lower Court’s exercise of its discretion in dishing out the order of status quo ante bellum. In the mind of the law, where a ground of appeal quarrels with an interlocutory decision of a lower Court which is anchored on exercise of discretion, then it is not a ground of law, but, at best, a ground of mixed law and fact, see Williams v. Mokwe (2005) 14 NWLR (Pt. 945) 249; FBN Plc v. Abraham (2008) 18 NWLR (Pt. 1118) 172; Garuba v. Omokhodion (2011) 15 NWLR (Pt. 1267) 145; Destra Inv. Ltd. V. FRN (2018) 8 NWLR (Pt. 1621) 335; Honeywell Flour Mills Plc v. Ecobank (Nig.) Ltd. (2019) 2 NWLR (Pt. 1655) 35; Chief of Air Staff v. Edward (2019) 14 NWLR (Pt. 1691) 183; Bestman v. Whyte (2020) 6 NWLR (Pt. 1719) 136.

as of a right from trial superior Courts of record to the Court of Appeal, Section 242 thereof ordains rights of appeal with the leave of those Courts or Court of Appeal, see Tukur v. Govt., of Gongola State (1988) 1 NWLR (Pt. 68) 39; FRN v. Dairo (2015) 6 NWLR (Pt. 1454) 141; Kakih v. PDP (2014) 15 NWLR (Pt. 1430) 374; Ugo v. Ugo (2017) 18 NWLR (Pt. 1597) 218; Shittu v. P.A.N. Ltd. (2018) 15 NWLR (Pt. 1642) 195; Boko v. Nungwa (2019) 1 NWLR (Pt. 1654) 395; Dankofa v. FRN (2019) 9 NWLR (Pt. 1678) 468.

Flowing from the above legal expositions, the lower Court’s decision, which is in the heat of decimation/expunction, falls outside the province of Section 241 (1) (a) of the Constitution, as amended, in that it is not a final decision of the lower Court. Nor are the appellants’ grounds of appeal, which are chastising it, accommodated by Section 241 (1) (b) thereof since they do not involve questions of law alone. Contrariwise, the grounds, as already anatomised, query the lower Court’s interlocutory decision which was, deeply, rooted in exercise of discretion, and ipso facto and de jure, turn on mixed law and fact come within

the four walls Section 242 of the Constitution, as amended. Indubitably, a ground of appeal which questions a decision on mixed law and fact requires leave of the lower or this Court in order to be competent, see Akinyemi v. Odu’a Inv. Co. Ltd. (2012) 17 NWLR (Pt. 1329) 209; A & S.B. Co. (Nig.) Ltd. V. FCMB Ltd. (2013) 10 NWLR (Pt. 1363) 501; Stanbic IBTC Bank Plc v. L.G.C. Ltd. (2017) 18 NWLR (Pt. 1598) 431; Fasuyi v. PDP (2018) 7 NWLR (Pt. 1619) 426; Nikagbate v. Opaye (2018) 9 NWLR (Pt. 1623) 85; Shittu v. P.A.N. Ltd. (supra); Eneh v. NDIC (2018) 6 NWLR (Pt. 1645) 353; Ozomgbachi v. Amadi (2018) 17 NWLR (Pt. 1647) 171; Pali v. Abdu (2019) 5 NWLR (Pt. 1605) 320; Ajaokuta Steel Co. Ltd. V. G.I. & S Ltd. (2019) 8 NWLR (Pt. 1674) 213; Okolonwamu v. Okolonwamu (2019) 9 NWLR (Pt. 1676)1; Chief of Air Staff v. Edward (supra); Bestman v. Whyte (2020) 6 NWLR (Pt. 1719) 136. In the sight of the law, leave, in this context, signifies permission, see S.U. Ojemen v. Momodu (1983) 1 SCNLR 188; Nwadike v. Ibekwe (1987)4 NWLR (Pt. 67) 7181(1987) 2 NSCC, Vol. 18, 1219; Garuba v. Omokhodion (2011) 14 NWLR (Pt. 1269) 145; Otu v. ACB Int’l Ltd. (2008) 3 NWLR (Pt. 1073) 179.

