Anthony Okokhue V. Joseph Obadan & Ors (1989)
LawGlobal-Hub Lead Judgment Report
OGUNDARE, J.C.A.
Following the local government elections held on 12/12/87,the 1st respondent was declared duly elected Councillor for Ward 3 in Agbazilo Local Government. The petitioner/appellant who was a candidate at the said election and who was dissatisfied with the result, filed two petitions (later consolidated into one) under the Local Government Elections Decree, No. 37 of 1987(hereinafter is referred to simply as Decree No. 31) praying in the first petition as follows:-
“That the petitioner who was placed second in the election be declared the winner of the councillorship election in Agbazilo Ward 3 OR ALTERNATIVELY: The whole election in Ward 3 was avoided by corrupt practices and offences against the Local Government Elections Decree, 1987 be declared null and void and fresh election ordered.”
Paragraph 11 of the second petition reads:-
“11. WHEREFORE, your petitioner prayers (sic) that it may be determined
(a) that the said E. Obadan was not only (sic) elected or returned or
(b) that the said Anthony Okokhue was only (sic) elected and ought to have been returned.”
In the course of the preliminary proceedings the 1st respondent filed a motion praying, among other prayers, for an order dismissing the petitions as offending paragraphs 3(1), (2) and (4) of schedule 3 to Decree No. 37 in that payment for security for costs was made outside the statutory period.
After learned counsel for the parties had addressed the court, the learned trial Judge in a considered ruling, upheld the submissions of learned counsel for the respondents and ruled:
“In the result, there is no election petition before me and this petitions is hereby dismissed with costs to be assessed.”
It is against this decision that the petitioner has now appealed to this court upon five grounds of appeal.
In accordance with the rules of this court the parties filed and exchanged their respective Briefs of Arguments. At the hearing of the appeal we invited learned counsel to address us as to whether the decision appealed against was final or interlocutory as the jurisdiction of this court to entertain the appeal would depend on a resolution of this question. Learned counsel addressed us on this question as well as on the merits or otherwise of the appeal. I shall now proceed to resolve the question relating to the nature of the decision appealed against, that is, whether it is final within the context of section 36(1) of Decree No. 37.
Mr. Ozekhome for the petitioner/appellant submits that the decision is final. After referring to the decision and the events leading to it, learned counsel submits that the dismissal of an action is a complete and effectual termination or disposal of that action even though the dismissal was not on the merit. He refers the court to the definitions of the words “Dismiss” and “Dismissal” in Black’s Law Dictionary (5th edition) and Collin’s English Dictionary (1985 edition). He cites Omonuwa v. Oshodin (1985) 2 N.W.L.R. (Pt.10) 924, 925, 927, 932-939. Learned counsel says that if the trial Judge had struck out the petition rather than dismiss same, his submission would have been that the decision was interlocutory. He submits further that there has been a decision on an election petition as envisaged in section 36(1) of Decree No. 37 in the sense that the election petition having been found incompetent, the petition becomes dead and the rights of both parties are hereby finally determined. Mr. Ozekhome argues that the question to be determined is whether the appellant, after the ruling of the lower court, could go back and argue his petition. Learned counsel submits that the appellant cannot do so and therefore the decision appealed against is final.
Mr. Akhere for the 1st respondent, concedes it that the law is rather confused as to what is final or interlocutory decision. He submits that applying all the tests arising out of decided cases, the decision appealed against is final and not interlocutory. He too cites Omonuwa v. Oshodin (supra). He finally submits that having regard to paragraph 2 of Schedule 3 to Decree No. 37, it would make no difference whether or not the trial Judge made an order of striking out or dismissal.
Mrs. Ojo, learned principal State Counsel, for the 2nd to the 4th respondents submits that the decision appealed against is an interlocutory decision in the context of Decree No. 37 and in view of the fact that election petitions are of a special nature. Learned Principal State Counsel observing that the order made was a dismissal of the petition as being incompetent submits that the order amounts to an order of striking-out. She argues that in either case the petitioner is foreclosed from presenting another petition by the provision of paragraph 2 of Schedule 3 to the Decree laying down the time within which a petition can be filed. Learned counsel citing Omonuwa v. Oshodin (supra) submits that the rights of the parties are unaffected by the decision appealed against -She adds that their status remains ante quo. She observes that petitioner’s prayer was not decided. She submits that the dismissal was not on the merit and was therefore not a final decision. The learned Principal State Counsel submits that the decision of the court below being interlocutory, the appellant has no right of appeal to this Court and relies on Orubu v. N.E.C. & Ors. – SC.158/88 decided on 16/12/88 (unreported) (but now reported in (1988) 12 S.C.N.J. 254 and (1988)5 N.W.L.R. (Pt.94) 323. Relying on Sections 31, 36(1) and 37(2) of Decree No.37, she submits that there was no determination as envisaged under the Decree.
Mrs. Ojo finally submits that the court cannot fill in gaps in the Decree and cites Nicon v. Power & Industrial Eng. Co. Ltd. (1986) 1 N.W.L.R. 1 (part 14) in support of this proposition.
