W. A. Omonuwa V. Napoleon Oshodin & Anor (1985)

LawGlobal-Hub Lead Judgment Report

G. KARIBI-WHYTE, J.S.C. 

This is a ruling on the preliminary objection brought by the respondents/applicants. Appellants have appealed to this Court from the judgment of the Court of Appeal allowing the appeal of the respondents/applicants. Applicants are the defendants in the High Court, and the appellants in the Court below. The preliminary objection is that there is no appeal before this Court because

(i) The judgment of the Court below appealed against is interlocutory and that appellants require leave of this Court or the Court below to appeal outside the period prescribed by s.31(2)(a) of the Supreme Court Act 1960. Such leave having not been obtained there was no appeal before the Court.

(ii) That the grounds of appeal consist of mixed law and facts and that leave was required before filing them. Relying on S. 213(3) and (5) of the Constitution 1979 and S. 25(2) of the Court of Appeal Act 1976, Counsel asked that the appeal be struck out.

Only the first issue was seriously canvassed because if that succeeded the preliminary objection must be sustained.

I consider it of some assistance to state fairly fully the facts leading to the appeal which gave rise to the preliminary objection. This is because the only issue of law to be determined in this preliminary objection is whether the decision of the Court of Appeal appealed against is interlocutory or final.

On the 4th December, 1978, plaintiff filed a writ of summons against the defendants, claiming a declaration of title to a statutory right of occupancy to a developed piece of land situate at No. 36, Urubi Street, Benin City. He also asked for an injunction restraining the defendants and their servants or agents from further entering or doing anything on the said land. Pleadings were ordered and exchanged. Paragraph 40 of the defendant’s statement of defence averred as follows –

“40. The defendants will contend at the hearing that:-

(i) The plaintiffs being privies of the plaintiffs in the said Customary Court Case No.T.144/71 and Magistrate Court Case No. MB/32N72 and Federal Court of Appeal Case No.FCNB/2/77 with the same subject matter as the one in this suit are estopped from relitigating the issue of title to the said land which had been determined by the said Customary Court of competent jurisdiction whose decision or judgment was upheld on appeal by the Chief Magistrate Court, High Court in Suit No. B/74/75 and Federal Court of Appeal all the proceedings of which shall be relied upon at the hearing.

(ii) The plaintiff having given evidence for the plaintiffs in Suit No. T.144/71 and the plaintiffs in that case having been restrained from interferring with the management of the said house No. 36 Urubi Street, Benin City, the subject matter in this suit, by a court of competent jurisdiction is estopped from bringing any action for declaration, trespass and injunction for trespass. The matter is therefore res judicata.”

On the 12th October, 1979, counsel for the defendant brought a motion to argue the preliminary points of law raised in paragraphs 39, 40 and 41 of the statement of defence. Schedule A to the affidavit in support of this motion stated the preliminary points of law sought to be argued as follows-

(a) That this suit is not maintainable against the defendants/applicants in that the case is res judicata for the following reasons….”

The reasons given as (i) and (ii) correspond with the averment in paragraph 40 of the statement of defence. The third reason is that the action is an abuse of the process of law and also vexatious.

The motion was argued on the 2nd November, 1979, and leave was granted to defendants/applicants to set down for argument the points of law raised in paragraphs 39, 40 and 41 of the statement of defence. The motion was argued on the 21st January and 22nd April, 1980. Ruling was adjourned to 23rd day of May, 1980. The application was refused. The points of law relied upon were rejected and the motion was dismissed. Defendants/applicants appealed against the ruling to the Federal Court of Appeal (now the Court of Appeal). The learned trial judge refused applicant’s application for leave to appeal against the ruling.

Defendants/applicant then on the 23rd September, 1980, sought and obtained leave of the Federal (now) Court of Appeal to appeal against the ruling. The notice of appeal contained only three grounds of appeal. The first ground was that learned judge erred in law when he failed to pronounce on the issue of res judicata which was canvassed before him. This appeal was mentioned on the 17th January, 1983, and the interlocutory appeal was set down for hearing on the 18th April, 1983. The appeal was duly argued on 18th April, 1983. On the 20th July, 1983, the Court of Appeal delivered its judgment and 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.”

It is from this judgment that plaintiff has appealed to this Court. It is important to observe that at the time the Court of Appeal allowed the appeal and quashed the ruling of the learned trial judge, the substantive suit was in obeyance awaiting the outcome of the appeal before the Court of Appeal.

On the 7th October, 1983, nearly three months after, appellant sought leave of the Court of Appeal to appeal against the judgment of 20th July, 1983, and for a stay of the judgment. Counsel for the respondent there, as here, filed notice of preliminary objection that the application was statute-barred in view of s.25(2)(a) of the Federal Court of Appeal Act 1976 and s. 31(2)(a) of the Supreme Court Act 1960. In the course of argument on the objection on the 17th October, 1983, in the Court of Appeal, counsel for the appellant abandoned his application for leave to appeal. He relied on the ground that the decision being final, notice of appeal was within time, and leave was not necessary. He argued only his application for stay of execution of judgment. His application was dismissed with N50.00 costs on the 16th January, 1984.

