OJO v. OJO & ANOR
(2020)LCN/15304(CA)
In The Court Of Appeal
(ADO-EKITI JUDICIAL DIVISION)
On Tuesday, June 09, 2020
CA/EK/55/2019
Before Our Lordships:
Theresa Ngolika Orji-Abadua Justice of the Court of Appeal
Fatima Omoro Akinbami Justice of the Court of Appeal
Paul Obi Elechi Justice of the Court of Appeal
Between
ADE OJO APPELANT(S)
And
1) ABIODUN JOHNSON OJO 2) SUNDAY AFOLAYAN RESPONDENT(S)
RATIO
THE TEST OF DETERMINING WHETHER A DECISION IS FINAL OR INTERLOCUTORY
The test of determining whether a decision is final or interlocutory is now very well settled. In Alor v Ngene (2007) 17 NWLR (PT 1062) 163 at 178, Tobi, JSC stated:
“Two tests have been laid down for determining whether or not an order of Court is final or interlocutory. They are (a) the nature of the application made to the Court; (b) the nature of the order made. In Nigeria, it is the nature of the order test that has been constantly applied. If the order made finally disposes of the right of the parties, then the order is final. If the order does not, then it is interlocutory. An order is also regarded as final if at once affects the status of the parties, for whichever side the decision may be given, so that if it is given for the plaintiff, it is conclusive against the plaintiff. In order to determine whether or not the decision of a Court is final or interlocutory, the decision must relate to the subject matter in dispute between the parties, and not the function of the Court making the order. See Omonuwa v Oshodin (1985) 2 NWLR (PT10) 924; Abubakar v Dankwambo (2015) LPELR 25698 1 at 22-23 (CA) and Dankwambo v Abubakar (2015) LPELR (25716) 1 SC. 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 “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 Metu vs. FRN & Anr. (2017) 4 NWLR (pt. 1554) 108, Ogolo vs. Ogolo (2006) 5 NWLR (pt. 972)163. PER AKINBAMI, J.C.A.
WHETHER OR NT A DEFENDANT WHO APPEARS WHEN TRIAL IS CALLED SHALL BE ENTITLED TO JUDGEMENT WHERE THE PLAINTIFF DOES NOT APPEAR
If, when a trial is called on the defendant appears, and the plaintiff does not appear, the defendant, if he has no counter-claim, shall be entitled to judgment dismissing the action, but if he has a counter-claim, then he may prove such counter-claim, so far as the burden of proof lies upon him: Provided that if the defendant shall admit the cause of action to the full amount claimed, the Court may, if it thinks fit, give judgment as if the plaintiff had appeared. Any judgment obtained, where one party does not appear at the trial may be set aside by the Court, upon such terms as may seem just, upon an application made within a specified period after the trial, or within such longer period as the Court may allow for good cause shown. These Rules vest jurisdiction on the trial Court to dismiss a suit where the plaintiff fails to appear to lead evidence in his case and further statutorily empowers the Court to set aside any judgment so obtained provided the plaintiff applies for the order setting aside the judgment within the specified period. The trial Court in the exercise of its inherent powers can dismiss a suit for want of prosecution. Where the dismissal is founded on the inherent powers, the dismissal can be equated to a striking out as the suit can be relisted on proper application. See Olowu vs. Abolore [1993] 5 NWLR (Pt. 293) 255, Echaka Cattle Ranch Ltd vs. NACB Ltd [1998] 4 NWLR (Pt. 547] 526 and Akujinwa vs. Nwaonuma [1998] 13 NWLR (Pt.583) 632. PER AKINBAMI, J.C.A.
WHETHER OR NOT THE APPELLATE COURT CAN INTERFERE WITH THE FINDINGS OF THE LOWER COURT
It has long been settled by the Supreme Court that the appellate Court will not interfere with the exercise of discretion by a trial judge simply because a litigant complains against such exercise. We can only interfere where there is proof that the discretion exercised was not exercised judicially and judiciously with the result that gross miscarriage of justice had occurred. See Anyah v A.N.N (1992) NWLR Pt…PER AKINBAMI, J.C.A.
WHETHER OR NOT LEAVE IS REQUIRED WHERE APPEAL IS ON QUESTION OF LAW ALONE
Secondly, leave is not required where appeal is on question of law alone. See Section 241(1) (b) of the Constitution. I hereunder reproduce Section 241 (1) (b) of the Constitution:- “Section 241(1) An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases… (b) Where the ground of appeal involves questions of law alone, decisions in civil or criminal proceedings;” In all other situations, leave of Court is required before an appeal can be filed as stipulated by Section 242(1) of the Constitution which provides:- “Subject to the provisions of S.241 of this Constitution, an appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal with the leave of the Federal High Court or that High Court or the Court of Appeal.”PER AKINBAMI, J.C.A.