It has become necessary to determine, at this stage, whether the judgment sought to be appealed against is final or interlocutory in view of the decision of the Supreme Court in Orubu v. N.E.C. & Ors. (1988) 12 SCNJ 254; (1988) 5 N.W.L.R. (Pt94) 323 to the effect that this court has no jurisdiction to entertain appeals from interlocutory -decisions of the High Court in election petitions brought under Decree No. 37. The terms “final judgment” and “interlocutory judgments” are not defined in any statute nor in the rules of court. What is final or interlocutory judgment is entirely a matter of case law which itself is rather in such a maze of confusion that Lord Denning, M.R., had this to say in Salter Rex &-Co. v. Ghosh (1971) 2 All E.R. 865,866:
“There is a note in the Supreme Court Practice. 1970. Vol. 1. p.779, para. 59/4/2 under RSC Ord. 59. r4, from which it appears that different tests have been stated from time to time as to what is final and what is interlocutory. In Standard Discount Co. v. La Grange (1877) 3 C.P.D. 67 and Salaman v. Warner (1891) 1 Q.B. 734 and 735, Lord Esher, M.R., said that the test was the nature of the application to the court and not the nature of the order which the court eventually made. But in Bozson v Altrincham Urban District Council (1903) 1 K.B. 547, the court said that the test was the nature of the order as made. Lord Alverstone, C.J., said that the test is: ‘Does the judgment or order, as made, finally dispose of the rights of the parties?’ Lord Alverstone, C.J., was right in logic but Lord Esher, M.R., was right in experience. Lord Esher. M.R’s test has always been applied in practice. For instance, an appeal from a judgment under RSC Ord 14 (even apart from the new rule) has always been regarded as interlocutory and notice of appeal had to be lodged within 14 days. An appeal from an order striking out an action as being frivolous or vexatious, or as disclosing no reasonable cause of action, or dismissing it for want of prosecution – every such order is regarded as interlocutory: see Hunt v. Allied Bakeries Ltd (1956) 3 All E.R. 513. (1956) 1 W.L.R. 1326. So I would apply Lord Esher’s test to an order refusing a new trial. I look to the application for new trial and not to the order made. If the application for a new trial were granted, it would clearly be interlocutory. So equally when it is refused, it is interlocutory. It was so held in an unreported case, Anglo-Auto Finance (Commercial) Ltd. v. Robert Dick, (4th December 1967) unreported and we should follow it today.
This question of ‘final’ or ‘interlocutory’ is so uncertain that the only thing for practitioners to do is to look up the practice books and see what has been decided on the point. Most orders have now been the subject of decision. If a new case should arise, we must do the best we can with it. There is no other way.”
(Italics is mine)
Useful definitions are to be found however, in paragraphs 505 & 506 of Halsbury’s Laws of England Vol. 26 (4th Edition).
Case Law in England has revealed two tests usually applied in determining whether an order or decision is final and interlocutory. The two tests are set out in the dictum of Lord Denning, M.R., already quoted above by me. In England, there are authorities in favour of either test. A glaring example of the state of uncertainty of the law in England is to be found in the approach of Lord Denning, M.R., himself. In Salter Rex & Co. v. Ghosh (supra) it is to the application he looked to determine whether the order was final or interlocutory. But in Hanning v. Maitland (1969) 3 All E.R. 1558. it is to the order he looked. In the latter case, a successful unassisted party had applied for costs incurred by him against the legal aid fund. The Judge in chambers dismissed the application. On appeal to the Court of Appeal, Lord Denning, M.R., delivering the judgment of the Court said:-
“Now the applicant seeks to appeal to this court. And the question has arisen: is it final, or is it interlocutory? If it is interlocutory he has to get leave from the Judge in Chambers; and it goes into the interlocutory list and will come on quickly. If it is final, he does not need leave and it may be some months before it comes on. The distinction between “final” and “interlocutory” has given rise to nice distinctions. It will finally determine -as between the applicant and the legal aid fund – whether the costs should come out of the legal aid fund or not.”
The first test, the application test, is better expressed in the words of Brett, L.J., in Standard Discount Co. v. Otard De La Grange 3 C.P.G. 67, 71-72.
