Alhaji Akanji Junaid V. Abacus Securities Ltd & Anor. (2007)
LawGlobal-Hub Lead Judgment Report
PAUL ADAMU GALINJE, J.C.A.
The Appellant/Applicant herein by his writ of summons dated 24th of July 2000 and a statement of claim dated 17th July 2000, claims from the Respondents jointly and severally the sum of N3,100,000.00 (Three Million and One Hundred Thousand Naira) together with interest thereon at 21% per annum from February 1995 to judgment and final liquidation at the High Court of Lagos State (Henceforth to be referred to as the lower Court). While the suit was pending the 2nd Respondent filed a motion on notice dated 31st of May 2002 at the lower Court in which he prayed for the following reliefs: –
“1. An order striking out the second defendant’s name from the Writ of Summons and such other places it appeared in this suit, for misjoinder/wrongly (sic) joinder of parties.
- An order setting aside the Writ of Summons and statement of claim filed in this suit as it disclosed no cause of action against the 2nd Defendant herein.”
This application was heard and in a considered ruling which was delivered on the 27th February 2004, Oyekan-Abdullahi J. struck out the 2nd Defendant’s name from the suit on the ground that no cause of action was disclosed against him.
The Appellant is unhappy and aggrieved with that ruling and has filed a notice of appeal dated and filed on the 6th April 2004. Flowing from the notice of appeal aforesaid, the Appellant has brought this application dated and filed on the 27th September 2006 in which he prayed for the following reliefs: –
“1. An order of this Honourable Court granting the Appellant/Applicant leave to amend the grounds of appeal contained in the notice of Appeal dated and filed on 6th April 2004 against the decision of the High Court of Lagos State dated 27th February 2004 by adding thereto an additional ground of appeal No. (2) as set forth in the amended Notice and Grounds of appeal exhibited in the affidavit filed herewith.
- An order of this Honourable Court deeming the amended notice and grounds of appeal filed herewith to have been duly filed and served.”
When this application came up for hearing on the 20th November 2006, Mr. C. A. Nwosu, learned counsel for the Respondents indicated that he would be raising objection to the hearing of the application on the ground that the appeal itself is incompetent. He however allowed the applicant to move the application before the preliminary objection.
Mr. Alionye, learned counsel for the Applicant identified the applicant’s application which is supported by a 10 paragraphs affidavit and two exhibits, namely, the original notice of appeal and the amended notice of appeal which are marked exhibits 001 and 002 respectively. He relies on all the paragraphs of the affidavit and the exhibits and urged the Court to grant the application.
At this stage, Nwosu Esq. of counsel to the Respondent submitted that the appeal itself is incompetent as such the ground of appeal cannot be amended. In a further argument, learned counsel submitted that the appeal before the Court is an interlocutory appeal which, by section 25 of the Court of Appeal Act 2004, ought to have been brought within 14 days. Failure to file the appeal within 14 days has rendered same a nullity. Learned counsel finally urged this Court to dismiss both the appeal and the motion.
In reply Alionye Esq. of counsel to the applicant submitted that at the lower Court, the Applicant sued several defendants and the Court gave judgment that there was no cause of action against one of them. By that judgment, learned counsel further submitted, the 2nd Respondent ceased to be a party to the suit and the applicant no longer had any remedy against him. In support learned counsel cited Western Steel Works Ltd v. Steel Workers Union of Nigeria (1986) 6 SC 35 at 52-54.
Finally counsel urged the Court to grant the application and dismiss the Respondent’s objection.
The procedure for raising a preliminary objection to the hearing of appeal is provided for by Order 3 rule 15 (1) of the Court of Appeal Rules 2002. This Order provides as follows:-
“A respondent intending to rely upon a preliminary objection to the hearing of the appeal shall give the appellant three clear days notice thereof before the hearing, setting out the grounds of objection, and shall file such notice together with twenty copies thereof with the Registrar within the same time.”
The basis of the objection to this application is the alleged incompetence of the appeal itself. The Applicant’s objection is not in conformity with the provision of Order 3 rule 15 (1) of the rules of this Court. I would have declared the objection incompetent, if same is not challenging the jurisdiction of this Court to hear the application. Once the competency of a procedural step is challenged, it means that the jurisdiction of the Court to determine the procedural step is put in issue. It is therefore fundamental for the Court to consider the issue of jurisdiction, when it is put before it as doing otherwise when it has no jurisdiction will render the exercise a nullity. See Amoo v. Alabi (2003) 12 NWLR (pt. 835) 537.
In the instant application, I have to consider whether the notice of appeal dated and filed on the 6th of April 2004 was filed within the prescribed period, before taking a decision on whether to grant or not to grant the application for additional ground of appeal. This is obvious because if the notice of appeal is incompetent the original ground of appeal becomes incompetent and will not admit of any addition of any ground of appeal.