WHERE A GROUND OF APPEAL IS BASED ON FACTS, OR MIXED LAW AND FACTS
Once a ground of appeal is based on facts, or mixed law and facts, the jurisdiction of both the Court of Appeal, and the Supreme Court is ousted and there is no valid appeal unless leave has been sought and obtained to file the ground. Although every citizen may exercise his statutory right of appeal, yet it is the duty of all Courts to see that such right is exercised in strict compliance with the statutory requirements which govern the very existence of an appeal. One of such requirements is the necessity for obtaining in the prescribed manner, leave to appeal to this Court. This is the very requirement which the appellant failed to fulfill in the present case. For this reason, there is no valid appeal before this Court and I so hold. See Mosuro & Anor. v Akinyele 13 WACA 112-113, Ayansina and Anor. vs. Cooperative Bank Ltd. (supra), Shaka v. Salisu (1996) 2 NWLR (pt. 428) 22 at 23, Yakubu v. The Gov. of Kogi State and 4 Ors. (1995) 3 NWLR (Pt. 383) 367, Victoria Okotie-Eboh v. Adola Okotie-Eboh (1986) 1 S.C. 479 at p.487, Co-operative & Commercial Bank Ltd. v. Emeka Ogwuru (1993) 3 NWLR (Pt. 284) 630, 1993 3 SCNJ 54. A look at the ground of the appeal makes it clear that what gave rise to this interlocutory appeal was the order of the trial Court of 23/1/19. See the case of Paul Nwadike v. Cletus Ibekwe (1987) 4 NWLR (Pt. 67) 718 per Nnaemeka Agu JSC at 743. I find further support in the case of Ayansina and Anor. vs. Cooperative Bank Ltd. (supra) (1994) where Nsofor, JCA at pg. 754 had this to say: “Leave” is a condition precedent to the exercise of the right to appeal with leave. It goes, itself, to the question of the jurisdiction of the appellate Court to entertain the appeal. It will be accepted as settled that where this condition precedent is necessary but has not been fulfilled, there is, legally speaking, no appeal.” PER AKINBAMI, J.C.A.
FATIMA OMORO AKINBAMI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Ekiti State High Court, delivered by Hon. Justice E. B. Omotoso on the 23rd, of January, 2019.The Respondents were the plaintiffs at the trial Court. The Defendant is the Appellant before this Court.
By a Writ of Summons, and Statement of claim filed on the 7th day of April, 2017, the Respondents claimed against the Appellant and one other as follows:-
(A) “A declaration that the piece of land lying, being and situate at Ijamoro on Phase III, Block 1, consisting of plots 1,2,3,4,5,8, 9, 11, 12, 13 of the Baisaya family layout is the property of the 1st Claimant, and as such entitled to the right of occupancy of the said piece of land.
(B) A declaration that the piece of land lying, being and situate at Ijamoro on Phase 1, Block 1, Plot 31 of the Baisaya family land layout is the property of the 2nd Claimant, and as such entitled to the right of occupancy of the said piece of land.
(C) The sum of (N50,000,000) Fifty Million Naira as damages for the Defendants’ act of trespass on the Claimants said land.
(D) A perpetual injunction restraining the Defendants, their agents, servants and privies from committing any, or further act of trespass on Claimant’s said plots of land lying, being and situate on the Baisaya family layout plan Phase 111, Block 1 and Phase 1, Block 1 Plot 31 at Ijamoro Ado Ekiti.”
Upon been served with the Respondents’ claim, the Appellant entered a memorandum of conditional appearance on 12th April, 2017, and filed his statement of Defence and also Counter-Claimed against the Respondents jointly and severally as follows:-
(A). A declaration that the sale of 20 plots of land, which covered an area of 3926.730 sq mts for the first 6 plots with a coordinating points labeled as SC/EKE (5240V, 5241V, 5242V, & 5243V) and second 14 plots covering an area of 9029.230SQ.MTS with a coordinating point labeled as SC/EKE(5244V, 5245V, 5246V, and 5247V) as shown on the two survey plans of the 1st Defendant on OLOWOKOGBOYI (Chief Olosunde Olowodagbe) Farm land to the 1st Defendant by Hon. Femi Osho from Olowokogboyi/ Olosunde Aonuo Baisaya family land at Ijamoro, Ado- Ekiti is lawful.
B). A declaration that the 1st Defendant is entitled to the grant of statutory right of occupancy to all the 20 plots of land, situated and lying at ljamoro, Ado-Ekiti bounded as follows:
1. The Ayaniju farm land, which by its downside there are two streams namely; Ofin Stream and Alabude Stream.
2. The Elemudu family farmland.
3. The Oso Peter Farm Land, which is presently occupied by his son ldowu Peter.
(4). The Oloro family farm land.