Counsel for the plaintiff/appellant has appealed to this court, undoubtedly, on the view that the judgment was final and that leave to appeal was not required. Mr. Eghobamien has submitted before us that the appeal is incompetent. In support of this contention, he argued that the appeal before this court being an interlocutory matter requires leave either of the Court of Appeal or of this Court, and that this was neither sought nor obtained. He cited and relied upon Order 7 r. 14 Rules of the Supreme Court 1977, s.213(3) and (5) of the Constitution 1979 and s.31(2)(a) Supreme Court Act 1960. Counsel referred to the judgment of the Court appealed against at p.142 of the printed record. He also referred to the notice of appeal at pages 229-230. Leave to appeal was sought in the Court of Appeal at pages 226-228 and that Court refused at pages 242-244. It was finally submitted that the appeal being interlocutory was statute-barred in view of section 31(2)(a) of the Supreme Court Act 1960.

Mr. Okeaya-lnneh, S.A.N., learned Senior Counsel for the respondent/appellant submitted with much force that there was an appeal as of right where the ground of appeal is one of law, and that in such cases no leave was required. He also relied on S.213(3) of the Constitution 1979. He had already withdrawn in the court below his application for leave to appeal. He is also not seeking any leave to appeal before us since his appeal was filed within three months. Furthermore, he pointed out, that the judgment of the Court of Appeal in the interlocutory appeal before it was a final decision within the definition of section 277 of the Constitution 1979 and there was appeal as of right without leave. The learned Senior Advocate cited the Supreme Court judgment in Automatic Telephone & Electric Co. Ltd. v. Federal Military Government (1968) 1 All NLR. 429.

The issue in Controversy.

It is not disputed that the judgment of the Court of Appeal is a decision within the meaning of the word in s. 277 of the Constitution. As I have indicated in this judgment, the only issue in this preliminary objection is whether the judgment of the Court of Appeal, the subject matter of this preliminary objection is a final or an interlocutory decision. If it is a final decision, then appeal to this Court lies as to right within three months of the date of the delivery of the judgment. If however it is an interlocutory decision, then the right of appeal depends upon whether the ground of appeal is one of law or of fact. Where the ground, as in this case, is one of law, appellant can exercise his right of appeal within fourteen days of the delivery of the judgment without seeking leave of the Court. Leave of the court below or of this court is required in interlocutory decisions after fourteen days. – See Section 31(4) of the Supreme Court Act 1960.

Enabling Constitutional and Statutory Provisions

It is instructive to refer to the express words of s.213(3)(a), which provide –

(2) An appeal shall lie from the decisions of the (Federal) Court of Appeal to the Supreme Court as of right in the following cases (a) Where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings before the (Federal) Court of Appeal.

This provision merely creates the right of appeal. Thus resort must be had to the provisions of s.31(2)(a) of the Supreme Court Act 1960 which specifies the manner of the exercise of the right of appeal conferred on the appellant by s.213(2)(a) of the Constitution 1979.

Section 31(2)(a) of the Supreme Court Act 1960 provides-

(2) The periods prescribed for the giving of notice of appeal or notice of application for leave to appeal are –

(a) In an appeal in a civil case, fourteen days in an appeal against an interlocutory decision and three months in an appeal against a final decision…….”

The exercise of the right of appeal conferred by s. 213(2) of the Constitution 1979, would seem to me to be regulated by the provisions of s.31(2)(a) of the Supreme Court Act 1960, which is an existing legislation, and prescribes the time to appeal. This is because s. 213 of the Constitution 1979 has not prescribed the time for appealing, and does not make the distinction made in s. 31(2)(a) between interlocutory and final decisions. In the absence of s.31(2)(a) of the Supreme Court Act 1960, the time to file appeals would be at large and at the discretion of the appellant. It thus means that there will be an indefinite period within which the right to appeal can be exercised. Hence, it is necessary to determine the exercise of the right of appeal conferred by s.213(2) of the Constitution, within the con of s.31(2)(a), namely whether the issue concerned is interlocutory or a final decision. The question whether a decision is interlocutory or final

The question whether a decision of a court is interlocutory or final, has been one of perennial difficulty for the Courts. This 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. This has prompted Lord Denning M.R., to suggest that “it is impossible to lay down any principles about what is final or what is interlocutory” – See Salter Rex & Co. v. Ghosh (1971) 2 All ER. 565 at p.566 Technistudy Ltd. v. Kelland (1976) 3 All ER. 632 at p. 634. In deed it was suggested in the last mentioned case that, “the only thing to do is to go to the practice books and see what has been done in the past.”

Whilst this approach may provide a useful guide, the problem marches on. I think that in a matter of this nature despite the elusive imprecision of decided cases, the ideal is to provide a workable test for the determination of the issue when it arises, instead of relying on examples. It is admitted that so far, the authorities on the issue are not uniform. I shall however classify them and endeavour to suggest a test which in my opinion is acceptable in principle and workable in practice. Although s. 277 defines the word “decision” in relation to court, as “any determination of that Court and includes judgment, decree, order, conviction, sentence or recommendation”, there is no definition of the words “final” or “interlocutory” either in the Rules of Court, Supreme Court Act, Court of Appeal Act or in the Constitution. In the circumstances resort ought to be had to the judicial decisions. In Gilbert v. Endean (1875) 9 Ch.D. 259 at pp. 268, 269, Cotton, L.J. said,

“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 statu 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.”

Again in Blakey v. Latham (1889) 43 Ch. D. at p. 25, Cotton L. J. said,

“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.”

I do not think there is any dispute as to the correctness of the above dicta with regard to the definition of an interlocutory application and the resulting order or judgment. I accept it as the correct definition.

There are also judicial definitions of what is a final judgment. In In re Faithful, Ex parre Moore (1885) 14 QBD. 627, Cotton, L.J. at p. 629 explained what he said in Ex parte Chinery 12 QBD. 342 as to what is a final judgment. He 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.”

I think the definition of Lopes L.J. in Solomon v. Warner (1891) 1 QB. 734 at p. 736, would seem to me the same but is more precise. His Lordship said,

“I think a judgment or order would be final within the meaning of the rules, when, whichever way it went, it would finally determine the rights of the parties.”

This case followed the earlier decision of Standard Discount Co. v. La Grange (1877) 3 CPO. 67.

In Blakey v. Latham (1889) 43 Ch. D.23 C.A., Cotton L.J., construing the Rules of the Supreme Court, 1883 Order LVIII r. 15. Cotton 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 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.”

His Lordship went on to add at p. 25 –

“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 Bozson v. Altrincham Urban District Council (1903) 1 KB. 547 Lord Alverstone, C. J., agreeing with the Earl of Halsbury L.C. said at pp. 549-550

“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 it does not, it is then, in my opinion an interlocutory order.”

See also Egerton & Ors. v. Shirley (1945) 1 KB. 107.

It would seem clear from the cases and the dicta cited that two tests for determining what is interlocutory or what is final have emerged from the cases. There are the cases which adopt the nature of the application to the Court as the determining factor whether the judgment or order is interlocutory or final, and there are others which consider the nature of the order made. Whereas Gilbert v. Endean; Blakey v. Latham (supra); Salter Rex & Co. v. Ghosh (supra) the Technistudy Ltd. v. Kelland (1976) 3 All ER. 632 represent the first view, Solomon v. Warner (supra); Bozson v. Altrincham UDC (supra); Blay & Ors. v. Solomon (1947) 12 WACA. 175, represent the second view. It seems clear to me from the cases in this jurisdiction, that the tests in the second class of case has been adopted and applied. The test laid down by Lord Alverstone in Bozson v. Altrincham U.D.C. (supra) has been consistently applied.

In Akaniya Oguntimehin (The Oloja of 19boruwo) v. Omotoye (1956) 2 FSC. 56, the learned trial judge made an order transferring one of the issues in an action pending before him in the Benin High Court to a Native Court for decision. Plaintiffs appealed against the order. In the Federal Supreme Court the question arose whether the order for transfer is final or interlocutory since no appeal lies from an interlocutory order without leave which in this case has not been obtained. Nageon de Lestang, F.J. delivering the judgment of the Court referred to the test laid down in Bozson v. Altrincham U.D.C. (supra) and said at p. 57 –

“That test has been applied in a number of cases, and applying to the present case, I should have thought that it was unarguable that the order under consideration is interlocutory.”

In Blay & Ors. v. Solomon (1947) 12 WACA. 175, the action was for possession of property, account of profits and for partition or sale. The trial judge ordered that an account as between the respondent and third appellant be filed, and that the property be sold by auction. Defendant appealed. Counsel for respondent raised the preliminary objection that the judgment appealed from being interlocutory was out of time, not having been brought within fourteen days of the date of the decision as prescribed by S.11(2) West African Court of Appeal Rules 1937. Verity, C.J., delivering the judgment of the Court referred to Bozso” v. Altrincham UDC (supra) and Ex parte Moore, In re Faithful (supra) and applied the principles enunciated in these cases as conclusive of the case before the Court. His Lordship said, at p 177-

“The terms of the judgment 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 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 plaintiffs claim against either the first or the 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 judgment appealed from is interlocutory decision.”

