Christian Nwokedi V. Union Bank of Nigeria Plc. (1997)
LawGlobal-Hub Lead Judgment Report
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.
- 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”.
In Fahunmi and Another v. Oyewusi (1990) 6 NWLR (Pt. 159) 728, the Court of Appeal held that where in a suit an issue separately determined is not conclusive of the suit, the judgment upon that suit is an interlocutory judgment and the suit continues. In Chief Nwosu and Another v. Ofor (1991) 2 NWLR (Pt. 173) 275, the Court of Appeal held that an interlocutory order is a decision given in the course of proceedings but which does not determine the issue between the parties finally. The Court held that a ruling that a party has locus standi or standing to prosecute a claim is an interlocutory order as it does not finally decide the claim. In Ideh v. Godbless Motors (Nig.) Ltd. (1991) 4 NWLR (Pt. 188) 699, the Court of Appeal held that the decision of the trial Judge that he has jurisdiction to entertain the suit filed is interlocutory since the decision has not finally determined the rights of the parties.
In Imo Broadcasting Corporation v. Iwueke (1995) 1 NWLR (Pt. 372) 488, the Court of Appeal held that where only an issue is the subject matter of an order or appeal the determination of the court which is a final decision on the issue or issues before it, which does not finally determine the rights of the parties is interlocutory.
Let me now take final decisions. In Chief Sodipo v. Lemminkainen or and another (1985) 2 NWLR (Pt. 8) 547, the Supreme Court defined a final judgment as a judgment obtained in an action by which a previous existing liability of the defendant to the plaintiff is ascertained and established or where the question whether there was a pre-existing right of the plaintiff against the defendant is finally determined in favour of either the plaintiff or the defendant. See also Ezenwa v. Kareem (1990) 3 NWLR (Pt. 138) 258.
In Akinsanya v. United Bank for Africa Limited (1986) 4 NWLR (Pt. 35) 273, the Supreme Court held that an order of court is final if the court orders something to be done according to the answer to the enquiries, without any further reference to itself.
In Okokhue v. Obadan and Others (1989) 5 NWLR (Pt. 120) 185, the Court of Appeal held as follows:
(a) 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. See also Akinsanya v. United Bank for Africa Limited, supra.
(b) No order, judgment or other proceeding can be final which does not affect the status of the parties for whichever side the decision is 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 defendant.
(c) A decision between the parties can only be regarded as final when a determination of the court disposes of the rights of the parties and not merely an issue in the case. See also Ideh v. Godbless Motors (Nig.) Ltd supra; Afolabi v. Igunbor and Another (1992) 8 NWLR (Pt. 257) 115.
(d) A decision or judgment becomes final only when the merits of the case has been determined.
In Ayu v. Madugu (1991) 2 NWLR (Pt. 171) 92, the Court of Appeal held that a final order or decision ends the dispute between the parties over a specific subject matter or and permanently sets it at rest in the court which pronounced it. It terminates the litigation on merit and leaves nothing for the court to do but execute judgment unless it is set aside on appeal, with a stay of execution intervening.
In Ikeazor v. Ikeazor (1994) 5 NWLR (Pt. 436) 609, the Court of Appeal held that the test for resolving the question as to whether a decision is final or interlocutory is to look at the result, that is, whether the judgment or order as made finally disposes of the rights of the parties.
In Imo Broadcasting Corporation v. Iwuke, supra, the Court of Appeal held that a final judgment is one which puts an end to the action by declaring that the plaintiff has or has not entitled himself to the remedy he sued for so that nothing remains to be done but to execute the judgment.
I now take the third and final arm, which is a combination of the two arms. The Courts have ‘clearly distinguished the two arms in a combined analysis. In Botson v. Altrincham (1903) 1 KB 547, Lord Alverstone said at page 548:
“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. A different test is stated in Salaman v. Warner namely, that an order is an interlocutory order unless it is made on an application of such a character that whatever order has been made thereon must finally have disposed of the matter in dispute. The latter test… ..regards the nature of the proceedings; the former(which is generally preferred) looks at the order made”.