“I think that our decision may perhaps be founded upon another ground, namely, that no order, judgment, or other proceeding can be final which does not at once affect 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 defendant, and if it is given for the defendant it is conclusive against the plaintiff; whereas if the application for leave to enter final judgment had failed, the matter in dispute would not have been determined. If leave to defend had been given, the action would have been carried on with the ordinary incidents of pleading and trial, and the matter would have been left in doubt until judgment. I cannot help thinking that no order in an action will be found to be final unless a decision upon the application out of which it arises, but given in favour of the other party to the action, would have determined the matter in dispute. ”
Lord Esher, M.R., explained the position further in Salaman v. Warner & Ors (1891) 1 Q.B. 734,735-6, when he said:-
“Taking into consideration all the consequences that would arise from deciding in one way and the other respectively, I think the better conclusion is that the definition which I gave in Standard Discount Co. v. La Grange 3 C.P.D. 67 at p. 71 is the right test for determining whether an order for the purpose of giving notice of appeal under the rules is final or not. The question must depend on what would be the result of the decision of the Divisional Court, assuming it to be given in favour of either of the parties. If their decision, whichever way it is given, will, if it stands, finally dispose of the matter in dispute. I think that for the purpose of these rules it is final. On the other hand, if their decision, if given in one way, will finally dispose of the matter in dispute, but, if given in the other, will allow the action to go on, then I think it is not final, but interlocutory. That is the rule which I suggested in the case of Standard Discount Co. v. La Grange 3 C.P.D. 67. and which on the whole I think to be the best rule for determining these questions; the rule which will be most easily understood and involves the fewest difficulties. As an example of the difficulties produced by the opposite view, take the case where an order is made staying or dismissing an action as frivolous and vexatious; if that is a final order, the period during which an appeal may be brought is a year. In this case the Divisional Court allowed what is really equivalent to a demurrer to the statement of claim, and, as long as that decision stands, it is no doubt final in one sense; but, if they had disallowed the point taken, then the action must have gone to trial. If in such a case the order were final, there would be a year to appeal in, and the case might have to go on after that lapse of time, when there might be increased difficulty in dealing with the matter in dispute from the death or disappearance of parties or witnesses.”
(Italics mine)
Bozson v. Altrincham Urban District Council (1903) 1 K.B. 547 is usually cited as the leading authority laying down the second test, that is, the ‘nature of the order made’ test. In that case, Lord Alverstone, C.J., had this to say at p.548:-
“It seems to me that the real test for determining this question ought to be this: Does the judgment or order as made, finally dispose of the rights of the parties? If it does, then I think it ought to be treated as a final order; but if it does not, it is then, in my opinion, an interlocutory order.”
The law in England seems now to be as expressed in paragraph 504 of Halsbury’s Laws of England Volume 26 (4th edition) wherein the learned authors said:
“There is no definition in the Judicature Acts or the rules of Court made under them of the terms “final” and “interlocutory”, and a judgment or order may be final for one purpose and interlocutory for another. See Pheysey v Pheysey (1879) 12 Ch. D 305 at 307, C.A.; Re Compton, Norton v. Compton (1884) 27 Ch. D 392, C.A.; Re Page, Hill v. Fladgate (1910) 1 Ch. 489, C.A.; Light v. William West & Sons Ltd (1926) 2 K.B. 238, C.A., or final as to part and interlocutory as to part Light v William West & Sons Ltd (1926) 2 K.B. 238 at 241, C.A., per Lord Hanworth, M.R. It is impossible to lay down principles about what is final and what is interlocutory. Technistudy Ltd v. Kelland (1976) 3 All E.R. 632 at 634, (1976) 1 W.L.R. 1042 at 1045, C.A., where Lord Denning, M.R., said that the only thing to do was to go to the practice books and see what had been done in the past. It is better to look at the nature of the application and not at the nature of the order eventually made. Salter Rex Co. v. Ghosh (1971) 2 Q.B. 597 at 601, (1971) 2 All E.R. 865 at 866, C.A., per Lord Denning, M.R. In general, orders in the nature of summary judgment where there has been no trial of the issues are interlocutory.”
(Italics mine)
The first test does not find much favour in this country for our courts have tended to the second view – the nature of the order made test. I need mention only a few of the cases where our courts have come to accept this second test. In Blay & Ors. v. Solomon 12.W.A.C.A. 175, the respondent, as plaintiff sued the appellants, as defendants, for possession of property, an account of rents and profits and partition or sale. The trial Judge ordered that an account as between the respondent and the third appellant should be filed and that the property be sold by auction. On appeal to the West African Court of Appeal, the question arose whether the decision of the trial Judge was interlocutory requiring special leave to appeal. The court held it was and as no special leave to appeal was obtained, it was dismissed. Verity, C.J., delivering the judgment of the Court said at page 176 of the Report:
“A number of cases were cited by counsel on each side, bearing upon the distinction between an interlocutory and a final judgment.
We find it necessary to refer to but three, all of which were cited in the case of Krakue v. Mensah (1), (1926-1929), G.C.L.R. 277, a case decided by the Full Court on this point. In Standard Discount Co. v. Le Grange (1877), 3 C.D.D. 71; 47 L.J.Q.B. 3; 37 L.T. 372, Brett, L.J., said:-
“No order, judgment or other proceeding can be final which does not at once affect the status of the parties for whichever side the decision be given.”
In Bozson v. Altrincham Urban District Council (1903) 1 K.B. 547; 72 L.J.K.B. 271; 67 J.P. 397; 19T.L.R. 266; 47 Sol. Jo. 316, in a passage cited with approval by Swinfen Eady, L.J., in M. Isaac & Sons Ltd. v. Salbstein & Anor 85 L.J.K.B. 1433; 114L.T. 924; 32 T.L.R. 370; 60 Sol. Jo. 444, Alverstone, L.C.J., said:-
“It seems to me the real test for determining this question ought to be: does the judgment or order, as made, finally dispose of the rights of the parties?”
