VICTOR O. ABBEY & ANOR v. RIVERS STATE HOUSING AND PROPERTY DEV. AUTHORITY & ORS
(2010)LCN/3825(CA)
In The Court of Appeal of Nigeria
On Thursday, the 27th day of May, 2010
CA/PH/322/2005
RATIO
APPEAL: REQUIREMENTS FOR FILING AN APPEAL
By section 242 (i) of the Constitution of Nigeria, 1999, it is provided as follows.
“242(1) subject to the provisions of Section 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.”
(Underlined is mine)
From the above constitutional directives, did the appellants seek the requisite leave? The answer is in the negative. Infact, the appellants are of the wrong view, that the appeal ruled at the lower trial court was, a final decision, which is completely misconceived. By section 24(2) (a) of the Court of appeal Act, 2004, a party wishing to appeal to the Court of appeal against an interlocutory ruling of the lower court as in the instant appeal, must file the Notice of appeal within 14 days from the date the interlocutory ruling was delivered or with the express leave of this court within any extended time, see Dide v. Seleketimibi (2010) ALL FWLR (PT.509) 583 at 599 paras C-E; Ikweki v. Ebele (2005). ALL FWLR (Pt.257) 1401; Fagunwa v. Adibi (2004) ALL FWLR (Pt226) 340; Boiser v. Kachala (2006)1 NWLR (Pt.962) 587; Adebanjo v. Ogun State Sport Council (2005) ALL FWLR (Pt.279) 1319. PER ISTIFANUS THOMAS, J.C.A
APPEAL: ATTITUDE OF THE APPELLATE COURT TOWARDS PROLIFERATION OF ISSUES
It is well settled that proliferation of issues is offensive to the rules of appellate courts. An appellant or respondents brief have no right to raise more issues than the grounds of appeal; see S.C.O.A.(Nig) Plc v. Mohammed (2004) 4 NWLR (Pt.862) 20; Ugwunze v. Adeleke (2008) 2 NWLR (Pt. 1070) 148; Agwarambgo v. Idumogu (2008) 5 NWLR (Pt.1081) 564. PER ISTIFANUS THOMAS, J.C.A
APPEAL: EFFECT OF AN ISSUE NOT RELATING TO THE GROUNDS OF APPEAL
Every issue raised for determination must relate to grounds of appeal, failing which the issues will be struck out, see Audu v. Guta (2004) 4 NWLR (Pt864) 463; Ibrahim v. N.U.B. Ltd (2004) 11 NWLR (Pt.885) 537 and Hajaiq v. Hajaiq (2004) 13 NWLR (Pt.249). PER ISTIFANUS THOMAS, J.C.A
ORDER: TEST FOR DETERMINING IF AN ORDER IS INTERLOCUTORY OR FINAL
As the Supreme court (per Karibi-whyte, JSC) held in OMONUWA v. OSHODIN (1985) 1 NSCC 147; (1985) 2 NWLR [pt.10] 924, relying on BLAKEY v. LATHAM (1989) 43 Ch.D 23 at page 25, that any order which does not deal with the final rights of the parties, but merely directs how the parties are to proceed in order to obtain that final decision is interlocutory. A judgment or order, according to Lopes, J in SALMAN v. WARNER (1891) 1 D.B 734 at 736, cited with approval in OMONUWA v. OSHODIN (supra), would be final within the meaning of the rules, when, whichever way it went, it would finally determine the rights of the parties.