C.) A declaration that Claimant’s plots of land are not the same as that of the 1st Defendant, since they differ in quantity and location.
D). An order of perpetual injunction restraining the claimants, their heir, agents, servants and privies from further entering and/or further committing trespass on the the 1st Defendant’s land.
(E.) An order granting the sum of N30,000,000 (Thirty Million Naira) as damages to the 1st Defendant, as damages for the claimants act of trespass committed on the land in issue.
The Appellant filed a Motion for joinder on 6th, June, 2017. On 5th October, 2017 the learned trial judge raised an issue of misjoinder of parties by the Respondents, and asked parties to address the Court.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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Respondents filed their written address on 1st November, 2017.
Appellant filed a Reply on points of law on 8th November, 2017, and same was argued on 27th, November 2017. Ruling was delivered and Respondents’ case was struck out on 17/1/18.
On 11th Feb 2018, Appellant filed a Motion to add additional witnesses, and Respondent filed a Counter-Affidavit to the application. Also on 7th February, 2018 Appellant filed an application to adduce evidence via his Claim, pages 171-177 of the record of appeal.
Reply to Statement of Defence and Counter Claim was filed by Respondents on 6/3/18.
Motion to file defence to Counter Claim and Counter Claim by Respondents was filed on 8/3/18.
On 16/3/18 Appellant filed a Motion for Amendment.
On 28/3/18 the Court adjourned the matter to 3/5/18, for hearing of all pending applications, and thereafter, matter was adjourned to 28/5/18.
On 12/4/18, Respondents filed a Notice of Appeal against the Ruling of 17/1/18 striking out Respondents’ claim, pages 266-269 of the record of appeal.
Appellant filed his Amended Statement of Defence and Counter- Claim on 28/5/18 pages 279-367 of the record of appeal.
On 28/5/18, Respondents filed a Motion for dismissal of the Counter -Claim for failure to file pre-trial papers pages 368-375 of the record of appeal.
Appellant filed a Counter-Affidavit to above application pages 376-385, of the record of appeal. The motion was heard on 21/6/18, and dismissed, but Appellant was ordered to regularize his pre-trial papers filed out of time pages 387-391, of the record of appeal.
On 25/6/18, Appellant filed a Motion to regularize his pre-trial papers filed out of time, which was moved and granted on 17/7/18, and the matter adjourned to 18/9/18 for pre-trial conference. Pages 392-401 of the record of appeal.
On 12/11/18, the Respondents prayed for adjournment which was granted, and the matter adjourned to 10/12/18 for hearing, pages 404-405 of the record of appeal.
On 7/12/18, Respondents filed a Motion for leave to amend their Reply to Statement of Defence, and defence to Counter- Claim. Appellant filed a Counter-Affidavit to the application and was later withdrawn and replaced with the one of 22/1/19, which was moved and granted on 23/1/19 without objection, pages 407-626 of the record of appeal. The Appellant was to open his case, but declined on the excuse that he has not been able to get in touch with his witnesses in this case, and because he thought the matter was adjourned for the hearing of a pending application.
The learned trial judge dismissed the case for lack of diligent prosecution. Pages 531-626 of the record of appeal.
Aggrieved by the decision of the lower Court, the appellant herein has appealed to this Court. He filed his Notice of Appeal on 19th of February, 2019. It has one ground of appeal:
Ground 1
The learned trial judge erred in law when he dismissed the Appellant’s Counter-Claim for want of diligent prosecution.
Particulars of Error
1. The Suit was instituted by the Respondents on the 7th day of April, 2017.
2. The Respondents’ Claim was struck out at the lower Court on the 17th January, 2018 being improperly constituted, while the Appellant’s Counter-Claim was set down for hearing.
3. That there had been no adjournment whatsoever on the part of the Appellant, since the matter commenced at the trial Court.
4. That the Respondents had made series of efforts to frustrate the hearing of the Appellant’s Counter-Claim, since the Respondents’ Claim was struck out from series of adjournments at the instance of the Respondents.
5. That the Appellant was at the trial Court on the 12th day of November, 2018 to prove his case, but the Respondents’ counsel asked for an adjournment, which led the trial Court to award a cost of N5,000 against the Respondents (costs yet to be paid).
6. That the Motion for leave to amend, filed by the Respondents dated 6th December, 2018, but filed 7th December, 2018 and the Appellant’s Counter-Affidavit dated 14th December, 2018, and filed same day in opposition, and served on the Respondents’ counsel on the 14th December, 2018 was to be moved and adopted on the 23rd January,2019 respectively.