In Ex parte Moore, In re Faithful (1885), 14 Q.B.D.627; 54 L.J.Q.B. 190; 52 L.T. 376; 1 T.L.R. 263, Brett, M.R., said:”
If the Court orders something to be done according to the answer to the enquiries, without any further reference to itself, the judgment is final.”
We think that the application of these principles to the present case in conclusive.”
Applying the test to the facts before the Court, the learned Chief Justice went on to say:-
“The terms of the judgment of the Court below do not at once affect the status of the parties, or indeed of any of them, for there is no order consequent upon the enquiries into the accounts, no determination as to the distribution of the proceeds of the sale, no indication of the rights or interests of the parties or any of them in relation thereto, no determination of the plaintiff’s claim against either the first or second defendant and no order as to by whom or to whom the costs when taxed are to be paid. There is no order  for anything to be done without further reference to the Court, and in no sense does it appear from the judgment that the rights of the parties or any of them are finally disposed of.
We have no doubt whatever that the decision appealed from is an interlocutory decision.”
See also Bansah v. G.B. Ollivant Ltd. (1954) 14 W.A.C.A. 408.
Blay & Ors v. Solomon was cited along with other authorities by the Federal Supreme Court in Afuwape & Ors v. Shodipe & Ors (1957) 2 F.S.C. 62; [1957] SCNLR 265 and although the Court in the latter case did not indicate in its judgment which of the two tests it preferred, it is clear, from the judgment that the second test prevailed. In the case, the plaintiffs/respondents instituted proceedings in the High Court against the defendants/appellants Nos. 1 to 7 seeking an order for partition or sale of certain properties. Appellants Nos. 8 to 14 were on their own application joined as co-defendants.
The learned trial Judge having made the following finding:-
“I find that the true purchasers of the properties were the 28 subscribers, the 21 plaintiffs and the 1st seven defendants, and if any estate at all was conveyed to the Union as a body it was in trust for those persons” then proceeded to hold that the plaintiffs were entitled either to partition or sale but indicated that he was not satisfied that partition was practicable.
On appeal to the Federal Supreme Court, a preliminary point was raised as to whether the judgment appealed from was final or interlocutory because if it was not final, then the appeal was out of time. It was held-
- As regards appellants Nos. 8 to 14, the judgment was final in that it decided that they had no interest in the properties and could not, therefore, share in any partition or sale thereof.
- As regards appellants Nos. 1 to 7, the judgment was clearly not a final one as it did not at once affect the status of the parties, neither did it finally dispose of their rights since it left undecided the very point at issue, namely, whether there would be partition or sale. Nothing could be done and no execution could proceed without further reference to the Court.
Concluding the judgment of the Court, Nageon de Lestang, F.J., said at page 64 of the Report:-
“Applying these tests to the facts of this case, it seems to me that the judgment is clearly not a final one. The judgment of the Court below does not at once affect the status of the parties, neither does it finally dispose of their rights, since it leaves undecided the very point at issue, namely, whether there would be partition or sale. Again nothing can be done and no execution can proceed without further reference to the Court. The objection, therefore, succeeds as far as appellants 1 to 7 are concerned, and their appeals are accordingly struck out. It fails as regards appellants 8 to 14 and the appeal must go on in their case.”
The second test was applied by the Federal Supreme Court in Alaye of Effon v. Fasan (1958) 3 F.S.C. 68; [1958] SCNLR 171 where the Court held that an order made on an application to set aside an order’ striking out a cause for the non-appearance of the plaintiff is an interlocutory order. Coussey, Ag. F.J., delivering the judgment of the Court said at page 69 of the Report:
“Sometimes it is not easy to distinguish between what is an interlocutory order and what is a final order. No comprehensive definition has ever been given by the courts. In the course of an interesting argument Mr. Davies for the plaintiff/appellant has referred to Forbes-Smith v Forbes-Smith and anor. (1901) P.D. 258, The City of Manchester (1879-80) 5 P.D. 221, and Marsden v.Lancs Yorks Railway Company (1881) 7 Q.B.D. 641 and Mr. Fani- Kayode for the defendant/respondent has referred to in re Herber Reeves and Company (1902) 1 Ch. 29.
On the authorities I think it is clear that the learned Judge was right in holding that this was an interlocutory decision, and this appeal must, therefore, fail. In Standard Discount Company v.
3 C.P.D. 71, Brett, L.J., said:-
“No order, judgment or other proceeding can be final which does not at once affect the status of the parties for whichever side the decision is given.”
And in Bozson v. Altrincham Urban District Council (1903) 1 K.B.547 in a passage which Swinfen Eady, L.J., cited with approval in M. Isaac and Sons Limited v. Salbstein and anor. (1916) 85 L.J.K.B. 1433, Lord Alverstone said:-
“It seems to me that the real test for determining this question ought to be this: Does the judgment or order, as made, finally dispose of the right of the parties?”
