JACOB LADIPO v. SIL CHEMICAL LIMITED & ORS
(2019)LCN/13328(CA)
(2019) LPELR-47636(CA)
RATIO
APPEAL: WHETHER LEAVE IS REQUIRED TO APPEAL AN INTERLOCUTORY DECISION OUT OF TIME
See AKINSANYA v UBA LTD (Supra); AKWA IBOM PPTY INVEST CO LTD v UDOFEL LTD & ANOR (Supra); OMONUWA v OSHODIN (SUPRA); OGOLO v OGOLO (Supra). This Court held in IHEJIRIKA & ORS v IHEANACHO & ANOR (2018) LPELR 44821(CA) on whether leave of Court is required to appeal against an interlocutory decision out of time and effect of failure to obtain such leave thus;
“The appellant filed two notices of appeal, one on 22-2-17 and the other on 17-3-17. In arguing the appeal, appellant’s counsel emphatically informed the Court that the appeal is founded on the notice filed on 17-3-17 which is contained at pages 88 to 94 of the record of appeal. He admitted that he did not obtain leave of Court to file his notice of appeal after 14 days because the ruling was a final decision of the trial Court. The Respondent urged the Court to hold that the notice of appeal was incompetent having been filed more than 14 days after the delivery of the ruling being appealed against. S. 24(2) of the Court of Appeal Act reads as follows: (2) The periods for the giving of notice of appeal or notice of application for leave to appeal are:- (a) In appeal in civil cause or matter, fourteen days where the appeal is against an interlocutory decision and three months where the appeal is against a final decision. The Supreme Court per Karibi-Whyte, JSC in Igunbor vs. Afolabi (2001) NWLR (pt.723) 148 in very clear terms set out the distinction between an interlocutory and final order or judgment when he said……….PER ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
JUDGMENT: WHAT IS THE DIFFERENCE A FINAL JUDGMENT AND INTERLOCUTORU JUDGMENT
“A final order or judgment at law is one which brings to an end the rights of the parties in the action. It disposes of the subject matter of the controversy or determines the litigation as to all the parties on the merits. On the other hand, an interlocutory order or judgment is one given in the process of the action or cause, which is only intermediate and does not finally determine the rights of the parties in the action. It is an order which determines some preliminary or subordinate issue or settles some steps or question but does not adjudicate the rights of the parties, in the action. However, where the order made finally determines the rights of the parties as to the particular issue disputed, it is a final order even if arising from an interlocutory application.” See also Ebokam vs. Ekwenibe & Sons Trading Co. (1999) 10 NWLR (pt. 622) 242, Alor & Anor. Vs. Ngene & Ors. (2007) 17 NWLR (pt. 1062) 163, Chief Olisa Metuh vs. FRN & Anr. (2017) 4 NWLR (pt. 1554) 108, Ogolo vs. Ogolo (2006) 5 NWLR (pt. 972)163.PER ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
JUSTICE
TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria
TOBI EBIOWEI Justice of The Court of Appeal of Nigeria
Between
JACOB LADIPO
(Recevier Vegetable Oil Complex) – Appellant(s)
AND
1. SIL CHEMICAL LIMITED
2. RIVERS VEGETABLE OIL COMPANY LTD
3. MULTICHEM INDUSTRIAL
4. SONVIG INTERCONTINENTAL INDUSTRIES LTD – Respondent(s)
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. (Delivering the Lead Ruling): This is a Ruling on a Preliminary Objection filed by the Respondent on 21/12/2017 on the ground that the Appellants notice of appeal filed on 16th May, 2017 is incompetent. It was accompanied by a 15-paragraph affidavit, deposed to by Anthony Chukwudi, and a written address in support filed on 14th November, 2018.
The grounds are that;
i. The Lower Court delivered it ruling on 27th April, 2017, striking out the Appellant motion seeking to join on Jacob Ladipo as respondent (in an already concluded winding up suit) and to stay further proceedings in the suit. The appellant filled their Notice of Appeal against the ruling on 16th May, 2017, outside the 14 days period prescribed by the Court of Appeal rules to appeal against an interlocutory decision.
ii. That the Appellant have not filed their appellant brief within the 45-day provided by the Court of Appeal rules.”