Where leave of Court, trial or appellate, is required for filing an action/process and a party ignores seeking and obtaining the requisite leave before filing same, the action/process is rendered incompetent, see UBA Plc. v. Sogunro (2006) 16 NWLR (Pt. 1006) 504; Garuba v. Omokhodion (supra); Thor Ltd. v. FCMB Ltd. (2002) 4 NWLR (Pt. 757) 427; Ugboaja v. Akitoye-Sowemimo (2008) 16 NWLR (Pt. 1113) 278; Akinyemi v. Odu’a mv. Co. Ltd. (2012) 17 NWLR (Pt. 1329) 209; Okwuagbala v. lkwueme (2010) 19 NWLR (Pt. 1226) 54; Nwaolisah v. Nwabufoh (2011) 14 NWLR (Pt. 1268) 600; Njemanze v. Njemanze (2013) 8 NWLR (Pt. 1356) 376; Imegwu v. Okolocha (2013) 9 NWLR (Pt. 1359) 347; Ugwu v. State (2013) 14 NWLR (Pt. 1374) 257; Ngere V. Okuruket ‘xiv’ (2014) 11 NWLR (Pt. 1417) 147; Ekunola v. CBN (2013) 15 NWLR (Pt. 1377) 224; Allanah v. Kpolokwu (2016) 6 NWLR (Pt. 1507) 1; Anachebe v. Ijeoma (2014) 14 NWLR (Pt. 1426) 168; B.B. Apugo & Sons Ltd. v. O.H.M.B. (2016) 13 NWLR (Pt. 1529) 6; Obasi v Mikson Est. Ind. Ltd. (2016) NWLR (Pt.1539) 335; Otti v Ogah (2017) 7 NWLR (Pt. 1563) 1; Sogunro v Yeku (2017) 9 NWLR (Pt.

1570) 290; Mato v. Hember (2018) 5 NWLR (Pt. 1612) 258. Otu v. ACB Int’l Ltd. (2008) 3 NWLR (Pt. 1073) 179; Fasuyi v. PDP (2018) 7 NWLR (Pt. 1619) 426; Nikagbate v. Opaye(2018) 9 NWLR (Pt. 1623) 85; Okolonwamu v. Okolonwamu (2019) 9 NWLR (Pt. 1676) 1; Garuba v. Omokhodion (supra).
There is no gainsaying the fact that the appellants, on their own volition, starved this Court of any concrete evidence of their procurement of leave of the lower Court or this Court before filing their notice of appeal. Put bluntly, the appellants neither sought for an extension of time to file the notice of appeal out of time nor obtained the permission of this Court to appeal against the lower Court’s interlocutory decision, which was predicated on exercise of judicial discretion, which questioned mixed law and fact. The appellants’ failure to satisfy these twin conditions inflicted their notice of appeal with far-reaching consequences. The net effect is obvious. The notice of appeal, which houses three grounds, is plagued by indelible incompetence.

In an avowed bid to amputate the long arm of the law, on want of leave, the appellants invented the defence that the appeal was staked on lack of jurisdiction of the lower Court which required no leave of Court. The position of the law is that a ground of appeal which involves a question of jurisdiction is a ground of law, see Ugo v. Ugo (2017) 18 NWLR (Pt. 1597) 218. A ground of law requires no leave of Court, see Eneh v. NDIC (2018) 16 NWLR (Pt. 1645) 355. The reason is simple. Such a ground takes shelter under the provision of Section 241 (1) (b) of the Constitution, as amended, which comes under the canopy of appeals as of right.

However, the appellants have only scored barren victory on this hallowed principle of law being in their favour. It fetched nothing for them. The reason is not far-fetched. A clinical examination of the appellants’ three grounds in the notice of appeal, clearly, showcases their target. Their mission is to puncture the viability/validity of the lower Court’s interlocutory decision which was grounded on exercise of judicial discretion. They seek to emasculate the lower Court’s order to maintain status quo ante bellum in the first respondent’s suit pending its determination of the

applications of the parties. The term, status quo ante bellum, means the state/situation of things/affairs that existed before the something else, the case/controversy, occurred, see Akapo v. Hakeem-Habeeb (1992) 6 NWLR (Pt. 247); Falomo v. Banigbe (1998) 6 SC 141 (1998) 6 SCNJ 42; Oronti v. Onigbanjo (2012) 12 NWLR (Pt. 1313) 23. It is a commonplace expression in the firmament of injunction. To my mind, the status quo order, wears/bears all the hallmarks of a preservatory order: an order intended to conserve the subject matter from dissipation until the determination of the suit. In other words, a preservatory order oxygenates the res in a suit and puts it in the incubation throughout the gestation period of a matter. A preservative order lubricates and enlivens the res so that a Court is not confronted with a state of complete helplessness nor its order rendered nugatory at the end of the proceedings. It prevents the Court from being foisted with a fait accompli which will diminish its integrity and sanctity and expose it to vain order. It is a Court’s armor of integrity that is domiciled in its inherent power.