In the present appeal the matter is, in my opinion, decided conclusively by the judgment of Cozens-Hardy, M.R., in In re Ferome (1907) 2 Ch. 145. Referring with approval to the view taken in In Re Herber Reeves and Company, supra, the learned Master of the Rolls held that an order made upon an application to review a taxing master’s certificate is an interlocutory order although the Court did not accede to the application. The point is, perhaps, put more tersely in James Sam Bansah v. G.B. Ollivant Ltd., 14 W.A.C.A. 408 which was an appeal from a Judge’s refusal to review his judgment. Foster-Sutton, P., said:-
“The question for determination is – does the order under appeal finally dispose of the rights of the parties? In our view it does not.
In re Jerome and Peck v. Peck (1948) 2A.E.R 229. If the learned trial Judge had agreed to review his judgment that decision could clearly not have finally disposed of the rights of the parties, and a refusal to review does not, because it is the judgment which is the subject of the application for review which finally disposed of the rights of the parties, not the trial Judge’s refusal to review.”
In Ude & Ors. v. Agu & Ors. (1961) All N.L.R. 65, 66-7, the Federal Supreme Court expressly followed Blay & Ors v. Solomon (supra). In that case the Court, per Brett, F.J., said:-
“A preliminary objection to the competency of the appeal was argued by counsel for the respondents, who submitted that the decision appealed against was an interlocutory one, and that the notice of appeal was invalid first because the leave of the trial Judge was not obtained as, at the material time, was required by section 3(b) of the Federal Supreme Court (Appeals) Ordinance, and secondly because the notice of appeal was not entered until the time limit of fourteen days for appealing against an interlocutory decision had expired. We overruled the objection but did not at that stage state our reasons. In England it appears from notes in the Annual Practice to O.58 r.4 of the Rules of the Supreme Court that the Court of Appeal has at different times adopted two different tests for determining whether a decision is an interlocutory or a final one for the purposes of an appeal.
One, which the editors of the Annual Practice say is generally preferred is that stated by Lord Alverstone, C.J., in Bozson v. Altrincham U.D. C. (1903) 1 K.B. 547 –
“Does the order as made finally dispose of the rights of the parties? If it does then I think it ought to be treated as a final order; but if it does not it is then, in my opinion, an interlocutory order.”
The other, as stated in Salaman v. Warner (1891) 1 Q.B. 734, is that an order is an interlocutory order unless it is made on an application of such a character that whatever order had been made thereon must finally have disposed of the matter in dispute. Thus one test looks at the nature of the proceedings; the other (which is generally preferred) looks at the order made.
In Blay v. Solomon (1947) 12 W.A.C.A. 175 the West African Court of Appeal followed the test which looks at the order made, and in my view it is clearly the proper test for this Court to adopt, particularly having regard to the fact that there is a constitutional right of appeal against a final decision of a High Court sitting at first instance, whereas an appeal against an interlocutory decision is now left to be conferred by legislation and no such legislation has yet been enacted, so that an appeal does not at present lie at all against an interlocutory decision.”
See also Coker v. Coker (1963) 1 All N.L.R. 297,298.
A case that has been cited to us by counsel in this matter and in similar matters now on hand is Omonuwa v. Oshodin & Anor (supra). In this case, the appellant as plaintiff in the High Court had sued the respondents as defendants, over a piece of land. Pleadings having been filed and exchanged the defendants brought a motion before the trial Court to argue the preliminary points of law raised in their statement of defence, to wit, “that this suit is not maintainable against the defendants/applicants in that the case is res judicata …. ” The points of law raised in the statement of defence were rejected and the motion was dismissed. The defendants appealed against the ruling to the Court of Appeal on the ground, inter alia, that the trial Judge failed to pronounce on the issue of res judicata canvassed before him. The Court of Appeal allowed the appeal and quashed the ruling appealed against. The case was remitted to the court of trial “for the Judge to make a decision.” Being dissatisfied with this order, the plaintiff appealed to the Supreme Court without obtaining the leave of either the Court of Appeal or the Supreme Court to appeal. At the Supreme Court, a preliminary objection was raised to the competence of the appeal in that no leave to appeal was obtained. The objection raised the issue whether the order of the Court of Appeal was final or interlocutory.
In the lead judgment of Karibi-Whyte, J.S.C., concurred in by the other six Justices that sat on the appeal, the learned Justice of the Supreme Court, after a review of various authorities both in England and Nigeria – a number of which he criticised – observed at p.938 thus:
“All the cases cited agree on the proposition that a decision between the parties can only be regarded as final when the determination of the Court disposes of the rights of the parties, (and not merely an issue) in the case.”
He then held:
“Where only an issue is the subject matter of an order or appeal the determination of that Court which is a final decision on the issue or issues before it, which does not finally determine the rights of the parties, is in my respectful opinion interlocutory.”
The learned Justice had earlier held, at pages 937-938:
“The defect in relying on the nature of the order made (though still a workable test as distinguishable from the nature of the application from which the order is made is that the former ignores the issue or issues giving rise to the application and consequently the order, and fastens on the order which is the result of the application.
An action is commenced by a writ of summons, originating summons or by any other method provided by the Rules of court. It is normally terminated by a judgment of the court determining the rights of the parties which are the issues joined in the case. Any other process determining an issue or issues between the parties or indeed determining the rights of the parties to the action can only be regarded as an interlocutory application.”