The Appellant and 3rd & 4th Respondent opposed it and filed a counter affidavit of 5 paragraphs deposed to by Tola Oni of PHINHERO LP, who filed a written
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address on 26th November, 2018, deemed on 11th April, 2019. The 3rd and 4th respondent filed written addresses on 22nd January, 2019, to which the Respondent filed a reply on point of law on 3rd December, 2018.
This Court had ordered written addresses by all parties and same was adopted on the 11th of April, 2019.
A summary of the addresses beginning with the 1st Respondent who filed the preliminary Objection on the ground that the Notice of Appeal filed by the Appellant is incompetent, submitted on the sole issue for determination.:
1. Whether by the respondents incompetent notice of appeal filed on the 16th of May, 2017, the appellant can have any valid process filed before this honourable Court?
He argued that by virtue of Orders 10(1), 19(1) and 10(2) of the Court of Appeal Rules, 2016, the Court has the powers to suo moto dismiss the process filed in respect of the appeal. He referred to NWDM v UFT ENGR LTD (2011) 8 NWLR (PT 1249) at PG 315; UAC (NIG) PLC V ODEYEMI (2011) 13 NWLR (PT. 1265) at PG 616, that the notice was filed after 14 days of statutory right to appeal against interlocutory decision.
He further submitted that an
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incompetent appeal has to be struck out and relied on FANI – KAYODE v FRN (2011)4 NWLR (PT 1237) at PAGE 344; RE: AMOLEGBE, 2014 8 NWLR (PT. 1408) at PG 85.
The Respondent has stated that the affidavit not being denied amounts to admissions, he relied on H. S. ENGR LTD v S. A. YAKUBU (NIG) LTD (2009) 10 NWLR (PT 1149) at PAGE 420; OGOEJEOFO v OGOEJOFO (2006) 3 NWLR (PT. 966) at 212; E.S.U.T v I.J.M.E.LTD (2010) 11 NWLR (PT 1205) at 305.
Respondent submitted that nothing can stand on the case of the appellant and other Court process filed by the appellants is invalid and of no consequence.
The Appellant on the contrary contended that the decision of the lower Court amounts to a final decision and hence requires no leave and renders the notice of appeal competent. The appellant settled on the issue; whether having regards to the facts and circumstances of this instant appeal are incompetent?
The appellant catalogued events leading to the issue herein, that the lower Court had dismissed the appellants motion on notice dated 1/12/2016 for joinder as a party to the post judgement, and executor proceedings initiated by the 1st, 3rd & 4th
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respondent as unsecured creditors against the 2nd respondent (in receivership) and also sought orders staying further proceedings at the lower Court pending the completion of the receivership process by virtue of Section 208(2) A & E of the CAMA.
Appellant posit that this dismissal orders cannot be regarded as interlocutory appeal. He contended that the yard stick for accessing whether its final or interim is to apply the nature of order made test and not the nature of application made test. As confirmed in the case of AKINSANYA v UBA LTD (1986) 4 NWLR (PT 35) P 273 that the test to be applied by Nigerian Courts is Nature of the Order Test, this was followed in AKWA IBOM PROPERTY AND INVESTMENTS CO LTD v UDOFEL LTD & ANOR (2016) LPELR 41159 (CA) PG 9-10; OMONUWA v OSHODIN (1985) 2 NWLR (PT 10) P. 924; IGUNBOR v AFOLABI (2001) 11 NWLR (PT 723) 148; OGOLO v OGOLO (2006) 5 NWLR (PT 972) 186.
All the above decisions are on the point that, what matters is the nature of the order on the rights of the parties to that proceeding. That in this appeal, the application of the nature of order test; the decision, subject matter of the appeal
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brought to end the issue of joinder to the action at that stage. Therefore, the appellant concluded that it is a final decision.
Appellant submitted that the respondent somersaulted on raising the non-filing of brief, he referred to ADEJUMO v AGUMAGU & ORS (2015) LPELR – 24502 (CA). Appellant submitted that due to amendment of the notice of appeal, additional record to be transmitted and pending motion it has not been heard.
Finally, he submitted that the Court should refrain from delving into the substantive appeal. And the Court should refuse the application, he cited HASSAN & ORS v BORNU STATE GOVT & ORS (2016) LPELR – 40250 (CA).