No order is final unless the decision upon which it has arisen has conclusively determined the matter in dispute. The real test therefore is whether the decision or order as made, has finally disposed of the rights of the parties. If it does, then the order should be treated as a final order; but if it does not, it is then treated as an interlocutory order. See BOZSON v. ALTRINCHAM URBAN DISTRICT COUNCIL (1903) 1 KB 547, also cited with approval in OMONUWA v. OSHODIN (supra). What is important to consider, according to Eso, JSC in AKINSANYA v. UBA LTD (1986) 4 NWLR [Pt.35] 273 is the nature of the order made, and not the nature of application from which the order was made. Applying this test in AKINSANYA v. UBA (supra) therefore, from the nature of the order made by Ebete, J on 22nd September, 2004, the order was clearly interlocutory. The order did not finally and conclusively determine the rights of the parties, nor did it alter their status quo in the suit or dispute. A decision or order, as the instant, that merely decided issue(s) but not the final rights or status of the parties in dispute is an interlocutory order. PER EJEMBI EKO, J.C.A
JUSTICES:
SULAIMAN GALADIMA (OFR) Justice of The Court of Appeal of Nigeria
ISTIFANUS THOMAS Justice of The Court of Appeal of Nigeria
EJEMBI EKO Justice of The Court of Appeal of Nigeria
Between
1. VICTOR O. ABBEY
2. MRS. MARIA ABBEY – Appellant(s)
AND
1. RIVERS STATE HOUSING AND PROPERTY DEV. AUTHORITY
2. LT. COL. S.R. INOKOBA (RTD)
3. E.C.OKORJI. – Respondent(s)
ISTIFANUS THOMAS, J.C.A (Delivering the Leading Judgment): The appeal is against the ruling of E. N. T. Ebete (J), sitting at port Harcourt High court which was delivered on 22-9-2004 in which the learned trial judge granted the defendants/respondents application setting aside his judgment which was delivered on 30-1 -2004 and relisting the suit for hearing on its merit.
The brief history of the case is that the appellants were the plaintiffs at the lower court presided by Olukole, J of blessed memory. By then, the defendants were, first the Rivers State Housing and Property Development Authority 2nd. Lt. Colonel S.R. Inokoba, (RTD), 3rd. Mrs. Comfort Ikoli, 4th. E.C. Okorji and 5th, the Attorney General of Rivers State.
All parties filled and exchanged pleadings and the trial proceeded, but, the suit had to be transferred to Hon. Justice Ebete, due to the demise of Hon. Justice Olukole. The case therefore commenced de novo, and the lower court ordered that fresh hearing Notice be served on the defendants, now respondents. There was no sufficient evidence to prove that the trial courts’ order for hearing notice on the respondent; was properly carried out. The case continued, and on 30-1-2004, the lower court delivered its judgment in favour of the present appellant and against the present respondents only. The other defendants were not found liable, hence only the respondents filed on 14-07-2004 a motion on notice seeking the trial judge to set aside the decision delivered on 30-01-2004 on the ground that, the trial court’s order for hearing notices were never served on them. The present appellants filed a preliminary objection to the motion and filed a counter affidavit in opposition and all these are contained at pages 66 – 69 of the record. The appellants showed hearing notices said to have been served on the respondents through the 1st respondent’s staff. These assertions were vehemently denied by the respondents. The trial judge accepted the respondents’ motion, especially the affidavit in support which was premised on non service of hearing notices as ordered by the trial judge. Based on his finding that there was no proper service of hearing notices on the respondents, the trial judge granted the motion to set aside his earlier judgment which was delivered on 30-01-2004.
His Lordship on 27-09-2004 relisted the suit for hearing on merits on the ground that the previous judgment was obtained on default of serving hearing notices on the respondents. Dissatisfied with the ruling, the appellants, filed on 9-10-2004, their notice of appeal containing 3 grounds of appeal. By the leave of this court, the appellant’s original notice of appeal was amended by deleting one ground leaving only two grounds of appeal. The appellants also applied for and were granted leave to amend their brief of argument which was deemed filed on 7-10-2004. From the two amended grounds of appeal, the appellants have surprisingly raised 4 issues for determination and they read as follows:-
“1. Should the learned trial judge have made the order dismissing the appellant’s preliminary objection to the competence of the court’s jurisdiction without considering or take judicial notice of the grounds for which the objection was raised.
2. Whether the ruling/decision of the learned judge: was not entered in total disregard to his being functus officio with respect to suit No. PHC/656/91 having delivered his final judgment, and the respondent’s application having not been brought by an originating summons or originating motion.