It would seem that the learned Justice preferred the nature of the application ‘test to the nature of the order made’ test hitherto applied in this country. He concluded thus, at page 939:
“In my opinion, the ideal approach is to consider both the nature of the application, and the nature of the order made in determining whether an order or judgment is interlocutory or final in respect
of the issues before it as between the parties to the litigation. Thus where the nature of the application does not aim at finally determining the claim or claims in dispute between the parties, but only deals with an issue, both the application and the order or judgment must be interlocutory. See Isaacs & Sons v. Salbstein & anor. (supra) at p.146. Alaye of Effon v. Fasan (1958) 3 F.S.C. 68; [1958] SCNLR 171. However, where an application has the effect by the order therefore of finally determining the claim before the Court, the order may properly be regarded as final. See Afuwape & Ors. v. Shodipe (1957) 2 F.S.C. 62 at p.68; [1957] SCNLR 265. This proposition is clearly consistent with the principles as enunciated in the judicial decisions and is logical. It also accords with common sense and the practice of the Courts.
The order appealed against in the case before us does not purport and has not finally settled the rights of the parties in the claim before the court, and is therefore an interlocutory order. The determining factor whether an order or judgment is interlocutory or final is not whether court has finally determined an issue before it. It is whether or not it has finally determined the rights of the parties in the claim before the court.”
It would appear from the various dicta pronounced in the case that a decision becomes final only when the merit of the case had been determined.
Irikefe, J.S.C. (as he then was) said at pages 939-940:
“This matter has yet to be determined on its merit and accordingly, the decision in the High Court was interlocutory and in consequence therefore, the decision of the Court of Appeal thereon would remain interlocutory.”
(italics is mine)
Nnamani, J .S.C., in his own contribution after posing the question – what is an interlocutory decision? – referred to the definition in Dictionary of English Law by Earl Jowitt and said at p.942:
“It seems to me in essence that it is a decision given in the course of proceedings but which does not determine the issues between the parties finally.”
Uwais, J.S.C., for his own part said at p.943:
“The decision of the Court of Appeal though final in relation to that court is not in reality a final determination of the substantive issues which were pending before the High Court. The Court of Appeal was very clear on this and that is why it made the order remitting the case to the High Court for the trial Judge to make a decision.
There can be no doubt that the appellant/respondent has a right under section 218 subsection (2) (a) of the Constitution of the Federal Republic of Nigeria, 1979, to appeal as of right on questions of law alone against the decision of the Court of Appeal.
The issue for determination here is whether the decision of the Court of Appeal was final or interlocutory in the context of section 31 subsection (2)(a) of the Supreme Court Act, 1960. If it was a final decision the appellant/respondent was entitled to appeal within three months, but if it was an interlocutory decision he had only 14 days within which to appeal. In determining the nature of the appeal under section 31 subsection (2)(a) one has to examine the proceedings in the trial court to see whether or not the point in issue was determined by the trial court in limine or before judgment. If it is so determined then the next question is whether the substantive issues in the cause of action have been disposed of by such decision.
In the present case the preliminary objection raised in the High Court by the respondent/applicant was clearly an interlocutory matter notwithstanding the fact that the issues raised had been pleaded earlier in the statement of defence. Though, the High Court overruled the objection raised, the decision of the Court of Appeal upholding the objection is, for the purposes of this exercise, tantamount to a decision of the trial court. By the decision of the Court of Appeal the substantive issues in the cause of action had not been disposed of and that is why it became necessary for the Court of Appeal to remit the case to the High Court for a final decision by the trial Judge.”
It is crystal clear that if the various dicta in Omonuwa v. Oshodin – particularly of Karibi-Whyte, J.S.C. – are applied equally to all decisions both of the High Courts and Court of Appeal, there would have been a departure from the test consistently applied in the courts in this country since Blay v. Solomon (supra).
After Omonuwa v. Oshodin came Western Steel Works Ltd. v. Iron & Steel Workers Union & Anor (1986) 3 N.W.L.R. (Pt. 30) 617 – another decision of the Supreme Court on the question of whether a decision is final or interlocutory. This latter appeal touched on the decision of a lower court on the issue of jurisdiction. Obaseki, J.S.C., in his lead judgment, followed Automatic Telephone & Electric Co. Ltd. v. Federal Military Government (1968) 1 All N.L.R. 428,43-434 S.C.N.; Adegbenro v. Akintola & Anor (1962) 1 All N.L.R. 442, 474 P.c. and Agbajo v. Attorney-General of the Federation (1986) 2 N.W.L.R. (Pt.23) 528 C.A., and held that a decision of a Court below declining jurisdiction in a matter is a final decision. It was acknowledged in the judgment of Obaseki, J .S.C., that Automatic Telephone & Electric Co. Ltd. v. Fed. Military Government and Adegbenro v. Akintola were criticised in the lead judgment of Karibi-Whyte, J.S.C., in Omonuwa v. Oshodin. If the dicta of Karibi-Whyte, J.S.C., in Omonuwa v. Oshodin had all been followed, the decision in Western Steel Works Ltd. v. Iron & Steel Workers Union would have been different.
