Christian Nwokedi V. Union Bank of Nigeria Plc. (1997)

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TOBI, J.C.A.

This is an application for departure from the rules of this Court and praying the Court for an order “deeming the Record of Appeal compiled and transmitted to the Court as properly compiled, transmitted, filed and served” and also for an order “abridging the time within which briefs can be filed by parties and deeming as properly filed and served the plaintiff/appellant’s brief…”

Before learned counsel for the applicant could move the application, learned counsel for the respondent raised a preliminary objection on the following grounds:

“1. No leave of court is given for the appeal, the Judge’s order being interlocutory.

2. No leave was given by court to file the appeal outside the time (14 days) limited by the rules of court”.

Arguing the preliminary objection, learned counsel for the respondent Mr. Zanda Izundu, submitted that the order of the lower court granting a stay of execution, being of an interlocutory nature, the applicant must seek leave before an appeal can be lodged. He also submitted that the appeal must be filed within 14 days in pursuant to section 25(2)(a) of the Court of Appeal Act. He relied on Alaye of Effon v. Fasan (1958) SCNLR 171, (1958) 3 FSC 68; Omolowo v. African Newspapers of Nigeria Limited (1991) 8 NWLR (Pt. 209) 371 at 385 and Obi Okoye’s book entitled Essays on Civil Procedure, Volume 1, Page 101. Counsel urged the court to uphold the objection.

Learned counsel for the applicant, Mr. C.O. Anah submitted that the issue involved is in section 220(l)(a) of the Constitution of the Federal Republic of Nigeria, 1979, which provides for appeal as of right and not with leave of Court. On the definition of final decision, learned counsel referred to Aqua Limited v. Ondo State Sports Council (1988) 4 NWLR (Pt. 91) 622 at 655 and submitted that the ruling in the lower court for a stay of execution pending the determination of the appeal in the Court of Appeal, is a final decision.

On the second ground of objection, learned Counsel submitted that where no leave is required, the issue of 14 days does not arise as stated in section 25(2)(a) of the Court of Appeal Act. He argued that this court should not take into consideration section 15 of the Court of Appeal Act because it has been decided by the court in Major General Lekwot (Rtd) and Others v. Judicial Tribunal on Civil and Communal Disturbances in Kaduna State and Another (1993) 2 NWLR (Pt. 276) 410 that the section is unconstitutional and therefore null and void. Izundu had no reply. He conceded that if his objection failed, he would not oppose the application.

The crux of the dispute is short but trickish or tricky. It is whether a ruling on an application for stay of execution is an interlocutory decision or a final decision. Let me pose the two pertinent questions: What is an interlocutory decision? What is a final decision? I will deal with the questions in turn.

The word ‘interlocutory’ generally means provisional, interim, temporary. It also means not final. An interlocutory decision is one that decides a point or matter which is not final. It is a decision which intervenes between the commencement or initiation of an action and the end of it. An interlocutory decision has no element of finality but is transient in nature.

On the other hand, the word ‘final’ generally means last, conclusive, terminated and completed. It also means decisive or definitive. A final decision is one which conclusively decides the rights of the parties in a litigation and which leaves nothing open to further dispute as it completely sets at rest the cause of action between the parties. A final decision is a final disposition of the cause of action at the trial court until it is reversed or set aside on appeal.

The case law as to whether a decision is interlocutory or final is in great proliferation. I can take some cases. I will examine the case law in three arms, thus: interlocutory decisions, final decisions and a combination of both. First, interlocutory decisions. In Omonuwa v. Oshodin and Another (1985) 2 NWLR (Pt. 10) 924, the Supreme Court fell back on the definition of interlocutory applications by Cotton, LJ. in Gilbert v. Endean (1878) 9 Ch.D. 259 at pages 268 and 269:

“Those applications only are considered interlocutory which do not decide the rights of the parties, but are made for the purpose of keeping things in status quo till the rights can be decided, or for the purpose of obtaining some direction of the court as to how the cause is to be conducted, as to what is to be done in the progress of the cause for the purpose of enabling the court ultimately to decide upon the rights of the parties”.

In the same case, the Supreme Court fell back on the definition of interlocutory order by Cotton, L.J. in Blakey v. Latham (1890) 43 Ch.D. at page 23:

“Any order, which in my opinion, does not deal with the final rights of the parties, but merely directs how the declarations of rights already given in the final judgments are to be worked out is interlocutory, just as an order made before judgment is interlocutory where it gives no final decision on the matters in dispute, but merely directs how the parties are to proceed in order to obtain that final decision”.