3. Whether the learned judge made proper evaluation of affidavits evidence before him and facts contained in the court’s record he was referred to or ought to have had judicial notice of.
4. Whether the decision of the learned judge, which he dismissed the plaintiffs/ applicants (appellants herein) objection to his jurisdiction in hearing the respondents application to inter alia set aside his final judgment, is a final decision or interlocutory”
On service of appellants brief, the respondents filed on 23-10-2008, their brief of argument. It contains two issues for determination and they read as follows:-
1. Whether the learned judge was functus officio and so lacking jurisdiction when he entertained the respondents’ application dated 14-07-04 seeking to set aside his earlier judgment delivered on 30-01-04 (ground one).
2. Whether having regard to the materials and the totality of the evidence before the trial court and the law, the learned judge was in error in granting respondents application setting aside this earlier judgment (ground two)”
Before he delved into arguments on respondents brief, learned counsel moved into their Notice of Preliminary objection which is premised on Section 24 (2) (a) of the Court of Appeal, Act, Laws of the Federation of Nigeria, 2004 and Section 242 (1) of the Nigeria Constitution 1999 and order 6 rule 6, Order 7 rule 1 and Order 1 and Order 10 rule 1 of the Rules of this court, 2007. The respondent’s objection is on the ground that this honourable court lacks the requisite jurisdiction to entertain this appeal; and that this appeal is incompetent and should be struck out. On receipt of the respondent’s; brief of argument containing the preliminary objection, learned counsel for the appellants filed on 03-11-2008, appellants reply brief.
At this stage, I deem it necessary to consider the respondents preliminary objection first because, it is settled law that where a preliminary objection succeeds, there would be no need to go further to consider the arguments in support of the issues for determination, see NEPA v. ANGO (2001) 15 NWLR (Pt 737) 627; ANPP v. The Returning Officer, Abia Sen. District (2005) 6 NWLR (Pt.920) 140 APELEKAN v. ECU-2 INE NV (2006) 12 NWLR (Pt 993) 33,
The respondent’s objections are contained in paragraph 4. 03 of the respondents brief, and the further grounds are as follows:
1. The ruling of the lower court appealed against was delivered on 22-09-2004 and therefore an interlocutory appeal matter. That this interlocutory appeal was filed on 19/10/04, more than 14 days after ruling was delivered and there was no application by the appellant seeking for extended periods to lodge appeal. That therefore this court lacks jurisdiction to entertain the appeal.
2. That the two grounds of appeal as contained in the amended notice of appeal are both grounds of facts and or mired law and facts, that no leave was obtained to bring this, interlocutory appeal Pursuant to Section 242 (1) of the Constitution, 1999
3, That the appellant’s two grounds of appeal have no valid issues covering them. That the four issues raised by the appellant are manifestly unarguable and utterly unreasonable, and that the four issues are not related to the two grounds of appeal.
Learned counsel for the respondents referred to numerous decisions of the Supreme Court and this court in support of his argument that the preliminary objection should be sustained.
Kogi State House of Assembly (2005) ALL FWLR 1360; Tiza v. Begha (2005) 15 NWLR (Pt 949) 616.
The respondents further argued in his objection to the appeal on the ground that the ruling appealed against is an interlocutory ruling since it did not put an end to the claim of the parties. Counsel referred to and relied on the decisions in Excel Plastics Industry Ltd v. FBN Plc (2005) ALL FWLR (Pt.279) 139.
At this stage, it is very necessary on me to ascertain whether the ruling of the lower court delivered on 22-09-04 was a final decision or interlocutory ruling. The ruling was based on the judge’s finding that he had to set aside his judgment on the fact that there was no hearing notice on the other side. It is not in doubt that a court of record has the absolute discretion to set aside his ruling or judgment but based on the rules of that court. In the instant appeal, the rule of the High Court of Rivers State is the anchor. By Order 37 rule 9 of the Rules of that Court it provides as follows:-
“O.37 R 9 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 six days after the trial or within such longer period as the Court may allow for good cause shown.
From the above quoted rules of the High Court, the conditions for setting aside are four, namely (a) one party does not appear at the trial, (b) an application made within 6 (six) days after delivery of judgment (c) or within such longer period as the court may allow and (d) showing good cause why the other party could not attend the hearing.
The respondents’ reasons for failing to appear during the trial court’s proceedings are stated in their application for that court to set aside the earlier judgment. The main reason is that they were not served hearing notice on the entire proceedings when the trial judge had to commence the case de novo. Now by making an order, setting aside its judgment being power of discretion donated by Order 37 r 9 of that court, the parties’ claims had not been determined.
The claim of the appellants initially filed at the lower court was certainly left for the future; hence the judgment was set aside and fixed for hearing on merits. Once a matter is determined not on merit, that decision is a nullity. In the instant appeal, the judgment delivered on 30-01-04, was not on merit because, the respondents were not duly served the hearing notice. Since the ruling setting aside the judgment was based on fair reason to hear the parties claims, the ruling was therefore an interlocutory ruling, see Excel plastics Industry Ltd v. FBN PLC (2005) ALL FWLR (Pt.279) 1393; Omonuwa v. Oshodi (1985) 2 NWLR (Pt.10) 924.
In the case of Omonuwa v. Oshoodi (supra) at page 938, the Supreme Court, per Karibe Whyte, JSC, has clearly stated that, where a trial court has not finally determined the issues litigated by the parties, an interlocutory order on appeal will be ranked as an interlocutory appeal. That Supreme Court’s decision that an appeal on interlocutory ruling as in the instant appeal is still the Position of law.
Since I have determined that the ruling on 22-09-04 was an interlocutory matter and therefore an interlocutory appeal, I have to determine whether the appellant had appealed within the statutory period of filing notice of appeal. The appellants filed their notice of appeal on 19-10-04 and therefore that shows that the appeal was filed 28 days after the ruling was delivered. By section 242 (i) of the Constitution of Nigeria, 1999, it is provided as follows.
“242(1) subject to the provisions of Section 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.”
(Underlined is mine)
From the above constitutional directives, did the appellants seek the requisite leave? The answer is in the negative. Infact, the appellants are of the wrong view, that the appeal ruled at the lower trial court was, a final decision, which is completely misconceived. By section 24(2) (a) of the Court of appeal Act, 2004, a party wishing to appeal to the Court of appeal against an interlocutory ruling of the lower court as in the instant appeal, must file the Notice of appeal within 14 days from the date the interlocutory ruling was delivered or with the express leave of this court within any extended time, see Dide v. Seleketimibi (2010) ALL FWLR (PT.509) 583 at 599 paras C-E; Ikweki v. Ebele (2005). ALL FWLR (Pt.257) 1401; Fagunwa v. Adibi (2004) ALL FWLR (Pt226) 340; Boiser v. Kachala (2006)1 NWLR (Pt.962) 587; Adebanjo v. Ogun State Sport Council (2005) ALL FWLR (Pt.279) 1319. I entirely agree with the argument of the learned counsel for the respondents that it is settled law that where any appeal is begun other than as provided by the constitution of Nigeria in sections 241 and 242 (1) and section 24(2) of the court of Appeal Act, 2004, such an appeal is incompetent, See Gbasha v. Lovebet (Nig) Ltd (2005) 15 NWLR (Pt.949) 551). In the instant appeal, no leave was sought at the lower court or this appellate court for extension of time to file the interlocutory appeal since leave to appeal is a precondition precedent to the filing of the appeal which has not been obtained, it means this court lacks the requisite jurisdiction to entertain same, because issue of jurisdiction of the court is the livewire and fundamental to the adjudication of a suit. Lack of jurisdiction is an incurable vice. Without jurisdiction the proceedings and any subsequent judgment to be delivered by a court or tribunal or appellate court will be rendered a nullity, see Madukolu v. Nkemdilim (supra); Adisa Oyinwola (2000) FWLR (Pt.8) 13 49; Abdulsalam v. Salwu (2002) FWLR (Pt.117) 1103; Obayiuwana v. Ede (1998) 1 NWLR (Pt.535) 670; Ogbu v. Orum (181) 4 SC 1 and Action Congress v. Manzo (2010) ALL FWLR (Pt. 503) 1349 at 1360.
