PETER IHEJIRIKA & ORS v. SIR CHARLES OBIYO ABAKPORO IHEANACHO & ANOR (2018)

PETER IHEJIRIKA & ORS v. SIR CHARLES OBIYO ABAKPORO IHEANACHO & ANOR

(2018)LCN/11764(CA)

In The Court of Appeal of Nigeria

On Monday, the 25th day of June, 2018

CA/OW/116/2017

RATIO

WHEN IS AN APPEAL INCOMPLETE?

DISTINCTION BETWEEN AN INTERLOCUTORY ORDER AND A 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 per RAPHAEL CHIKWE AGBO, J.C.A.

JUSTICES

RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria

AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria

ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria

Between

PETER IHEJIRIKA & ORS Appellant(s)

AND

SIR CHARLES OBIYO ABAKPORO IHEANACHO & ANOR Respondent(s)

RAPHAEL CHIKWE AGBO, J.C.A. (Delivering the Leading Judgment):

The appellants are defendants in suit No. HOW/31/2005 pending at the High Court of Imo State sitting at Owerri. In the suit the plaintiff are laying claim to property known as No. 40 Wetheral Road Owerri. Issues were joined and pleadings exchanged. By a motion filed on 28-11-2016, the appellants prayed the trial Court to dismiss or strike out the case for want of jurisdiction. The ground for seeking this order was that the action was statute barred. Affidavits and written addresses were exchanged by the parties. The trial Court heard the motion and on 14th February 2017 delivered its ruling dismissing the application. Dissatisfied with this ruling, the appellant filed this appeal.

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 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 & Anr. 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.
The ruling being challenged did not determine the rights of the parties in the suit. It is clearly interlocutory. The appellants had only 14 days within which to file their notice of appeal. The appellant s notice of appeal was filed 31 days after the delivery of the ruling. They did not seek nor obtain extension of time within which to appeal. The notice of appeal filed on 17-3-17 was clearly incompetent. This appeal is struck out for want of competence. N30,000.00 costs to the Respondent.

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I agree

ITA GEORGE MBABA, J.C.A.: I agree with the reasoning and conclusions of my learned brother, AGBO JCA (PJ) In the lead judgment that the appeal lacks merit.

The case law is replete with decisions, that where Appellant fails to seek and obtain leave to appeal (as is the case) against an interlocutory appeal, (where the ground(s) of appeal is not on law, alone) the failure is fatal, as the appeal is incomplete. See Garuba Vs Omokhodion (2011) 15 NWLR (Pt. 1269) 145; Anachebe Vs Ijeoma & Ors (2014) LPELR – 23181 (SC) Allanah & Ors Vs Kpolokwu & Ors (2016) LPELR – 40724 SC.

I too strike out the appeal and abide by the consequential orders in the lead judgment.

Appearances: