Igwe Iloegbunam Ajuta Ii & Ors V. Christopher Ngene & Ors (2001)
LawGlobal-Hub Lead Judgment Report
UBAEZONU, J.C.A.
The appellants sued the respondents at the Anambra State High Court in Amawbia/Awka Judicial Division claiming as follows:
- Declaration that the plaintiffs in possession are entitled to customary rights of occupancy in respect of the “Ofia Owele” land.
- Perpetual injunction to restrain the defendants from further trespassing on the said land.
- One hundred naira damages for trespass.
Upon service of the writ on them the defendants/respondents filed a motion to strike out the suit on the ground that the suit constitutes an abuse of the process of the court. Learned counsel for the respondents duly moved the motion which suffered a number of adjournments for counsel for the appellants to reply. When on 1/7/97 learned counsel for the appellants was absent in court due to his engagement in another court, the learned trial Judge of the lower court struck out the suit for want of diligent prosecution. It is against that order of striking out that this appeal has come to this court.
Parties have exchanged their briefs to this appeal. The appellants formulated five issues for determination from their five grounds of appeal. The issues are:-
“1. ISSUE I: (FROM GROUND (sic) 1&2)
Whether the trial Judge was right and exercised his discretionary powers both judiciously and judicially in the interest of justice when he struck out the suit as he did, by reason of the plaintiffs’ counsel letter requesting adjournment in the circumstance of the case.
- ISSUE 2: (FROM GROUND 1)
Whether the refusal of adjournment by the trial Judge in the circumstance, and the striking out of the entire plaintiff’s suit, is not a complete denial of fair hearing to the plaintiffs in this suit.
- ISSUE 3 (FROM GROUND 3)
Whether the trial Judge was right when he held that the absence of the respondents’ counsel in court on the date of hearing, meant in law that there was no opposition to the applicants’ motion, and that there was no counter- affidavit, notwithstanding the counter-affidavit filed and argued in the course of the same motion before hearing began de novo.
- ISSUE 4: (FROM GROUND 4)
Whether the trial Judge was right in not taking judicial notice of process filed and contained in the case filed before him, and thereby arrived at the conclusion that the counter-affidavit upon which the plaintiffs/respondents argued the motion before the court earlier, was not counter-affidavit; Or, in the alternative, whether the trial Judge adequately considered material evidence before him when he arrived at his conclusion that the respondents did not oppose the applicants’ motion or that the respondents were not interested in prosecution of their suit.
- ISSUE 5: (FROM GROUND 5)
Whether the trial Judge acted rightly in law and in keeping with the justice of the case, when he elected suo motu and showed a preference over issues to be tried, ever before hearing arguments from the parties; in other words, whether the trial Judge held the proper balance of justice between the parties as an impartial arbiter in the circumstance of the case.”
Arguing his first issue in his brief, learned counsel for the appellants submits that the learned trial Judge of the lower court did not exercise his discretion judicially and judiciously in striking out the suit and in awarding heavy costs despite the fact of counsel’s application in writing for an adjournment, and despite the fact that the appellants were present in court. It is argued that the learned trial Judge ought to have granted an adjournment since counsel was engaged in a superior court and in a personal case. Learned counsel charged the learned trial Judge of bias and refers to Salu v. Egeibon (1994) 6 NWLR (Pt. 348) 23; 223 at 229.
On issue No. 2, learned counsel argues that the striking out of the suit with heavy costs in the presence of the appellants was a case of denial of fair-hearing. Counsel refers to Obikoya v. Wema Bank Ltd (1989) 1 NWLR (Pt. 96) 157 at 159-160; Isiyaku Mohammed v. Kano N.A. (1968) 1 All NLR 424; Atano v. Att-General for Bendel State (1988) 2 NWLR (Pt. 75) 201 at 202; Ariori v. Elemo (1983) 1 SCNLR 1; (1983) 1 S.C. 13 at 23-24.
On issues 3 and 4 learned counsel complains about the trial Judge’s remarks that there was no counter-affidavit in opposition to the motion when in fact there was one. Such a decision, learned counsel describes as perverse. Counsel refers to a number of decisions vis:
“(1) Onuoha v. The State (No. 1) (1988) 3 NWLR (Pt. 83)460; 20 at 24;
(2) Egbunike v. A.C.B. Ltd. (1995) 2 NWLR (Pt. 375) 34; 58 at 62 & 78;
(3) Mogaji v. Odofin (1978) 4 S.C. 91.
(4) Imah v. Okogbe (1993) 9 NWLR (Pt. 316) 159;57 at 63&77;
(5) Adeyemo v. Arokopo (1988)2 NWLR (Pt. 79)703; 1at 1-6;
(6) Chief Gani Fawehinmi v. Halilu Akilu (1987)4 NWLR (Pt. 67) 797; 151 at 163; 229
(7) Adeyeye v. Ajiboye (1987) 3 NWLR (Pt. 61) 432; 1 at 4 and 22;
(8) Olubode v. Salami (1985) 2 NWLR (Pt. 7) 282 at 283-4;
(9) Sylvanus Obi v. Owolabi (1990) 5 NWLR (Pt. 153) 702 at 704-5;
(10) Mamudu Dantata v. Comm. of Police (1958) NRNLR 3.
On issue No. 5, learned counsel again imputes bias against the learned trial Judge.
On being served with the appellant’s brief of argument, learned counsel for respondents filed his brief of argument and therein formulated three issues for determination. Learned counsel also gave notice of a preliminary issue for determination in his brief. In his preliminary issue counsel argues that the appeal is incompetent. He submits that the appeal is interlocutory. No leave either of the lower court or of this court was obtained before the appeal was filed. It is submitted that the decision challenged in this appeal merely struck out the suit, and did not finally determine the rights of the parties with respect to the subject matter of the suit.
Learned counsel submits that the appellants can only appeal against the decision of the lower court as of right if the decision of the lower court is a final decision or if the grounds of appeal in an interlocutory decision raise grounds of law only. Counsel refers to a number of decided cases vis:
Nwadike v. Ibekwe (1987) 4 NWLR (Pt.67) 718.
Ogbechie v. Onochie (No.1) (1986) 2 NWLR (Pt. 23) 484.
Williams v. Nwosu (1994) 3 NWLR (Pt.331) 156.
Counsel proceeded to show that the five grounds of appeal are at best on mixed law and facts, and therefore leave of court is required. I shall return to this in due course if the need arises. It is submitted that where leave is required but not sought for and obtained, the appeal is incompetent – refers to G.O.C. v. Adio (1995) 2 NWLR (Pt. 379) 570
It is submitted that since the appeal is interlocutory in nature, the appeal can only be lodged within 14 days from the date of the decision appealed against. The decision appealed against was handed down on 1/7/97. The notice and grounds of appeal was dated 22/9/97. No application for extension of time within which to appeal was filed, or argued nor was any extension of time granted. The appeal, counsel submits, is incompetent and should be struck out.
As was mentioned earlier in this judgment, the respondents formulated 3 issues for determination in their brief of argument. They are:
- In all the facts and circumstances of this suit, was the learned trial Judge justified when, inspite of an application for a further adjournment of the case by the plaintiffs/appellants’ counsel, he struck out the suit?
- What is the effect of the learned trial Judge’s statement that the plaintiffs/respondents did not file any counter- affidavit to the motion to, inter-alia, strike out the suit filed by the defendants/respondents on his order striking out the suit?
- Did the learned trial Judge compromise his position as an impartial umpire at any stage of the proceedings?”
Arguing issue No. 1, learned counsel submits that having regard to the facts and circumstances of the case, only an order striking out the suit would have served the ends of justice. At the time, the suit was struck out, it was already 9 years old and still pending in the court. It is submitted that counsel for the appellant showed unwillingness to prosecute the case despite the order of the lower court on 20/5/97 that the case must go on 1/7/97 to which it was adjourned.
On issue No. 2, counsel submits that the core-basis for striking out the suit was not whether or not a counter-affidavit was filed by the appellant but the repeated failure of counsel for the appellant or his representative who had always appeared previously, to appear on 1/7/97 and reply to the argument to strike out the suit. It is not every error or mistake, counsel submits, that would lead to a decision being set aside on appeal. It is only such errors that so fundamentally affect the decision that would lead to a reversal of the order on appeal- see Ishola v. Ajiboye (1998) I NWLR (Pt. 532) 71; Osolu v. Osolu (1998) 1 NWLR (Pt. 35) 532.
Arguing the issue No. 3, learned counsel describes the charge of bias against the learned trial Judge as most uncharitable. The record, counsel submits, does not support the charge.
In court, each counsel adopted his brief. Learned counsel for the appellants referred the court to the case of Ebokam v. Ekwenibe & Sons Trading Co. Ltd. (1999) 10 NWLR (Pt. 622) 242 on the preliminary issue raised by the respondent’s counsel in his brief. He submits that in the light of the said decision by the Supreme Court, the decision of the lower court on 1/7/97 was a final decision. Obi Akpudo Esq., learned counsel for the respondents in his reply submits that the order striking out the suit for want of prosecution does not dispose of the rights of the parties and therefore the decision was not a final decision but interlocutory. He submits that the decision in Ebokam v. Ekwenibe (supra) does not overrule Nwadike v. Ibekwe (1987) 4 NWLR (Pt. 67) 718; Ogbeckie v. Onochie (No. 1) (1986) 2 NWLR (Pt. 23) 484; Williams v. Nwosu (1994) 3 NWLR (Pt.331) 156. He also refers to Nireko v. First Bank (Nig.) Ltd. (2001) 1 NWLR (Pt. 695) 436. Incidentally, both the Ebokam’s case (supra) and the Nireko case (supra) were my decisions in the Court of Appeal.
I shall first of all consider the preliminary issue raised by learned counsel for respondents. If I find in his favour that this appeal is incompetent, that would be the end of the appeal. If on the other hand, I find that the appeal is competent, I will then go into the merits of the appeal.
Now, the main plank of the respondents for contending that the appeal is incompetent is that the decision of the lower court on 1/7/97 whereby it struck out the suit was an interlocutory decision. If it is correct that the decision was interlocutory then under section 25(2)(a) of the Court of Appeal Act the appellants ought to have appealed within 14 days. Again, if the ground of appeal involves a question other than of law alone, under the combined effect of section 220(1)(b) and section 221(1) of the 1979 Constitution (since the appeal was filed in 1997) the appellants would require leave of the lower court or of this court to appeal. It is contended that none of these provisions of the law was complied with.
The crucial question which I must determine, and on which to some extent, hangs the fate of this appeal is- was the decision of the lower court on 1/7/97 final or interlocutory? When is a decision final? When is it interlocutory? I shall attempt to answer the above poser.
A determination as to whether an order or decision is final or interlocutory seems, on the face of it, a simple one. But in actual fact, it is far from being an easy one. In fact, it has been one of perennial difficulty to the courts. As Obaseki JSC observed in Western Steel Works Ltd. & Anor. v. Iron & Steel Workers Union of Nigeria (1986) 3 NWLR (Pt. 30) 617. “The classification of decisions into interlocutory and final has not over the years been an easy one.” I will add that the difficulty continues up to the present time despite efforts by Nigerian and British Judges to find a solution.
Karibi- Whyte JSC opined in Omonuwa v. Oshodin case (supra)
“The difficulty stems from the lack of precision or certainty in the definition of the words, or the uncertainty in the judicial decisions on the issue”
Lord Denning, M.R. has himself asserted that “it is impossible to lay down any principle about what is final or what is interlocutory.” -See Salter Rex & Co. v. Ghosh (1971) 2 All E.R. 865 at 866; See also Technistudy Ltd. v. Kelland (1976) 3 All E.R. 632 at 634.
In Gilbert v. Endean (1878) 9Ch. D 259 at 268-9 Cotton L. J. Said as follows:
“Those applications only are considered interlocutory which do not decide the rights of 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 Blakey v. Latham (1890) 43 Ch.D 23 at pg. 25, Cotton L. J. once again observed:
“Any order, in my opinion, which does not deal with the final rights of the parties, but merely directs how the declarations of right already given in the final judgment 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.”
On final judgment he said:
“I cannot help thinking that no order in an action will 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.”
In Re: Faithful Ex parte Moore (1885) 14 QBD 627 at 629 the Lord Justice once again said;
“I think we ought to give to the words ‘final judgment’ in this subsection their strict and proper meaning, i.e. a judgment obtained in an action by which a previously existing liability of the defendant to the plaintiff is ascertained or established unless there is something to show the use of the words in an extended sense.”
In Standard Discount Co. v. La Grange (1677) 3 CPD 67 at 71 Brett L.J. opined as follows:
“No order, judgment or other proceedings, 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 in favour of the plaintiff, it is conclusive against the defendant, whereas if the application for leave to enter final judgment had failed, the matter in dispute would not have been determined.”
I have referred to the above decided cases – English and Nigerian – to show that despite the attempts which have been made to define with a measure of precision the difference between a final and an interlocutory decision, the problem still lingers on. See my judgment in Nireko Enterprises Ltd. v. First Bank Nigeria Plc (supra). In this judgment, I shall, once again, make my humble contribution towards charting this legal sea which has defied several attempts at bringing certainty, or should I say sanity to it.
Two distinct tests have been propounded. One of the tests is the one propounded by Lord Alverstone C.J. in Bozson v. Altrincham U.D. C. (1903) 1 K.B. 547 where the Learned Chief Justice of England 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 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.”
This is the “nature -of-the-order test.” The other test is the one propounded by Lord Esher M.R. in Salaman v. Warner (1891) Q.B. 734 at 735. Said the Master of the Rolls:
“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 purposes 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.”
This is the “nature -of-the- proceeding – test.” In England as in this country, the ‘Nature-of-the-order-test’ as enunciated in Bozson’s case has been preferred and followed – This has been demonstrated by a number of decided cases in this country. – See Blay v. Solomon (1947) 12 WACA 175; Ude v. Agu (1961) 1 SCNLR 98; (1961) All NLR 65; Chike Obi v. D.P.P. (No.2) (1961) All NLR 458; (1961)2 SCNLR 164; Adegbenro v. Akintola (1962) 2 SCNLR 188; (1962) 1 All NLR 442; Aqua Ltd. v. Ondo State Sports Council (1988) 4 NWLR (Pt. 91) 622; Akinsanya v. UBA Ltd (1986) 4 NWLR (Pt. 35) 273; Omonuwa v. Oshodin (supra). Akamuja Oguntimehin v. Tokunbo
(1957) 2 SCNLR 187; Afuwape & Ors. v. Shodipe & Ors. (1957) 2 FSC 62; (1957) SCNLR 265; Alaye of Effon v. Fasan. (1958) SCNLR 171; Ojora & Ors. v. Odunsi (1964) NMLR 12. To mention a few
In the recent case of Clement Ebokam v. Ekwenibe & Sons Trading Co. Ltd. (1999) 10 NWLR (Pt. 622) 242 the Supreme Court once again considered the issue as to whether an order or decision is final or interlocutory. This was a case in which the High Court ordered an arbitration in accordance with an agreement between the parties. At the end of the arbitration, the respondents filed an application before the same High Court seeking to set aside an award in favour of the appellant. The appellant on his part filed another application seeking to enforce the award. Both applications were consolidated and heard by the High Court at the end of which it struck out both applications. The appellant dissatisfied with the order appealed against it to the Court of Appeal and from thence to the Supreme Court. The issue that arose in both appeals was whether the order striking out both applications was a final or interlocutory order. The Supreme Court held that the decision was a final decision because the order striking out the consolidated applications finally disposed of the rights of the parties before the court as there was nothing else about the arbitration pending before the court. The court held, per Kalgo, JSC, that “having regard to the circumstances of this case” the order striking out the consolidated applications is a final decision or order, and not interlocutory. He went on as follows at P. 255
“In this case, the rights of the parties before the trial court have been properly determined when the trial court decided rightly or wrongly to shut them up by striking out the two applications. That decision must be treated as final because there is nothing pending in that court or any other court concerning the arbitration proceedings to which they would go to in order to claim any rights. I so hold.”
Said Belgore JSC at P.255
“Finality of a decision is in the sense that the court giving the decision has nothing more to do with the case. It has as far as that case is concerned decided the matter one way or the other and any further proceedings on it before that court will make it functus officio. In the instant case there is nothing to proceed upon after the trial court had ruled, the case had been disposed of. It is therefore a final decision.”
In the case under consideration in this appeal, the respondent’s counsel argued his application to strike out the suit and after several adjournments for the appellant’s counsel to reply, the learned trial Judge terminated the suit by striking it out. The question now is- Are the facts and circumstances in Ebokam v. Ekwenibe (supra) the same as the facts and circumstances of the case in this appeal?. As stated earlier in this judgment the Ebokam v. Ekwenibe case (supra) emanated from an arbitration award. While one party to the arbitration wanted the arbitration award enforced, the other wanted it set aside. Their two motions having been consolidated and struck out there was no process in the matter which could be done in the High Court. The High Court was completely functus officio in respect of the matter. No process could further be initiated or proceeded upon in the High Court in respect of the matter. In the instant case in this appeal, on account of the dilatory tactics of the appellant’s counsel, the lower court struck out the suit. Unlike the Ebokam case (supra) two courses were open to the appellants vis.
(i) They could appeal to this court as they have done, in which case they have to decide whether the decision striking out the suit was final or interlocutory, so as to know what procedure to observe in the appeal; or
(ii) They could apply to the lower court by a motion to relist the case for hearing.
It is my considered view that so long as there exists the option to relist the case for hearing in the same court, the order striking out the suit is interlocutory. It is interlocutory because the case can still be proceeded with in that same court unlike the Ebokam case where there was nothing to relist in the same court. Order 24 rule 16 of the High Court Rules of Anambra State provides:
“Any cause or matter struck out may, by leave of the court, be relisted on such terms as the court may seem fit.”
This rule of the court presupposes that there will be something to relist; that the case still subsists. In the Ebokam case there was nothing to relist. In this case, the suit can be relisted and tried on its merits subject to the determination of the preliminary objection pending in the lower court. In Ebet v .Kassim (1966) NMLR 123 at 124-5 the Supreme Court per Ademola CJN had this to say:
“When therefore the learned Judge on 31st May, 1963 ordered that the case be struck out with liberty to apply for it to be relisted, the case, in our view, still subsists until an order is made for it to be put on the hearing or cause list. It is our view therefore that it is a pending cause which has been relisted in this case. As Lord Jesse, M.R. put it in Re: Clagett’s Estate, Fordham v. Clagett “A cause is said to be pending in a court of justice when any proceedings can be taken in it. That is the test. If you can take any proceeding it is pending.”
Thus, as I had observed earlier, if a proceeding can still be taken on a matter that is struck out, the striking out order is interlocutory but if the striking out order has put an end to the suit that no proceeding can be taken any more on the suit in the same court, the order is final.
In the light of all the above, I have come to the irresistible conclusion that the order made on 1/7/97 striking out the suit at the lower court was an interlocutory order. The appellants were at liberty to seek to relist the suit or to appeal to this court as they have done.
If they choose to appeal to this court as they have done and as they are entitled to do, they have to observe the provisions of section 221(1) of the 1979 Constitution of Nigeria since the matter was struck out in 1997 and section 25(2)(a) of the Court of Appeal Act 1976. The appellants not having observed the above provisions of the Constitution and the law, the appeal, in my view, is incompetent. The appellants are at liberty to apply to relist the case in the lower court or to appeal properly to this court, Having held that the appeal is incompetent, it is futile considering the merits of this appeal or the conduct of counsel in repeated applications for adjournment which has kept a case in the cause list for 9 years without making a start at the hearing of the suit. This appeal being incompetent is hereby struck out. I award N3000 costs against the appellants.
Other Citations: (2001)LCN/1016(CA)