7. While the matter was to come up at the trial Court on the 23rd of January, 2019, the Respondents served on the Appellant’s counsel in chambers at about 4:23pm of 22nd January, 2019 another Motion dated 22nd January, 2019 and filed same day seeking the leave of the trial Court to amend the Respondents’ Statement of Defence and Defence to Counter-Claim, having seen the defects in the process earlier filed through the Appellant’s Counter-Affidavit filed in opposition.
8. That the Respondents’ Motion dated 6th December, 2018, but filed 7th December, 2018, for leave to amend was withdrawn and the trial Court further awarded cost of N10,000 against the Respondents.
9. The trial Court later granted the Respondents’ Motion for leave to amend the Respondents’ Reply to the Statement of Defence and Defence to Counter- Claim, dated 22nd January, 2019 and filed same day.
The trial Court dismissed the Appellant’s Counter-Claim on the 23rd January, 2019.
The Ruling of the lower Court is at pages 128-141 of the Record of appeal.
The Appellant being dissatisfied appealed against the said Ruling. The Notice of Appeal is at pages 632-635 of the record of appeal.
Upon the compilation and transmission of the Record of Appeal, the parties filed and exchanged briefs of argument. The Respondents filed an application challenging the competence of the appeal. The Appellant filed a counter-affidavit in opposition to the application. Argument in respect of the said application was incorporated in the Respondents’ Brief, and the Appellant responded to the same in the Appellant’s Reply Brief.
At the hearing of the appeal on the 17th day of March, 2020, the learned senior counsel for the parties urged the Court to uphold their respective submissions in the resolution of the issues raised in the appeal. On account of its threshold nature, l will in the consideration and resolution of this appeal, start with the Respondents’ challenge to the competence of the appeal.
Preliminary Objection
The Respondents argued the preliminary objection on pages 5-9, of their Brief of Argument, whilst the Appellant’s response thereto is on pages 2-5, of the Appellant’s Reply Brief.
The issue for determination in the preliminary objection is:
“Whether the Honourable Court has jurisdiction to entertain this appeal.”
The Respondents’ Notice of Preliminary Objection is dated and filed 22nd January, 2020, praying this Court to strike out this appeal for want of jurisdiction.
The Respondents predicated the preliminary objection on five grounds as follows:
(1). The appeal herein is interlocutory to which leave is required in appealing against same.
(2). Appellant did not seek leave to appeal against the Ruling of 23/1/19.
(3). The appeal is incompetent and abusive of Court process.
(4). The sole issue formulated by the Appellant did not emanate from the ground of appeal.
(5). The Honourable Court has no jurisdiction to entertain the appeal.
The Respondents’ argument is that, the Ruling of the lower Court appealed against is an interlocutory decision, therefore the appeal must be filed within (14) fourteen days. It was submitted that while the Ruling was delivered on the 23/1/19, the Notice of appeal was filed on 19/2/19, twenty-seven days after the Ruling was delivered, and therefore the Notice of appeal having been filed out of time was incompetent, null and void.
Respondents contended that, the Ruling of the learned trial judge is based on a discretionary power, which requires leave to appeal against at the interlocutory stage. The nature of grounds of appeal challenging the exercise of discretion by trial Court is not a ground of law, but of mixed law and fact requiring leave. The failure to obtain leave to appeal where required, is fatal to the appeal. The cases ofAmadasun v Ume (2007) 13 NWLR (PT 1051) 214, 235-236; R.T.E.G.C.N v Okoisor (2007) 13 NWLR (1052) 471 at 483; Kashadadi v Noma (2007) 13 NWLR(PT 1052) 501 at 523; Maigoro v. Garba (1999) 7 SC (PT 111) 11 at 19-20; Augustine v. Hogan (2008) 16 NWLR (PT 112) 95 were referred to. Respondents counsel further submitted that the Ruling of the learned trial judge delivered on 23/1/19 is not a final order, by virtue of the reliefs sought by the Appellant in his Notice of Appeal filed on 19/2/19 as follows:
1. An order allowing the appeal
2. An order setting aside the Ruling/Decision of the lower Court made on the 23rd January, 2019.
3. An order restoring the Appellant’s counter-claim.
It was submitted by Respondents’ counsel that by the above reliefs, the Appellant is urging for a restoration of the case. This means that the matter has not been finally disposed off, or determined, simply put, the right of the Appellant has not been extinguished. In this instance, Appellant requires the leave of either the Court below or this Court to appeal, and failure is fatal.
Learned counsel urged this Court to strike out the notice of appeal filed by the Appellant on 19/2/19. He cited the case of Augustine v Hogan (2008) 16 NWLR (pt112) p95 at 11 A-C.