By rules of stare decisis, this appellate court is bound to follow the decisions of the Supreme Court in relation to an issue or issues determined therein. In Madukolu v. Nkemidilm (supra) any defect in competence is fatal no matter how well conducted the case might be. In the instant appeal, this appellate court lacks the competence to exercise jurisdiction to hear this appeal, see Odofin v. Agu (1992) 3 NWLR (Pt.229) 330, and I so declare. This would have been the end of the matter by sustaining preliminary objection raised and argued by the respondents, but I deem it necessary to make my considered views on the appellant’s two grounds of appeal from which he distilled and formulated four (4) issues for determination which, I reproduced much above. It is well settled that proliferation of issues is offensive to the rules of appellate courts. An appellant or respondents brief have no right to raise more issues than the grounds of appeal; see S.C.O.A.(Nig) Plc v. Mohammed (2004) 4 NWLR (Pt.862) 20; Ugwunze v. Adeleke (2008) 2 NWLR (Pt. 1070) 148; Agwarambgo v. Idumogu (2008) 5 NWLR (Pt.1081) 564. Since the appellant raised four issues out of the two grounds of appeal, it is not the duty of the appellate court to select which issue or issues to be determined. Moreover, in the instant appeal, the appellant has not shown which issue is related to a particular ground of appeal. Not only that the four issues raised by the appellant are not bound to be determined, except if the issues are relevant. A court of record is not bound to consider all issues raised before it, see the Supreme Court decision in Okotie-Eboh v. Manager (2004) 18 NWLR (Pt.905) 242. Every issue raised for determination must relate to grounds of appeal, failing which the issues will be struck out, see Audu v. Guta (2004) 4 NWLR (Pt864) 463; Ibrahim v. N.U.B. Ltd (2004) 11 NWLR (Pt.885) 537 and Hajaiq v. Hajaiq (2004) 13 NWLR (Pt.249).
Finally, the two grounds of appeal are grounds of fact and mixed law because the particulars of the grounds of appeal have revealed that they are at best mixed law and facts. In ground one, the particulars are also as follows:-
“i. The learned judge, having delivered his final judgment …. on 30-01-04 became functus officio ….He ceases to be seized of that matter and he can not re-open it on an application made under statute………..
ii. The trial judge exercised jurisdiction in entertaining the defendants/applicants application ……..to inter alia set aside his final judgment even when the application was not initiated by due process of law.
iii. The learned trial judge wrongly assumed jurisdiction when he determined the right of the ….. to approach the court…… when he dismissed, on merit the ….. appellants preliminary objection to the courts jurisdiction.”
(Underlined are mine for emphasis).
From the above underlined phrases in the appellant’s particulars in ground one, I am of the solid ground that they are mixed law and facts, and therefore, there is need for leave to file and argue the grounds in accord with section 242 (1) of the constitution of Nigeria, 1999. Having failed to obtain leave, the notice of appeal containing the grounds of appeal, is completely incompetent and l hereby struck out the notice of appeal.
Having reached this state, the inevitable out come is that, the respondent’s preliminary objection is hereby sustained. The trial court’s ruling made on 22-09-2004 in which he set aside his earlier judgment and ordered that the suit would be heard on merit is hereby affirmed by me. The learned judge has inherent jurisdiction to entertain an application to set aside his default judgments since it was not determined on merit. He was not functus officio to set aside his judgment, because that power to set aside his judgment is donated by the statute- namely order 37 rule 9 of the Rules of Rivers State, 1987.
The appeal is completely dismissed, Cost of N50, 000.00 in favour of the respondents and against the appellants.
SULEIMAN GALADIMA, J.C.A (OFR): I have had the privilege of reading in advance the Judgment of my Learned Brother, Thomas JCA, just delivered. I am in entire agreement with him that the Appeal is lacking in merit. I too, will dismiss it with costs of N50,000.00 in favour of the Respondents herein.