The decision has been followed by the courts of this country. See for example, Afolabi and Another v. Igunbor and Another, supra; Akinsanya v. United Bank of Africa Limited, supra.
In Omonuwo v. Oshodin and Another, supra, the Supreme Court held thus:
(1) Two tests have been laid down for determining whether or not an order of court is final or interlocutory
(a) The first is to see the nature of the application made to the court in order to determine whether or not the order is final or interlocutory.
(b) The second is to consider the nature of the order made.
(2) In Nigeria, it is the “nature-of-order” test that has been constantly applied. If the order made finally disposes of the rights of the parties then that order is final. If the order made does not, it is interlocutory. See also Ebokam v. Ekwenibe and Sons Trading Company Limited (1993) 6 NWLR (Pt. 297) 108.
In Akinsanya v. UBA supra, the Supreme Court held that in determining whether or not decisions of first instance are final or interlocutory, the test to be applied is that laid down in Bozson v. Altrincham (1903) 1 KB. 547 namely: Does the judgment or order as made, finally dispose of the rights of the parties? If it does, then the order is final order. If it does not, it is interlocutory. See also Okokbue v. Obadan and Others, supra.
In Nwosu v. Ofor, supra, the Court of Appeal held that in deciding whether an order is final or interlocutory, the test to apply is one of which looks at the order made and not at the nature of the proceedings. In Ideh v. Godbless Motors (Nig.) Ltd. supra, the Court of Appeal also held that it is the nature of the order made and not the nature of the proceedings that determines whether a decision is final or interlocutory.
I have taken time to examine the case law in some detail because of the principles of law governing the vexed problem of distinction between a final decision and an interlocutory decision. While the principles adumbrated by the courts are useful, what is most important, is for the court to carefully and scrupulously examine the particular matter before it in arriving at a conclusion one way or the other. This is one very difficult area of law, so much so that Lord Denning came to the conclusion that “It is impossible to lay down any principle about what is final or what is interlocutory.” See Salter Rex and Company v. Ghosh (1971) 2 All ER 865 at page 866.
I now come to the crux of the matter. Is a ruling or order on an application for stay of execution, final or interlocutory? The Court of Appeal, (Kaduna Division) provided an answer in Omolowo v. African Newspapers of Nigeria Limited and Another (1991) 8 NWLR (Pt. 209) 371. In that case, both Okunola and Achike, J.C.A., held that a ruling on an application for stay of execution is a final decision. In his lead ruling, Okunola, JCA, said at page 380.
“Both counsel to the parties agreed in their submission that the ruling of this Court on stay of execution that is sought to be reviewed is a final decision. The starting point therefore is to find out what a final decision is. A final decision or order is one which as made finally disposes of the rights of the parties. I agree with both counsel that the order for stay in the instant case is a final order of this court since it had finally disposed of the rights of the parties in the application leading to the order of stay in the ruling under consideration.”
Achike, JCA, added the following in agreement at page 387:
“We shall approach the consideration of the issue from the stand-point that the order of execution made by this Court which is sought to be varied is a final decision. Generally, where a judgment or order finally disposes of the rights of the parties leaving no further reference to itself on the matter in which it has delivered judgment or order, the decision is final. In the case in hand, it is certainly clear that by the grant of the order of stay by this Court the rights of the parties in relation to the order became final. It was therefore a final order in respect of which the court was completely functus officio”.
Ogundere, JCA., thought differently. To the learned Justice, the order is not a final one. He said at page 385:
“In my humble opinion, an order of stay of execution is not a final order as it does not dispose of the issue in the case, namely damages for libel. If the appeal is lost the stay order abates. The order can be reviewed, but only at the instance of the party in whose favour the order was made, namely the defendant/appellant judgment debtor, herein in order to obtain more favourable conditions.”