Learned counsel submitted that the sole issue formulated by the Appellant on page 12 of his brief of argument is as follows:
“Having regard to the clear provision of Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), whether the trial Court was right in law to have dismissed the Appellant’s Counter-Claim, without considering and determining the suit on its merit; and whether the decision of the Honourable Court subsequently does not amount to injustice, lack of fair-hearing, miscarriage of justice and a nullity.”
Whereas, the ground of appeal from where the issue is formulated is as follows:
“The learned trial judge erred in law when he dismissed the Appellant’s Counter-Claim for want of diligent prosecution.”
Learned counsel contended that a closer look at the issue distilled from the ground of appeal, one would find that the sole ground of appeal has no semblance nor iota of fair hearing contained therein. That, where the issue formulated in an appeal is in conflict with the ground of appeal where it was distilled from, the trial Court has no business performing a surgical operation to separate them, same must be discountenanced and struck out. He reiterated that since there is no ground of appeal on fair hearing, no issue can emanate or be smuggled into it, or be canvassed therefrom. He cited the case of Achor v Adejoh (2010) 6 NWLR (PT 1191) 537; Adedolapo v Mil Gov Ondo State (2005) 17 NWLR (PT 995) 487.
Learned counsel urged this Court to strike out appeal.
Appellant in his Reply Brief, in response to the preliminary objection, submitted that an appeal is a constitutional right guaranteed under Sections 241 and 242 of the 1999 Constitution of the Federal Republic of Nigeria (as amended). That the present Appeal emanated from the final decision of the trial Court when the Appellant’s counter-claim was dismissed by the trial Court, without any other option to continue with the subject matter of the suit, except the final decision of the trial Court which is being complained about is appealed against by the Appellant.
He submitted that, the Ruling of the lower Court delivered on 23/1/19 is a final decision, as it dismissed the Appellant’s counter-claim and there was nothing further to go back to the lower Court for in respect of the counter-claim. He cited the case of Matter of Secretary of State for Exiting the European Union (Appellant) v Whiteman (Respondent) determined on 20th November, 2018; Jacob Ladipo v Sil Chemical Ltd & 3 Ors (2019) CA/L/808/2017. He urged this Court to hold that the decision made by the trial Court on 23/1/2019, is a final decision and as such by the provisions of Section 241(1)(a) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), appeal is by right and no need of leave of the Court is required to file Notice of Appeal, and that the Notice of Appeal filed on 19/2/2019 is competent, and this Court has jurisdiction to hear, and determine this appeal. He urged us to hold as such and discountenance the argument of the Respondent’s counsel.
On issue for determination formulated from ground of appeal, Appellant’s counsel submitted that the Rules governing the conduct of appeal requires that the issue(s) for determination must be distilled from the ground(s) of appeal, which must in turn flow from the decision of Court being appealed against. The ground of appeal can either be on ground of law, ground of facts or mixed law and facts. He cited the case of lnegwu v Asibbelua (2012) 4 NWLR (pt1289) 119.
It was stated by learned counsel that the decision appealed against by the Appellant was the dismissal of the Appellant’s counter-claim by the trial Court, without hearing same on merit whether the trial judge did not err in law. The trial judge gave the reason of non diligent prosecution for dismissing Appellant’s counter-claim. Learned counsel contended that the reason given by the trial judge, which is non diligent prosecution was also adopted as the sole ground of appeal by the Appellant and is based on law. He reiterated that the sole issue for determination formulated by the Appellant, which was distilled from the sole ground of appeal is on question of law, is the constitutional right of the Appellant to have been heard rather than shutting the Appellant from being heard on the reason of non diligent prosecution, considering the circumstance of the case, and the flagrant disobedience to series of orders of the Court by the Respondents. The issue for determination need not be the exact word of the ground of appeal, but rather it must flow or be formed from the word. He cited the case of Ideozu v Ochoma (2006) 4 NWLR (PT.969) 132. Further to the above contention, learned counsel submitted that an issue for determination in an appeal is a question which is so crucial that if it is decided in favour of a party, he is entitled to win the appeal. Therefore for the issue to be crucial in the determination of the appeal, it must be formed from the ground(s) of appeal, which must have arisen from the decision appealed against. He cited the case of Akindipe v State(2012) 16 NWLR(PT1325) 94.
Learned counsel further submitted that, premised on the decision in Metal Const. (W.A.) Ltd v Migliore (1990)1 NWLR (pt126)299, the sole issue for determination formulated by the Appellant flows from the ground of appeal, which is challenging or complaining about the final decision of the trial Court. And the issue for determination which bother on the fundamental right of the Appellant, whether the trial Court was in breach of same, whether considering the facts, and circumstances of this case, whether the learned trial judge’s decision can be justified, whether the Appellant was given time and opportunity to be heard, before the trial judge held that the counter-claim is dismissed for want of diligent prosecution.