Appellant said paragraph 11 of the affidavit amounts to conclusion and offends Section 115 of Evidence Act.
The 3rd & 4th Respondents written address in support of the preliminary objection, recounted facts of the case and distilled the following issues wit;
1. Whether or not the Appellants requires leave to appeal as a non-party to the suit at the lower Court?
2. whether or not the Notice of appeal was filed within time?
3. whether the appellant has a
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competent appeal cum Record of Appeal.”
The 3rd and 4th respondents objected to the Appellants application on the perspective that Section 234 of the 1999 constitution raises a right of appeal in civil proceedings for categories of persons capable of exercising rights; against the party to the proceedings and with leave by any other person.
They submitted that the Appellant filed the notice of appeal 19 days after the ruling was delivered. The party to the proceedings are named on the record, and is aggrieved; against whom the decision has been pronounced. The cases of MOBIL PRODUCING (NIG) ULTD v MONOKPO (2003) 18 NWLR (PT 852) 346; ADELEKE v OYO STATE HOUSE OF ASSEMBLY (IN LADOJA) (2006) 10 NWLR (PT. 987)50 at 77.
3rd & 4th Respondents argued that those having interest must have leave of Court, he relied on ADEMOLA v SODIPO (1992) 7 SCNJ 417, and it was the refusal of lower Court to grant the joinder that led to this appeal. They contended that the need for leave was crucial for interested party, whether interlocutory or final decision and cited RE: MADAKI (1996) 7 NWLR (PT 459) 153. They contended that there was no application
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for leave in either Courts and it renders that appeal incompetent. He cited AG FED v ANPP (2003)15 NWLR (PT 844) 600 at 644; LSDPC v DAKOUR (1992) 11 -12 SCNJ 217.
On the effect of failure to obtain leave, he cited IKWEKI v EBELE (2005) 7 MJSC 125 at 144 PARA A; COKER v UBA (1997) LPELR 800 SC PG 40; AYANSINA v CO- OP BANK LTD (1994) 5 NWLR (PT 347) 742.
The said respondents distinguished leave to appeal as a party having an interest from right to appeal itself and urged the Court to dismiss the application.
On issue 2, it was argued that the time for filing an interlocutory appeal is within 14 days of the decision and referred to Section 24 of Court of Appeal Act, 2004. The appeal filed his Notice of Appeal on 16th May 2017, and no application for leave was filed at the lower and Court of appeal, hence it is incompetent he relied on N.W.D.M LTD v UFT ENGR LTD (2011) NWLR (PT 1249) P 308 315 at 327; DINGIYADI v INEC (NO 1) (2010) 18 NWLR (PT 1224) 38 at 38.
He submitted that by Order 18 Rule 10 (1) of Court of Appeal, 2016, the appeal is bound to be struck out.
On issue 3, the 3rd & 4th respondents, referred to Order 8 and 8(1)
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& (4) of the Court of Appeal rules, 2016, that the record was complied before the 60 days window provided for in the rules and that the record does not contain the ruling of the Court. Exhibit B attached to the further affidavit shows service of the undated record and nothing more. That the application for leave to transmit additional record of appeal is an admission of the non-inclusion of the ruling, 3rd & 4th respondents submitted further that the Court cannot hear the appeal on an incomplete record, he relied on BALA & ANOR v MOHAMMED (2017) LPELR – 44038 (CA); BRITTANI – U NIG LTD v SEPLAT PETROLEUM DEV. CO. LTD (2016) LPELR 40007.
RESOLUTION.
The genesis of the application is that the Respondent – SIL CHEMICALS LTD filed a petition to wind up the company but the Appellant filed an application to be joined as a party to the proceedings and also to have the proceedings stayed pending the completion of ongoing receivership at the instance of the secured creditors to the 2nd Respondent.
The lower Court dismissed the application which was opposed by the 1st, 3rd & 4th Respondents hence this appeal.
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The lower Court has since given judgement in the matter.
Therefore, in deciding if the appeal is an interlocutory or final appeal, having agreed that the notice of appeal was filed 19 days after the ruling, the order refusing joinder and stay, the Court went on to conclude judgement. Therefore, there is nothing left to do at the lower Court nor stay, the application is spent. See AKINSANYA v UBA LTD (Supra); AKWA