By Section 25 of the Court of Appeal Act 2004 the periods prescribed for appealing against a final decision is 90 days and 14 days for interlocutory decisions. It follows therefore that any appeal filed outside these periods is incompetent unless leave of the Court is obtained in order to do so. See Ogige v. Obiyan (1997) 10 NWLR (pt.524) 179; Adeyemi v. Y. R. S. Ikeoluwa and Sons Ltd (1993) 8 NWLR (pt 309) 27.
In the instant application in order to determine whether the appeal was filed within the prescribed period, it must be determined first whether the appeal is against a final or interlocutory decision.
In a plethora of decided cases in this country the Supreme Court has consistently applied the “nature of the order made” test as opposed to “the nature of the proceedings” test in our Courts. These tests were formulated by the Courts in the English cases of Bozson v. Altrincham U.D.C. (1903) 1 K.B. 547 and Salman v. Warner (1891) 1 Q.B 734. In order to determine whether a decision 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. The proper test is therefore the one that does not look at the nature of the proceedings resulting in the order in question. In other words it is immaterial that the order made resulted from an interlocutory application or proceeding. The nature of the order made will determine the rights of the parties in the proceedings in issue and not whether the rights of the parties in the substantive action have been fully disposed of.
See Lambert Sunday Iwuche v. Imo Broadcasting Corporation (2005) ALL FWLR (pt. 288) 1025; Igunbor v. Afolabi (2001) FWLR (pt.59) 1284; Adegbenro v. Akintola (1962) ALL NLR 442 and Afuwape v. Shodipe (1957) 2 FSC 62.
In E. O. Faiola v. Union Bank of Nigeria PLC (2005) ALL FWLR (pt.257) 1435 Edozie JSC quoted with approval, a portion of the judgment of Karibi Whyte JSC in Igunbor v. Afolabi (Supra) on the distinction between a final and an interlocutory judgment as follows:-
“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 determine the litigation as to all the parties on the merit. 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 issues or settles some stage or question, but does not adjudicate the ultimate 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.”
In that case of FaIola v. Union Bank (Supra), the ruling in an interlocutory motion which ordered the Appellant to be joined as co-administrator with the Respondents was held to be a final order since it determined the rights of the parties in the application and there being nothing else that required any answer from either the Court that delivered the ruling or any other Court of co-ordinate jurisdiction.
In Akinsanya v. U.B.A. (1986) 4 NWLR (pt. 35) 233 at 298, Eso JSC said: –
“Once there is no further reference to a Court after it has made its order that something be done according to the answer to the enquiries, all the rights and not just an issue or some issues, have been determined. In which case, in a Court of Appeal, it is in regard to the proceedings before that Court, that would determine whether the matter is final or interlocutory…”
What then is the subject matter in controversy in the application against which ruling the notice of appeal dated and filed on 6th April 2004 lies. Even at the risk of repetition, I wish to set out the prayers in that application as follows:
“1. An order striking out the 2nd defendant’s name from the writ of summons and such other places it appeared in this suit, for misjoinder/wrongly (sic) joinder of parties.
- An order setting aside the writ of summons and statement of claim filed in this suit as it disclosed no cause of action against 2nd Defendant herein.”
As far as these prayers are concerned, the rights of the parties have been effectively determined by the lower Court. The lower Court has nothing more to do with the issue of the joinder of the 2nd Respondent to the suit. I am of the firm view that the ruling of the lower Court on the prayers as set out above, is a final order, and so I hold. This being so, by Section 25 of the Court of Appeal Act, the applicant has 90 days within which to appeal. The ruling in question was delivered on the 27th February 2004 and the appeal against that ruling was filed on the 16th of April 2004, a period of about 38 days from the date of the ruling. Clearly the appeal is within the prescribed period.
I find the preliminary objection baseless and accordingly same is hereby dismissed.
Having disposed of the preliminary objection, the application is without any objection. However, the first prayer of the applicant is for amendment of the ground of appeal contained in the notice of appeal dated 6th April 2004. In the amended notice of appeal, exhibit 002, the original ground is not amended, rather an additional ground of appeal is filed. I think this is a bit of a confusion. I think the prayer would have read thus “An order of this Honourable Court granting the Appellant/Applicant leave to file and argue additional grounds of Appeal…” This I believe will better explain the intention of the Applicant. However this is a matter of semantics which will in no way affect the validity of this application.
Having perused the application, I find no impediments against its grant. Accordingly the application is granted as prayed. Leave is hereby granted to the Appellant/Applicant to file and argue additional ground of appeal contained in exhibit 002.
The ground of appeal aforesaid is deemed filed and served.
Other Citations: (2007)LCN/2180(CA)