Learned counsel further contended that the Respondents had totally misunderstood, misconstrued and sought to turn the law upside down with their argument. He submitted that it is trite that issues not related to a ground of appeal can still be entertained by the Court if they are fundamental. He cited the case of Idika v Erisi (1988) 2 NWLR 536; Sha v Kwan (2000) 5 SCNJ 104. He reiterated the fact that even in cases where Issues for determination are wrongly formulated or obviously not flowing with the ground of appeal, the Court has unfettered discretion and power to re-arrange, re-modify and re-formulated issues for determination. He cited the case of Okereke v Umahi (2016) 11 NWLR (pt1524) 438; Tarzoor v Ioraer (2016) 3 NWLR (PT.1500) 463; A.I.B Ltd v Integrated Dimensional System Ltd (2012) 7 NWLR (PT1328).
Learned counsel concluding, submitted that the decision of the trial Court of 23/1/19 is final, and not interlocutory, and Appellant’s issue for determination in this suit flows and is formulated from the ground of appeal, therefore same is competent, valid and not an abuse of Court process. Therefore, this Court has jurisdiction to adjudicate on this appeal. He urged this Court to so hold, discountenance all the arguments canvassed by Respondent’s counsel; dismiss the preliminary objection with substantial costs.
Resolution of Preliminary Objection
The Respondent raised preliminary objection, that this Court should strike out this appeal for want of jurisdiction. The grounds of objection raised are that this appeal is interlocutory therefore leave is required to appeal. The Appellant did not seek leave to appeal the Ruling delivered on the 23/1/19.
Central to the resolution of the first ground of objection is whether the decision of the lower Court was final or interlocutory. As evident from the submissions of learned counsel, the consequences of the nature of the decision are different. Where the decision is final, then by Section 241 (1)(a) of the 1999, Constitution, an appeal can be brought as of right irrespective of whether the grounds of appeal are of law alone, or of facts, or mixed law and facts. Where however, the decision is interlocutory, then leave of either the lower Court, or this Court is necessary for an appellant to appeal as stipulated in Section 242 of the 1999 Constitution.
The decision of the lower Court was in respect of the pending counter-claim of the Appellant, in respect of which the learned counsel did not open his case, because his witnesses were not in Court, he was under the impression that the matter was for hearing pending applications, and the lower Court dismissed the counter-claim of the Appellant. The test of determining whether a decision is final or interlocutory is now very well settled. In Alor v Ngene (2007) 17 NWLR (PT 1062) 163 at 178, Tobi, JSC stated:
“Two tests have been laid down for determining whether or not an order of Court is final or interlocutory. They are (a) the nature of the application made to the Court; (b) the nature of the order made. In Nigeria, it is the nature of the order test that has been constantly applied. If the order made finally disposes of the right of the parties, then the order is final. If the order does not, then it is interlocutory. An order is also regarded as final if at once affects the status of the parties, for whichever side the decision may be given, so that if it is given for the plaintiff, it is conclusive against the plaintiff. In order to determine whether or not the decision of a Court is final or interlocutory, the decision must relate to the subject matter in dispute between the parties, and not the function of the Court making the order. See Omonuwa v Oshodin (1985) 2 NWLR (PT10) 924; Abubakar v Dankwambo (2015) LPELR 25698 1 at 22-23 (CA) and Dankwambo v Abubakar (2015) LPELR (25716) 1 SC. 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 “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 Metu vs. FRN & Anr. (2017) 4 NWLR (pt. 1554) 108, Ogolo vs. Ogolo (2006) 5 NWLR (pt. 972)163.
Appeal must be filed within 14 days. The sole issue formulated by Appellant did not emanate from the ground of appeal.
The Appellant on his part contended that the Ruling delivered on 23/1/19 is a final decision, in that it dismissed the pending counter-claim. There was nothing pending before the lower Court.
The Appellant herein, cannot accept that this suit was dismissed by the trial Court for want of prosecution, and yet contend that the dismissal was on the merit. The learned trial judge expressly founded his order of dismissal on Order 30, Rule 3, of the Ekiti State High Court (Civil Procedure) Rules, 2011. This Rule is relevant to this appeal and is reproduced hereunder:- Order 30 (3): “When a cause is called for hearing, if the defendant appears, and the claimant does not appear, the defendant, if he has no counter-claim, shall be entitled to judgment dismissing the action, but if he has a counter-claim, then he may prove such counter-claim, so far as the burden of proof lies upon him.”
