Chief Ozo Nwankwo Alor & Anor V. Christopher Ngene & Ors (2007)

LAWGLOBAL HUB Lead Judgment Report

A. KALGO, J.S.C

This is an appeal against the decision of the Court of Appeal, Enugu Division in which it dismissed the appeal of the appellant and held that the decision of the trial court was interlocutory. The only issue to be, determined by this court in this appeal is whether the decision of the trial court was final or interlocutory.

The appellants who were the plaintiffs in the action, filed 2 separate actions in Awka High Court of Anambra State in suit Nos. AA/36/87 and AA/65/88, against the defendants/respondents. In AA/36/87. filed on 6-4-87 there were 7 defendants and in AA/65/88 filed on 3-5-88. were 9 defendants. The 1st seven defendants in AA/ 65/88 were exactly the same persons as those in AA/36/87. And the claim against the defendants in both suits was exactly the same to wit:-

(1) Declaration that the plaintiffs in possession are entitled to customary right of occupancy in respect of “Ofia Owele” land;

(2) Injunction to restrain the defendants from further trespassing on the said land;

(3) N100.00 (One hundred naira) damages for trespass.

After service of the second writ of summons on the defendants/ respondents, their counsel filed a motion on notice praying the court for –

“(i) An order striking out this suit on the ground that it is abuse of judicial process and caught by the doctrine of lis alibi pendes.

OR IN THE ALTERNATIVE

(ii) An order staying further proceedings in the above suit pending the determination of suit No. AA/36/87. Chief Alo Ozo Nwadogbe & Ors. v. Nathaniel Chinze & Ors. between the same parties and on the same subject matter” .

The motion was first heard by Hon. Justice Uyanna but he retired before completing the hearing. It was then taken over by Nzeako, J., who also could not finish it before her appointment to the Court of Appeal. The application was then taken over for hearing by Earnest-Egbuna, J. He heard the submissions of learned counsel for the defendants/respondents on 6/5/97 and adjourned to 20/5/97 for the appellants’ counsel reply. He failed to turn up and the application was further adjourned to 1/7/97. He still did not turn up in court for the reply. On that day, the learned trial Judge ruled

thus:-

“On 6/5/97, 20/5/97 and again today, the plaintiffs’ counsel has written to be excused. It is noteworthy that the plaintiffs’ counsel has neither filed a counter affidavit to challenge the averments nor sent another counsel to give his reply to the application. I cannot but assume that the plaintiff and his counsel are no longer desirous of going on with this suit and the application therein. The court will therefore strike out the entire suit with N1.500.00 costs against the plaintiff in favour or the defendant.”

The entire suit of the appellants was therefore struck out and they appealed to the Court of Appeal. The Court of Appeal dismissed their appeal which was held to be incompetent.

Dissatisfied with this decision, they further appealed to this court. The only ground of appeal without particulars reads:-

“The learned Justices of the Court of Appeal erred in law, when they dismissed the appellant’s appeal and held that the appeal is incompetent in law as it was not filed within 14 days, because their Lordships construed the order of the trial High Court as interlocutory but not final order.”

In this court, written briefs were filed and exchanged between the parties. Both the appellants and respondents in their respective briefs, agreed that the only issue for determination in the appeal is whether the decision of the trial High Court to strike out the appellants’ action or suit was a final or interlocutory decision.

The question whether a decision, judgment or order of a court is interlocutory or final has been well settled by this court in many decided cases. There is no clear definition or interpretation in any law, rules or the Constitution of the words “interlocutory or final” in relation to the decision, judgment or order of Court in this country.

But S. 318 of the 1999 Constitution defines a “decision” in relation to a court as “any determination of that court and includes judgment, decree, order, conviction, sentence or recommendation”. Therefore, the only answer is in the interpretation given by the courts.

In plethora of decided cases, this court decided that in this country, if the order, decision or judgment of a court finally and completely determines the rights of the parties in the case, it is final.

But if it does not, it is interlocutory only. And in order to determine whether the 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. Therefore, the determining factor is not whether the court has finally determine an issue but it is whether or not it has finally determined the rights of the parties in the claim before the parties. See Oguntimehin v. Tokunbo (1957) 2 FSC 56. (1957) SCNLR 187; Afuwape v. Shodipe (1957) SCNLR 265: Omonuwa v. Oshodin (1985) 2 NWLR (Pt. 10) 924: Akinsanya v. U.B.A. Ltd. (1986) 4 NWLR (Pt. 35) 273: Ude v. Agu (1961) 1 All NLR 61. (1961) 1 SCNLR 98: Ebokam v. Ekwenibe & Sons Trading Co. Ltd. (1999) 10 NWLR (Pt. 622) 242; Kassim v. Ebert (1966) NMLR 123 at 124; (1966) 1 SCNLR 107.