I now come to the decision of the Supreme Court in Akinsanya v. U.B.A. Ltd. (1986) 4 N.W.L.R. (Pt. 35) 273 where Omonuwa v. Oshodin was considered and explained. The Court explicitly in that case reaffirmed the ‘nature of the order made test laid down in Blay v. Solomon and other cases that followed as the correct approach to determining whether a decision is final or interlocutory. It tacitly overruled the dictum of Obaseki, J.S.C., in Western Steel Works Ltd. v. Iron & Steel Workers Union wherein the learned Justice had said:
“Similarly, if a court gives a declaration that it has jurisdiction, it concludes the rights of the parties to approach that court for a remedy.”
I say this for Eso, J.S.C., in his lead judgment (with which the other 6 Justices agreed) said at page 296:
“In other words, if the court of first instance, orders that a matter before it be terminated (struck out) for it has no jurisdiction to determine the issue before it, that is the end of all the issue arising in the cause or matter and there is no longer, any issue between the parties in that cause or matter that remains for determination in that court. But it would be interlocutory if its order is that it has jurisdiction for there will be reference of the remaining issues in the case itself.”
With Akinsanya v. U.B.A. Ltd., the test applicable is now beyond question although its application may still be bedeviled with difficulties.
Now coming to the appeal on hand, if it had been an appeal in an ordinary civil proceedings I would not have hesitated in holding that the decision appealed against is on the authorities, a final decision. It does not matter that the trial Judge dismissed the petition rather than striking it out. The order of dismissal made in the present case is not an order on the merits.
Judgment on the merits is defined in Earl Jowitt’s Dictionary of English Law (second edition) at page 1026 as meaning “where the case has been argued and the court had decided which party, is in the right; such a judgment is given after trial.”
A judgment is not given on the merits when it is founded on some technical rule of procedure.
An election petition has been held to be sui generis – see: Onitiri v. Benson, 5 F.S.C. 150 where it was also held that a right of appeal is a curtailment of the jurisdiction of the court whose decision is sought to be appealed, and extends the jurisdiction of the court to which the appeal lies; and the right must be conferred clearly and definitely, not necessarily perhaps by express words, but at least by the clearest possible implication. The right of appeal given in Decree No. 37 is conferred by section 36(1) thereof which reads:
“36(1) Notwithstanding any provisions permitting any other period of notice, notice of appeal to the Court of Appeal from a decision on an election petition shall be given within one month of the decision in question.”
(italics is mine)
What I now have to decide is: notwithstanding that I have held that the decision appealed against in the appeal on hand is a final decision, is it an appealable decision within the context of section 36(1) of Decree No. 37. For a decision to be appealable under section 36(1) it must be a decision ON a election petition and not a decision IN an election petition. What then is a decision on an election petition?
To answer this question, one has to look at sections 31, 34(1), 37 of the Decree and paragraph 28(1) and (2) of Schedule 3 of the Decree.
They read as follows:
“31. The High Court shall have original jurisdiction to hear and determine any questions whether any person has become an elected member of a Local Government Council.
34.(1) An election may be questioned on the following grounds-
(a) that the person whose election was questioned was at the time of the election not qualified or was disqualified from being elected as a member of a Local Government Council; or
(b) that the election was avoided by corrupt practices or offences against this Decree; or
(c) that the respondent was not duly elected by a majority of lawful votes at the election; or
(d) that the petitioner was validly nominated but was unlawfully excluded from the election.
37.(1) If the High Court shall have determined that a candidate returned as elected was not duly elected, then any candidate declared by the court as elected shall from the time of the decision of the High Court be deemed to be duly elected until any determination of the appellate Court to the contrary.
(2) If the High Court shall have determined that a candidate returned as elected was not duly elected and that the election was avoided then if notice of appeal from such determination shall have been given within one month the candidate returned as elected shall, notwithstanding the decision of the High Court, be deemed to have been duly elected for the period until the determination of the Court of Appeal is given on such appeal or the appeal is abandoned.
28.(1) At the conclusion of the trial, the court shall determine whether a person whose election or return is complained of or any other person, and what person, was duly returned or elected, or whether the election was void, and shall certify such determination to the Electoral Officer.
(2) Upon such certification being given the election shall be confirmed, or (subject to the provisions of section 37 of this Decree in the event of an appeal) a new election shall be held in accordance with such certification (or in accordance with finding upon the determination of such appeal).”
In my respectful view, a reading together of the above provisions would suggest that the phrase “a decision on an election petition” could only mean a determination of any question whether any person has become an elected member of a Local Government Council or that the election was avoided, that is, a determination on the merits of the petition. Any other decision made in the course of the election proceedings would only be a decision in an election petition. This view seems to accord with the submission of Dr. Odje, S.A.N., in Orubu v. NEC & Ors (supra) – see p.290 line 21-23 of the Report with which Karibi- Whyte, J .S.C., agreed at page 291 lines 39-42 and p.292 line 1 wherein the learned Justice said:-
“I have arrived at this conclusion because I agree with Dr. Odje for the appellant that section 36(1) has provided for appeals to the Court of Appeal from a decision on an election petition, which naturally refers to the conclusion of the proceedings. It does not contemplate decisions in an election petition made before the final determination. ”
(Italics mine)
Dr. Odje has argued before us in an appeal similar to the present one (CA/B/27/6m/89) that a decision on an election petition determines the petition.