If, when a trial is called on the defendant appears, and the plaintiff does not appear, the defendant, if he has no counter-claim, shall be entitled to judgment dismissing the action, but if he has a counter-claim, then he may prove such counter-claim, so far as the burden of proof lies upon him: Provided that if the defendant shall admit the cause of action to the full amount claimed, the Court may, if it thinks fit, give judgment as if the plaintiff had appeared. Any judgment obtained, where one party does not appear at the trial may be set aside by the Court, upon such terms as may seem just, upon an application made within a specified period after the trial, or within such longer period as the Court may allow for good cause shown. These Rules vest jurisdiction on the trial Court to dismiss a suit where the plaintiff fails to appear to lead evidence in his case and further statutorily empowers the Court to set aside any judgment so obtained provided the plaintiff applies for the order setting aside the judgment within the specified period. The trial Court in the exercise of its inherent powers can dismiss a suit for want of prosecution. Where the dismissal is founded on the inherent powers, the dismissal can be equated to a striking out as the suit can be relisted on proper application. See Olowu vs. Abolore [1993] 5 NWLR (Pt. 293) 255, Echaka Cattle Ranch Ltd vs. NACB Ltd [1998] 4 NWLR (Pt. 547] 526 and Akujinwa vs. Nwaonuma [1998] 13 NWLR (Pt.583) 632.
Even as the Court used the expression ‘dismissal’ in its proceedings on the 23/1/19, it would necessarily amount to a striking out since evidence is yet to be led in the case. Where a case is said to have been dismissed in the High Court, but circumstances show that such dismissal could not possibly connote determination as to put an end to the case, such dismissal is viewed as a mere striking out by the Court. See OBMC Ltd v. M.B.A.S Ltd (supra).
It has long been settled by the Supreme Court that the appellate Court will not interfere with the exercise of discretion by a trial judge simply because a litigant complains against such exercise. We can only interfere where there is proof that the discretion exercised was not exercised judicially and judiciously with the result that gross miscarriage of justice had occurred. See Anyah v A.N.N (1992) NWLR Pt… Where a Court is statutorily empowered to dismiss a suit on appeal for want of prosecution, but is silent on the power to relist, the Court acting within the provisions of the statute loses the competence to relist, but that still does not mean that the suit or appeal has been determined on the merit. In the instant case, the trial Court did not become functus officio by reason of its dismissal of the suit for want of prosecution. In this instant appeal, the dismissal of Appellant’s case by the decision of the Court on 23/1/19, accords with the Rules of Court. See Adeniyi v Tina (2019) 16 NWLR (PT1699) 560.
The Ruling of the learned trial judge delivered on 23/1/2019, is based on discretionary power, which requires leave to appeal against it at the interlocutory stage. In this instant case, the Respondents rightly argued that the judgment delivered on the 23/1/19 is an interlocutory decision, therefore the Appellant by the Rules must file the Notice of Appeal within 14 days. But contrary to the Rules, the Notice of Appeal was filed by the Appellant on the 19/2/19, twenty seven (27) days after the Court delivered its decision. Consequently, the Notice of Appeal having been filed out of time was incompetent, null and void.
The nature of Appellant’s ground of appeal challenging the exercise of discretion by trial Court i.e “The learned trial judge erred in law, when he dismissed the Appellant’s counter-claim for want of diligent prosecution” is not a ground of law, but of mixed law and fact requiring leave. Appellant’s failure to obtain leave to appeal herein as required is fatal to the appeal.
The Ruling of the learned trial judge delivered on 23/1/19 is not a final order, by virtue of the reliefs sought by the Appellant.
This means that, the matter has not been finally disposed off. The right of the Appellant has not been extinguished. Therefore Appellant requires leave to appeal, and having failed to acquire the leave, is fatal to the appeal.
There is no ground of appeal on fair hearing, therefore no issue can emanate or be canvassed.