In the instant case, the trial court struck out the entire case of the appellants before it. The appellants’ learned counsel in his brief therefore submitted that the decision which struck off the entire suit before the court has indeed unequivocally disposed of all the matter before it in respect of that subject matter. Therefore counsel argued, that decision is final and not interlocutory. He cited the case of Ebokam v. Ekwenibe & sons Trading Co. Ltd. (1999) 10 NWLR (Pt. 622) 242 in support.

For the respondent, it was submitted in the brief that the decision of the trial court in this case is not final because it did not decide the rights of the parties over the “Offia Owelle” land dispute which was the subject matter of the case. The trial court, learned counsel argued, did not hear any evidence on the matter and made no findings thereon; it merely struck out the suit for the non-challant attitude of the plaintiffs’ counsel and the dispute is still alive and unresolved.

Learned counsel cited the case of Kassim v. Ebert (1966) NMLR 123 at 124-125; (1966) 1 SCNLR 107 and since the suit was merely struck out before any evidence was taken and the dispute resolved, the trial court was not functus officio and further proceedings can be initiated in respect of the matter. Counsel drew the attention of the court to the provisions of Order 24 rule 16 of the High Court Rules of Anambra State, 1988 which provides that:-

“Any cause or matter struck out may, by leave of the court, be relisted on such terms as the court may seem fit.”

and submitted that this provision envisages that a striking out is not the end of the matter as the case struck out can be revived. Therefore, learned counsel argued, the order striking out the case was only interlocutory, and the case can be relisted in the same court under the rule quoted above. He further submitted that if the striking out order of the trial court was interlocutory, then the appeal in the Court of Appeal was incompetent having been filed after the 14 days required by the relevant rule of that court and the order striking it out by the Court of Appeal was valid and correct.

For the sake of emphasis, let me repeat myself that this court has repeatedly stated and restated that the test in deciding whether any order. (decision or judgment) of court is final or interlocutory is: Does the order as made finally dispose of the rights of the parties

If it does, then it is a final order, if it does not, it is only an interlocutory order.

I have earlier referred to the decided cases relevant to this legal principle and I do not intend to recite them here again. There is no doubt that in this case, the learned trial Judge merely struck out the action of the appellants without hearing any evidence or making any findings on the subject matter of the case. This distinguishes it from the case of Ebokam v. Ekwenibe (supra) where the two applications of the contending counsel in the matter were consolidated and heard by the trial court before it made an order striking out both applications on the grounds that there was insufficient material to determine the applications. It was not the case here and so the case of Ebokam v. Ekwenibe (supra), is not applicable.

A final order envisages that it is a permanent order made by the court and the parties in respect of whom or against whom the order is made, cannot go back to the same court to challenge or change that order. That court, by virtue of the order, is functus officio and the only option open to the parties is by way of appeal against the order. This means that the rights of the parties have been determined to finality, and they cannot go back to the same court on those rights.

But where the rights or claims of the parties in any action have not been looked into and determined by the court, they are still pending and the parties can still go back to any court or indeed the same court to examine and decide on those rights. That, in my respectful view, is the Correct situation in this case. Furthermore, the rules of court quoted above, empowers the appellant whose case was struck out to re-apply to the same court to have their case resisted, heard and determined.

I entirely agree with the submissions of the respondents’ counsel on this point and accordingly find, in the circumstances of this case that the order striking out the suit by the trial court and confirmed by the Court of Appeal is only interlocutory and not final. I therefore also agree with the decision of the Court of Appeal that the appeal of the appellant having been filed in that court more than 14 days after the order striking out the suit was made, without leave was out of time and incompetent. (See S. 221 (1) of 1979 Constitution and section 25(2)(a) of Court of Appeal Act. 1976) I therefore resolve the only issue for determination in this appeal against the appellant.

For the reasons stated above. I find no merit in this appeal. I accordingly dismiss the appeal and affirm the decision of the of Appeal. I award N10,000.00 costs against the appellant in favour of the respondents.

SC.21/2002