Thus, the interlocutory decision, which the appellants seek to impugn and ostracise, and their arsenal, the notice of appeal, are, totally, divorced from issue of jurisdiction which is numerouno in our corpus juris. In the interest of ex abundanti cautela, the appellants; notice of preliminary, which is challenging the lower Court’s jurisdiction, is yet to be heard; a fortiori being determined to warrant an appeal against it. To appeal against undetermined objection will sound in the echo of speculation. In effect, the defence of jurisdictional issue, erected by the appellants to castrate the issue/objection, is, wholly, indefeasible and disabled from its birth. It cannot fly.

whatever reason, it contaminates the competence of an appeal, which it ought to breathe life into, and, de jure, impinges on the jurisdiction of the Court, see Agu v. Odofin (1992) 3 SCNJ 161; Adelekan v. Ecu-Line NV (2006) 2 NWLR (Pt. 993) 33; Okolo v. UBN Ltd. (2004) 3 NWLR (Pt. 859) 87; Ikweki v. Ebele (2005) 11 NWLR (Pt. 936) 397; Aderibigbe v. Abidoye (2009) 10 NWLR (Pt. 1150) 592; Odunze v. Nwosu (2007) 13 NWLR (Pt. 105) 1; Akpan v. Bob (2010) 17 NWLR (Pt. 1223) 421; General Electric Co. v. Akande (2010) 18 NWLR (Pt. 1225) 596; FRN v. Dairo (2015) 6 NWLR (Pt. 1454) 141; Ikechukwu v. FRN (2015) 7 NWLR (Pt. 1457) 1; Ikuepenikan v. State (2016) 9 NWLR (Pt. 1465) 518; Allanah v. Kpolokwu (2016) 6 NWLR (Pt. 1509) 1; Japhet v. State (2016) 6 NWLR (Pt. 1509) 602; SPDCN Ltd. v. Sam Royal Hotel (Nig.) Ltd. (2016) 9 NWLR (Pt. 1516) 126; Fasuyi v. PDP (supra); FRN v. Dairo (supra); SPDCN Ltd. v. Agbara (2016) 2 NWLR (Pt. 1496) 353; Agwu v. Julius Berger (Nig.) Plc (2019) 11 NWLR (Pt. 1682) 105.

Jurisdiction, a mantra in adjudication, connotes the authority/power of a Court to determine a dispute submitted to it by contending parties in any proceeding, see

Ajamole v. Yaduat (No. 1) (1991) 5 SCNJ 172; Mobil Pro. Co. Untltd. v. LASEPA (2002) 18 NWLR (Pt. 798) 1; Ndaeyo v. Ogunaya (1977) 1 IM SLR 300; Ebhodaghe v. Okoye (2004) 18 NWLR (Pt. 905) 472; Garba v. Mohammed (2016) 16 NWLR (Pt. 1537) 144; A.-G., Kwara State v. Adeyemo (2017)1 NWLR (Pt. 1546) 210; Isah v. INEC (2016) 18 NWLR (Pt. 1544) 175; Angadi v. PDP (2018) 15 NWLR (Pt. 1641) 1; Nduul v. Wayo (2018) 16 NWLR (Pt. 1646) 548.
A Court of law is invested with jurisdiction to hear a matter when: “1. it is properly constituted as regards numbers and qualifications of members of the bench, and no member is disqualified for one reason or another; and 2. the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and 3. the case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction”, see Madukolu v. Nkemdilim (2006) 2 LC 2081961) NSCC (vol. 2) 374 at 379,per Bairamian F. J., Tukur v. Taraba State (1997) 6 SCNJ 81; Dairo v. UBN (2007) 16 NWLR (Pt. 1059) Okereke v. Yar’Adua (2008) 12 NWLR (Pt.