He went on to submit that by striking out the petition the respondent had been declared duly elected and that all the issues raised in the petition had been decided against the petitioner. With utmost respect to learned Senior Advocate, I cannot accept the submission that by striking out a petition the trial Judge has thereby declared the respondent (whose election is being challenged) duly elected nor that all the issues raised in the petition have ‘been decided against the petitioner. By striking out the petition, the prayer therein remains undetermined and but for paragraph 3 of Schedule 3 the petitioner would still have been at liberty to bring another petition after obtaining an order for enlargement of time to so do. In an ordinary civil proceedings the striking out of the action though puts an end how-be-it ex tempore, to the rights of the parties; it is a final decision. But section 36(1) does not confer right of appeal from a final decision in an election petition but from a decision on an election petition.
Dr. Odje has also referred to a number of earlier decisions. I shall now consider these decisions. As they are Supreme Court decisions, I am bound by them. If any, or all, of these authorities has determined the question under consideration I am bound to give effect to such authority. I take first Onitiri v. Benson (1960) 5 F.S.C. 150, 154 and Benson v. Onitiri (1960) 5 F.S.C. 69, 75. Regulation 9 of the Federal Legislative Houses (Disputed Seats) Regulations, 1959, LN 247 of 1959 under which Benson appealed is in pari materia with section 36(1). But Benson’s appeal concerned with the decision of the High Court avoiding his election. There was thus a hearing and a determination of the prayer(s) in the petition. Benson v. Onitiri, therefore does not apply to the issue under consideration. In Onitiri v. Benson, Ademola, C.J.F., said at p.153:
“We have carefully considered all the authorities cited to us and it is abundantly clear to us from them all that the jurisdiction of any Tribunal to deal with such matters as election petitions, which affect membership of a legislative assembly, is a jurisdiction of a very special nature which does not carry with it the ordinary incidents of appeal in an ordinary civil case.”
Later in his judgment, the learned Chief Justice added at p. 154:
“Moreover, it is noteworthy that under Regulation 9, notice of appeal against the decision of a High Court on an election petition must be given within one month of the decision in question a most important variation from the rules of procedure in an ordinary civil matter, indicating that an appeal against the decision of a High Court on an election petition is in a class by itself.”
He then referred to Regulation 69 (which is in pari materia with paragraph 51 of Schedule 3 to the Decree) and held at p.155:
“Chief Rotimi Williams sought to urge that because these Regulations applied to election petitions the practice and procedure of this Court and of the High Court in dealing with ordinary civil matters, it must be assumed that for the purposes of right of appeal to the Privy Council an election petition must be considered as an ordinary civil cause or matter. We however, prefer the view of Mr. Kayode which he adopted when it was put to him by a member of the Court that rules of practice and procedure’ on the one hand, and ordinary incidents of appeal on the other, do not run in double harness. It seems to us that Regulation 69 of the 1959 Regulations is merely a device adopted for convenience and to obviate the necessity possibly for prescribing separate rules to be observed when election petitions are before the High Court or this Court.”
(italics mine)
The above weighty dicta of the learned Chief Justice show clearly that an appeal against the decision of a High Court on an election petition is in a class by itself and that the incidents of appeal in an ordinary civil case do not apply to it. Thus ‘final decision’ in an ordinary civil case does not necessarily mean the same in an election petition.
In any event, unlike in section 220(1) of the 1979 Constitution where the words used are “final decisions in any civil, the words used in section 36(1) of the Decree No. 37 are “decision on an election petition.” It has been held by the Supreme Court in Orubu v. N. E. C. & Ors. (supra) that there is a difference between “decision on an election petition” and “decision in an election petition.” Consequently, the interpretation of the phrase used in section 220(1) of the Constitution cannot be of much help in the in perpetration of the phrase used in section 36(1) of the Decree.
In Eminue v. Nkereuwen & Ors (1966) 1 All N.L.R. 63 and Paul Unongo v. Aper Aku (1983) 11 S.C. 129; [1983] 2 SCNLR 332 the issue now under consideration was never raised: the two cases are, therefore, no authority for saying that a decision striking out a petition for non-compliance is a decision on an election petition. Our attention has not been drawn to and decided case on the extent of the right of appeal granted in section 36(1) or any similar legislation.
The conclusion I reach is that the decision appealed against being not a decision on the election petition but in the petition proceedings, although final in an ordinary civil proceedings, is not such a decision that is appealable under section 36(1) of Decree No. 37. Consequently, I hold that the appeal now before us is incompetent and it is hereby struck out with N150.00 costs to each set of respondents.
Other Citations: (1989)LCN/0092(CA)