I have gone through the processes filed as compiled in the printed record of appeal before this Court, and as argued by the respondent, there is nothing to show that the appellant obtained the leave of the Court below or this Court before the appellant filed this appeal. For the avoidance of doubt, let me reiterate the well known principles of law governing situations where leave is required and where it is not required before filing an appeal. Leave is not required where appeal is as of right. See Section 241(1) of the Constitution. Secondly, leave is not required where appeal is on question of law alone. See Section 241(1) (b) of the Constitution. I hereunder reproduce Section 241 (1) (b) of the Constitution:- “Section 241(1)
An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases… (b) Where the ground of appeal involves questions of law alone, decisions in civil or criminal proceedings;” In all other situations, leave of Court is required before an appeal can be filed as stipulated by Section 242(1) of the Constitution which provides:- “Subject to the provisions of S.241 of this Constitution, an appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal with the leave of the Federal High Court or that High Court or the Court of Appeal.” When an appellant is appealing on a point of law, that is to say, when his grounds of appeal are grounds of pure law, he appeals as of right but when he appeals on grounds of fact or of mixed law and fact his purported appeal is incompetent, without the requisite leave. SeeErisi v Idika (1987) 4 NWLR (Pt.66) p. 503. Once a ground of appeal is based on facts, or mixed law and facts, the jurisdiction of both the Court of Appeal, and the Supreme Court is ousted and there is no valid appeal unless leave has been sought and obtained to file the ground. Although every citizen may exercise his statutory right of appeal, yet it is the duty of all Courts to see that such right is exercised in strict compliance with the statutory requirements which govern the very existence of an appeal. One of such requirements is the necessity for obtaining in the prescribed manner, leave to appeal to this Court. This is the very requirement which the appellant failed to fulfill in the present case. For this reason, there is no valid appeal before this Court and I so hold. See Mosuro & Anor. v Akinyele 13 WACA 112-113, Ayansina and Anor. vs. Cooperative Bank Ltd. (supra), Shaka v. Salisu (1996) 2 NWLR (pt. 428) 22 at 23, Yakubu v. The Gov. of Kogi State and 4 Ors. (1995) 3 NWLR (Pt. 383) 367, Victoria Okotie-Eboh v. Adola Okotie-Eboh (1986) 1 S.C. 479 at p.487, Co-operative & Commercial Bank Ltd. v. Emeka Ogwuru (1993) 3 NWLR (Pt. 284) 630, 1993 3 SCNJ 54. A look at the ground of the appeal makes it clear that what gave rise to this interlocutory appeal was the order of the trial Court of 23/1/19. See the case of Paul Nwadike v. Cletus Ibekwe (1987) 4 NWLR (Pt. 67) 718 per Nnaemeka Agu JSC at 743. I find further support in the case of Ayansina and Anor. vs. Cooperative Bank Ltd. (supra) (1994) where Nsofor, JCA at pg. 754 had this to say: “Leave” is a condition precedent to the exercise of the right to appeal with leave. It goes, itself, to the question of the jurisdiction of the appellate Court to entertain the appeal. It will be accepted as settled that where this condition precedent is necessary but has not been fulfilled, there is, legally speaking, no appeal.” On the other hand, the case ofIkeazor vs. Ikeazor (1994) 5 NWLR (Pt. 346) 609 at 623. Where the constitutional or statutory leave to appeal is prescribed or required but has not been obtained by the appellant before or after filing his appeal, such an appeal is regarded as incompetent and therefore invalid. In this instant case, there being no leave of the lower Court, or of the Court of Appeal first had and obtained before or after filing, it was incompetent and should be struck out. See the cases of Nigerian Air Force v. Shekete (2002) 18 NWLR (Pt.798) 129; Hassan v. Atanyi (2002) 8 NWLR (Pt 770) 581, Okon v. Ekanem (2002) 15 NWLR (Pt.789) 106. The consequence of not obtaining such leave was clearly stated by the Supreme Court in the case of Nigerian National Supply Company Limited v. Establishment Sima Vaduz (1990) 7 NWLR (Pt. 164) at 538, also reported in (1990) 3 NSCC 526 at 527. Also relevant is the case of Ifediorah v. Ume (1988) 2 NWLR (Pt. 74) 5 at p. 16, UBA v. G.M.B.H. (1989) 3 NWLR (Pt. 110) 374, p. 582, para. F – H. The Respondent’s preliminary objection on grounds A, B, C ,D and E have merit and are hereby upheld. Having upheld the preliminary objection as having merit, to go further to consider the arguments in respect of the issue formulated for determination would be a waste of time as there is no appeal pending. See Chief Bright Onyemeh and 2 Ors. v. Lambert Egbuchulam (1996) 4 SCNJ 237 at 249; (1996) 5 NWLR (Pt.448) 255 at 268 and NEPA v. Ango (2001) 15 NWLR (Pt. 737) at 627; 646. Bound by the judicial precedents laid by our superior Courts of record, I hereby uphold the preliminary objection raised by the respondents in holding that there is no valid notice of appeal and naturally no valid ground of appeal before this Court as to confer jurisdiction on this Court.
This appeal is consequently struck out. I access costs at N50,000.00 in favour of the Respondents.
THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I agree.
PAUL OBI ELECHI, J.C.A.: I agree.
Appearances:
Stephen Ademuagun, Esq. For Appellant(s)
M Ogunmoroti, Esq., with him, T. Kolawole, Esq., A. Adeleke, Esq., O. Oyebanji, Esq., and O. Fagbohun, Esq. For Respondent(s)