EJEMBI EKO, J.C.A: The appellant captured the core issue for determination in this appeal. The issue is whether the decision of the lower court delivered on 22nd September, 2004 was a final or interlocutory decision.
Hon. E.N.T. Ebete, Judge of the lower court, had on 22nd September, 2004, acting under order 37 Rule 9 of the Rules of the Lower court, set aside the default judgment delivered on 30th January 2004 and re-listed the suit no. PHC/656/91 for hearing de novo.
Aggrieved by this decision/order the appellant lodged his appeal against it by the notice of appeal filed on 19th October, 2004. The notice of appeal was filed 28 days after the decision/order made on 22nd September, 2004.
My learned brother, I. Thomas, JCA, in the lead judgment resolved the core issue. He held, and I agree, that the decision/order of the lower court (Coram E.N.T. Ebete, J) delivered on 22nd September, 2004 was an interlocutory decision. As the Supreme court (per Karibi-whyte, JSC) held in OMONUWA v. OSHODIN (1985) 1 NSCC 147; (1985) 2 NWLR [pt.10] 924, relying on BLAKEY v. LATHAM (1989) 43 Ch.D 23 at page 25, that any order which does not deal with the final rights of the parties, but merely directs how the parties are to proceed in order to obtain that final decision is interlocutory. A judgment or order, according to Lopes, J in SALMAN v. WARNER (1891) 1 D.B 734 at 736, cited with approval in OMONUWA v. OSHODIN (supra), would be final within the meaning of the rules, when, whichever way it went, it would finally determine the rights of the parties.
No order is final unless the decision upon which it has arisen has conclusively determined the matter in dispute. The real test therefore is whether the decision or order as made, has finally disposed of the rights of the parties. If it does, then the order should be treated as a final order; but if it does not, it is then treated as an interlocutory order. See BOZSON v. ALTRINCHAM URBAN DISTRICT COUNCIL (1903) 1 KB 547, also cited with approval in OMONUWA v. OSHODIN (supra). What is important to consider, according to Eso, JSC in AKINSANYA v. UBA LTD (1986) 4 NWLR [Pt.35] 273 is the nature of the order made, and not the nature of application from which the order was made. Applying this test in AKINSANYA v. UBA (supra) therefore, from the nature of the order made by Ebete, J on 22nd September, 2004, the order was clearly interlocutory. The order did not finally and conclusively determine the rights of the parties, nor did it alter their status quo in the suit or dispute. A decision or order, as the instant, that merely decided issue(s) but not the final rights or status of the parties in dispute is an interlocutory order.
Section 24 (2) (a) of Court of Appeal Act 2004 stipulates various periods for giving notices of appeal where appeals are against interlocutory and final decisions. It states –
24. (2) the periods for giving notice of appeal or notice of application for leave to appeal are –
(a) in an appeal in a civil cause or a matter, fourteen days where the appeal is against an interlocutory decision and three months where the appeal is against final decision
This appeal being one against an interlocutory decision must be filed within 14 days unless the appellant obtained an order extending the time. There is none in this case. The appeal, filed 28 days after the interlocutory decision, is therefore incompetent. See DIDE v. SELEKETIMIBI (2010 ALL FWLR [Pt.509] 583. The court will not have valid jurisdiction over this appeal if the notice of appeal is invalid or incompetent. See MADUKOLU v. NKEMDILIM (1962) 2 SCNLR 341; MACFOY v. UAC (1962) A.C. 152. A process filed outside the prescribed period is a nullity and liable to be struck out:
INEC v. OKONKWO (2009) ALL FWLR [pt.488] 227.
It is my firm view that this appeal is incompetent. The preliminary objection is well grounded. The appeal is hereby struck out. I also order the appellants to pay, as costs, N50,000.00 to the respondents.
Appearances
Mr. Arthur Vincent Amachree with P.B. Soberekon For Appellant
AND
Mr. Wilcox Abereton with Mrs. N Ofurum For Respondent