1100); Saraki v. FRN (2016) 3 NWLR (Pt. 1500) 531; Oni v. Cadbury Nig. Plc. (2016) 9 NWLR (Pt. 1516) 80; Diamond Bank Ltd. v. Ugochukwu (2016) 9 NWLR (Pt. 1517) 193; Okpe v. Fan Milk Plc. (2017) 2 NWLR (Pt. 1549) 282; Bello v. Damisa (2017) 2 NWLR (Pt. 1550) 455; Osi v. Accord Party (2017) 3 NWLR (Pt. 1553) 387; Nworika v. Ononeze-Madu (2019) 7 NWLR (Pt. 1672) 422; Adeleke v. Oyetola (2020) 6 NWLR (Pt. 1721) 440. The three ingredients must co-exist in order to infuse jurisdiction into a Court.

My noble Lords, I have matched the appellants’ defective notice of appeal with the inelastic ingredients of jurisdiction catalogued above. The appellants’ failure/neglect to enlarge the time within which to file the notice of appeal and want of leave before filing same constitute serious features that drain this Court of the requisite jurisdiction to entertain the appeal. Indubitably, both are ample demonstration that the appeal was not initiated by due process and upon the fulfillment of any condition precedent for this exercise of this Court’s jurisdiction over the appeal. In the eyes of the law, a condition precedent is: “the one that delays the

vesting of a right until the happening of an event”, see Atolagbe v. Awuni (1997) 9 NWLR (Pt. 525) 537 at 562, per Uwais, CJN; Niger Care Dev. co. Ltd. v. ASWB (2008) 9 NWLR (Pt. 1093) 493; A.-G., Kwara State v. Adeyemo (2017) 1 NWLR (Pt. 1546) 210; Jombo United Co. Ltd. v. Leadway Ass. co. Ltd. (2016) 15 NWLR (Pt. 1536) 439. The only way the appellants would have properly ignited the jurisdiction of this Court was contingent upon their satisfaction of the twin conditions-precedent. Their compliance is sine qua non for the activation of the Court’s jurisdiction. Alas, they did not act in due fidelity to the letter and spirit of the law. In sum, the notice of appeal, which is the appeal, fractured the second and third inviolable ingredients of jurisdiction. These infractions constitute a serious coup de grace to the competence of the appellants’ appeal.

(Pt. 905) 319; Lokpobiri v. Ogola (2016) 3 NWLR (Pt. 1499) 328; Garba v. Mohammed (supra); Isah v. INEC (supra). It will smell of stupendous waste of the scarce judicial time to hear the appeal when this Court is not equipped the necessary vires to do so. No Court relishes in its orders/proceedings being marooned in the murky ocean of nullity. I have no chance than to resolve the singular issue against the appellants and in favour of the first respondent.
Having found that this Court is disrobed of the jurisdiction to hear the appeal, predicated on incompetence notice of appeal, the law makes it idle to consider the issue canvassed by the contending parties in the appeal. In Ikechukwu v. FRN (2015) NWLR (Pt. 1457) 1 at 21, Nweze, J.S.C., incisively, declared:
It cannot be gainsaid that, as a general rule, an intermediate Court, like the lower Court, [Court of Appeal] has a duty to pronounce on all the issues before it….
However, there are some exceptions to the above broad rule that applies to the lower Court, as an intermediate Court. Thus, for example, where the said Court, as an intermediate Court, decided that it lacks jurisdiction in an

appeal before it, it, then, becomes unnecessary to consider other issues once it has taken a decision on the question of jurisdiction… it means, therefore, that where, as was the case at the lower Court, a preliminary objection challenging the competence of an appeal is upheld, it will be unnecessary to consider the arguments in support of the issues for determination distilled by the parties to the appeal ….
See also, Braithwaite v. Skye Bank Plc. (2013) 5 NWLR (Pt. 1346) 1; Oni v. Cadbury Nig. Plc (2016) 9 NWLR (Pt. 1516) 80; Ukiri v. FRN (2018) 12 NWLR (Pt. 1632) 1; Umezinne v. FRN (2019) 3 NWLR (Pt. 1660) 532; Ekemezie v. Ifeanacho (2019) 6 NWLR (Pt. 1668) 356; APC v. Umar (2019) 8 NWLR (Pt. 1675) 564.