With respect, I have no difficulty in going along with the decision of the Court, which is that of Okunola and Achike, J.J.C.A. In my humble view, the finality, of a decision is determined from the point of view of the court which gave the decision. And that court may be the final court as in this appeal or a Court of Appeal as in Omolowo. Whatever is the situation, the relevant question is whether the court which gave the decision can still competently give another decision in respect of the matter. If the court no more has jurisdiction to hear the matter and gives another decision on the ground of the conclusiveness of its earlier decision, that decision is final. The issue of finality is not determined from the point of view of the existence of an appellate decision or the possibility of an appeal. If the position was to be so, then only decisions of the Supreme Court could have qualified for the cognomen “final decision”. But that will be ridiculous. It is not even a mere ridicule, but not the law.
I have raised the issue of a concomitant appellate decision because that is one source of the confusion in the matter. The moment the possibility of an appellate decision is divorced from the matter and the element of non-existence of further reference to the court which gave the order, worked into it, the confusion will be greatly reduced. The courts have dealt with the point. In Akinsanya v. UBA., supra., the Supreme Court held that an order of court is final if the court orders something to be done according to the answer to the inquiries, without anyfurther reference to it. The operative words are italicized. See also Okokhe v. Obadan and Others supra. In Ayu v. Madugu (1991) 2 NWLR (Pt. 171) 92, Ndoma-Egba, JCA put the position beautifully at page 100:
“A final order or decision ends the dispute between the parties over a specified subject matter or/ and permanently sets it at rest in the court which pronounced it. It terminates the litigation on merit and leaves nothing for the court to do but execute judgment unless it is set aside on appeal, with a stay of execution intervening.”
Let me still examine further this fairly troublesome aspect of the law in the light of the decided cases indicated above. An application for a stay of execution, in my humble view, is a valid cause of action, which can therefore be determined to finality. I should also say that it is a distinct and separate cause of action, and not in anyway dependent on the judgment or ruling which gives rise to it. If it is a cause of action, why should decisions on it lack the capacity of finality? I do not know why it should be so.
The case law is clear on the point that the rights of the parties should be finally determined. I pose three questions: Does a ruling on a stay of execution not determine the rights of the parties? And is such determination not final? If so, what is left? In my view, a ruling on a stay of execution determines the rights of the parties, who are the applicant and the respondent. This is by either granting the application or refusing it. Such a determination is final because the trial Judge, in the instant case, has no more jurisdiction to deal with the application. That is the element of the expression, “without any further reference to it”, in Akinsanya and the group of cases. In Omolowo, Achike, J.S.C used the similar expression of “no further reference to itself’ on the matter in which it has delivered judgment or order. Since Omolowo decided on the issue involved in this application, it is directly relevant.
It is clear from the case law above that for a decision to be final, it must affect the status of the parties. I ask: does a ruling on an application for stay of execution not affect the status of the parties? Of course, it does. Whichever way the decision goes the status of the applicant and the respondent are affected. Does the ruling not dispose of the rights of the parties in the trial court? Of course it does. If it does not, what is left? Did the learned trail Judge deal with the merits of the application for stay of execution? Of course he did, and in his 6- page ruling. The learned trial Judge said at page 6 of the ruling which is page 127 of the Record:
“For the reasons I have given above, I am of the firm view that having regard to the nature of the award, the maintenance of status quo until the final determination of the appeal will meet the justice of the case. Finally, I observe that as no reasons were adduced why the whole of the judgment debt should be transferred to an independent bank – First Bank PLC, New Market Road, Onitsha, the application in that regard is refused. The application for a stay of execution of the judgment in this suit is granted. And. it is the order of this court”.
It is the case law that we prefer the nature of order test. Applying that test, can it be said that the above order is not final? If it is not, then, what is a final order? In the light of the above analysis of the legal position, the preliminary H objection fails and it is hereby dismissed. Mr. Izundu informed the court that if his preliminary objection fails, he will not oppose the motion dated 12th March, 1997. I therefore grant the motion as prayed. Departure from rules of this court is granted. The Record of Appeal compiled and served is deemed properly compiled and served. The appellant’s brief of argument already filed is deemed properly filed and served. I award N1,000.00 costs in favour of the respondent.
Other Citations: (1997)LCN/0272(CA)