Where the jurisdiction of a Court to hear a matter is divested by law, the order it makes is plain. It is one of striking it out, see Okolo v. UBN Ltd. (2004) 3 NWLR (Pt. 859) 87; Gombe v. P.W. (Nig.) Ltd. (1995) 6 NWLR (Pt. 402); CGG v. Ogu (2005) 8 NWLR (Pt. 927) 366; Uwazurike v. A.G., Fed. (2007) 8 NWLR (Pt. 1035) 1; WAEC v. Adeyanju (2008) NWLR (Pt.1092) 270; Dairo v. UBN Plc. (2007) 16 NWLR (Pt. 1071) 347; Ikechukwu v. FRN

(supra); Inakoju v. Adeleke (2007) 4 NWLR (Pt. 1052) 423; Onyero v. Nwadike (2011) 18 NWLR (Pt. 1279) 954; Odom v. PDP (2015) 6 NWLR (Pt. 1456) 527.

On the whole, having resolved the solitary issue against the appellants, the preliminary objection, evolved by the first respondent to snuff life out of the appeal at is embryo stages is imbued with merit. The preliminary objection succeeds. Consequently, I uphold the preliminary objection. Accordingly, I strike out the appeal for being incompetent. The parties shall bear the respective costs they incurred in the prosecution and defence of the fruitful preliminary objection.

OBIETONBARA OWUPELE DANIEL-KALIO, J.C.A.: I have read the draft judgment of my learned brother OBANDE FESTUS OGBUINYA, J.C.A. and I agree with my lord. The appeal being in respect of an interlocutory decision, the appellant ought to have approached this Court with the trinity prayer. The preliminary objection succeeds thereby terminating the appeal in limine.

ONYEKACHI AJA OTISI, J.C.A.: I had the opportunity to read before now, a draft copy of the lead Judgment of my Learned Brother, OBANDE FESTUS OGBUINYA, J.C.A.,

striking out this appeal for incompetence. I agree completely with the conclusion reached by my Learned Brother.

It is settled law that the periods within which a party who is dissatisfied with a decision of the lower Court may appeal or seek leave to appeal are prescribed by relevant constitutional and or statutory provisions. Where leave to appeal is required, it must be applied for and obtained within the statutory period of appeal unless time to do so has been extended; Odofin v. Agu (1992) 9 LRCN, 665; Section 241 (1) and Section 242(1) of the 1999 Constitution, as amended, Section 24 of the Court of Appeal Act, 2004.

Where the appeal is lodged in respect of a final order made by the lower Court, no leave of Court is required, notwithstanding the nature of the of appeal; Ault & Wiborg (Nigeria) Limited v. Nibel Industries Limited (2010) LPELR-639(SC); Nigeria National Supply Co. Ltd v. Establishment Sima of Vaduz (1990) 11-12 S.C 209, (1990) LPELR-2004(SC); Hydroworks Ltd v. Rimi Local Government (2001) LPELR-5712(CA). See also Section 241 (1)(a) of the 1999 Constitution. On the other hand, where the ground of appeal is based on mixed law

and fact, leave of the lower Court or of this Court must be obtained;Honeywell Hour Mills Plc v. Ecobank Nigeria Limited (2018) LPELR-45127(SC); Obayuwana & Ors v. Adun (2020) LPELR-49377(SC). See also Section 242(1) of the 1999 Constitution as amended.

A ground of appeal which challenges the improper exercise of discretion by a lower Court is a ground on mixed law and fact. This is because the complaint necessarily involves facts and circumstances. In sum, if the order of Court is a final order, irrespective of whether or not the ground of appeal involve mixed law and fact, no leave of Court is required to lodge an appeal against the decision, but it must be filed within 3 months of the decision, in compliance with Section 24(2)(a) of the Court of Appeal Act. But where the appeal is against an interlocutory decision of the lower Court and that involves mixed law and fact, by the provisions of Section 24 (2)(a) of the Court of Appeal Act, 2004, it must be filed within 14 days of the said decision. The question would now be whether the decision of the lower Court, which has given rise to the instant appeal, was a final order or an interlocutory order.

The defining factor in determining what constitutes a final decision has elicited a plethora of judicial pronouncements, which hover between whether it should lie in a consideration of the nature of the application before the Court or the nature of the order sought; the Bozson v. Altrinchan Urban District Council (1903) 1 M.B. 547 test, and the Salaman v. Warner (1891) 1 Q.B. 734 test, both of which were considered by the Apex Court in Akinsanya v UBA Ltd (1986) LPELR-355(SC). In our extant jurisprudence, the nature of order test has received approval. In Fadiora v. Gbadebo (1978) LPELR-1224(S.C.) at page 14 of the E-Report, (1978) ALL NLR 42, the Supreme Court, per Idigbe, J.S.C., cited with approval the learned authors of Spencer Bower & Turner on the Doctrine of Res Judicata (1969 Ed.) in Art 164, P. 34 thus:
“A judicial decision is deemed to be final, when it leaves nothing to be judicially determined or ascertained thereafter, in order to render it effective and capable of execution, and is absolute, complete, and certain, and when it is not lawfully subject to subsequent decision, review or modification by the Tribunal which pronounced it.”

See alsoHenry Stephens Engineering Ltd v S.A. Yakubu (Nig) Ltd (2009) LPELR-1363(SC); Owoh & Ors v Asuk & Ors (2008) LPELR-2853(SC); UBN Plc v Sogunro (2006) LPELR-3393(SC); Ezenwosu v Ngonadi (1992) LPELR-1203(SC); Olatunde v OAU & Anor (1998) LPELR-2575(SC). Therefore, it can be regarded as settled that if the decision, whichever way it is given, will finally dispose of the matter in dispute, then it is a final decision. On the other, hand, if the decision, will not dispose of the matter in controversy but is made in the course of proceedings and will allow the action to go on, then it is not final, but interlocutory.
It is important to also note that even from an interlocutory application, a final decision can be made with respect to particular issues. In Gomez & Anor v. Cherubim and Seraphim Society & Ors. (2009) LPELR-1331 (SC), the Supreme Court, per Oguntade, J.S.C. said:
“However, where the order made finally determines the rights of the parties, as to the particular issues disputed, it is a final order even if it arises from an interlocutory application.”

Now, the order made by the learned trial Judge, directed the parties to maintain status quo ante bellum pending the determination of a notice of preliminary objection filed by the Appellants herein, who were the 1st and 2nd defendants at the lower Court, and a motion for interlocutory injunction filed by the 1st Respondent herein, who was the claimant at the lower Court. This order was undisputedly an interlocutory decision. The order of the lower Court did not finally dispose of the matter in dispute. It was made only to regulate the conduct of the parties until the end of trial. The order restrained the parties from continuing with hostilities until the matter in controversy would be settled by the trial Court one way or the other. This decision was made in exercise of the discretion of the learned trial Judge, in consideration of the facts and circumstances of the case. The ground of appeal thereon was unarguably, therefore, one of mixed law and fact.
Being, an interlocutory order, and more so with the ground of appeal being on mixed law and fact, by virtue of the said provisions of Sections 241 and 242, this Court cannot hear the appeal unless leave of the lower Court or of this Court was

first obtained; Honeywell Flour Mills Plc v. Ecobank Nigeria Limited (supra); Obayuwana & Ors v. Adun (supra); Fasuyi v PDP (2017) LPELR-43462(SC); Nigeria National Supply Co. Ltd v. Establishment Sima of Vaduz (supra); Metal Construction (West Africa) Ltd v. Migliore & Ors (1990) 2 S.C. 33, (1990) LPELR-1869(SC); Opuiyo & 2 Ors v. Omoniwari & Anor (2007) LPELR-2715(SC) Garuba & Ors v. Omokhodion & Ors (2011) LPELR-1309(SC). Where an appeal requires the leave of Court and the leave is not sought and obtained, the jurisdiction of this Court is ousted.

Now, it is also the position of the law that where some of the grounds of appeal are of law and others are either of facts or mixed law and facts and leave was not obtained, only those grounds which are of law would be competent. All grounds of mixed law and fact for which no leave was granted must be struck out;Irhabor v. Ogaiamien (1999) 8 NWLR (PT 616) 517, (1999) LPELR-1595(SC), Okwuagbala v. Ikwueme (2010) LPELR-2538(SC), (2010) 19 NWLR (PT 1226) 54. In the instant case, however, all the grounds of appeal revolve around the interlocutory order made by the learned trial Judge.

Failure to obtain the requisite leave rendered the instant appeal incompetent, as there is no ground of appeal to save the appeal.
For these reasons and for the fuller reasons given in the lead Judgment, I also strike out the appeal for being incompetent and affirm the judgment of the lower Court.

Appearances:

S. Sowemimo, SAN with him, Akin Adewopo, Esq. For Appellant(s)

Adeleke Adepoju, Esq. – for first respondent.
No legal representations for the second and third respondents. For Respondent(s)