This judgment was followed in Afuwape & Ors. v. Shodipe Ors. (1957) 2 FSC. 62, where it was put very succinctly as follows at p. 68-

“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.”

In Alaye of Effon v. Fasan (1958) 3 FSC. 68, the appeal was against the refusal of the trial judge to set aside the order striking out the suit for non-appearance of plaintiff/appellant. The notice of appeal was within time if regarded as a final decision, but out of time if interlocutory. Onyeama, Ag. J., held it was interlocutory and dismissed the application. Appeal to the Supreme Court was dismissed. Coussey, Ag. F.J. at p. 69, referred to the dictum of Foster-Sutton P in Bansah v. G.B. Ollivant Ltd. 14 WACA. 408, where the latter said,

“The question for determination is – does the order under appeal finally disposed of the rights of the parties In our view it does not. In re Jerome and Peck v. Peck (1948) 2 All ER. 229, if the learned trial judge had agreed to review his judgment that decision could clearly not have 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.” I refer also to Nabbarn v. Nabbam (1967) NMLR. 130, which was decided on the preliminary objection whether for the purpose of the appeal an order for a decree nisi in a divorce petition was a final or an interlocutory order. No leave to appeal was obtained before the notice of appeal was given. Brett, J.S.C. delivering the judgment of the Court held that for the purposes of s.117(2)(a) of the Constitution 1963 (unlike s. 213(2) of the Constitution a final decision includes a decree nisi;

although he admitted that a decree nisi cannot be regarded as a final decision for all purposes. It is important to observe here that the court was considering whether an order for a decree nisi was a final order determining the rights of the parties, within the meaning of the expression “final” in s. 117(2)(a) of the Constitution 1963. Brell, J.S.C. was quick to point out before coming to this conclusion; that “Matrimonial causes, with the various issues to which they may give rise (including status, property, alimony and the custody of children) are in a class of their own procedurally) (1967) NMLR. at p.135). There is no doubt that this was the overriding consideration on for the view finally adopted that ‘If the court were to hold that a decree nisi was a final decision for the purposes of appeal but not for the purposes of alimony pendentelite, as in Head – Head, it would not involve any new inconsistency, since that was presumably the position while s.6 of the Federal Supreme Court (Appeals) Ordinance remained in force.” (1967) NMLR. at p. 135)’

With due respect, this reasoning cannot sustain the appeal before us; consistent with the practice of this Court, I cannot conceive of the situation where two final decisions inter partes will be required to determine finally the claim before the court. This invariably will be the result of accepting appellants contention. Nabbam’s case can therefore safely be limited to its facts and the question of decree nisi in divorce petitions which are, admittedly sui generis.

There is clearly no doubt that the principle established in all the above cited cases is that where the decision of the Court does not finally determine the issue or issues between the parties or does not at once affect the status of the parties for whichever side the decision is given, it is interlocutory. The emphasis here is clearly on the nature of the decision.

The dictum of Brett, L. J. has been generally accepted and applied in determining what is a final order or judgment. In Standard Discount Co. v. La Grange (1877) 3 CPD. 67. His Lordship said, at p. 71

“No order, judgment or order proceeding can be final which does not at once affect the status of the parties for which ever side the decision may be given, so that if it is given for 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.

It is for this reason that an order for committal for contempt of court in the course of proceedings is regarded as a final order – See Toun Adeyemi v. Theophilus Awobokun (1968) 2 All NLR. 318. Again an order for non-suit even though disposing of the rights of the parties pro tempore, in the sense that the parties are at liberty to commence proceedings afresh in respect of the same subject matter, is a final order. Thus to determine whether the decision of the Court is final or interlocutory, this must be related to the lis inter partes, and not confined to the function of the court making the order.

Counsel to the appellant/respondent has cited and relied on the Supreme Court decision of The Automatic Telephone & Electric Co. Ltd. v. Federal Military Government of the Republic of Nigeria (1968) 1 All NLR. 428 where the Court held that the decision of the High Court on a reference to it from an Arbitrator was a final decision, because the opinion of the High Court on any question of law referred to it under Section 15 of the Arbitration Act is a decision within the meaning of that word in Section 117 of the Constitution 1963. I do not think this case supports his contention. It is pertinent to state fully the reasons given by the court. Their Lordships said at pp.433-434, “Section 15of the Arbitration Act provides for the reference to the High Court for its opinion on any questions of law arising in the course of the reference.

It is clearly not for the court to determine the issue or issues between the parties for arbitration. That is the duty of the Arbitrator. The duty of the High Court or the Judge is to give its decision on a question or questions of law which has or have arisen in the course of the proceedings. The decision so given mayor may not be final in so for as the Arbitrator is concerned but the particular question or questions is or are final in so for as the High Court or the judge is concerned. The Court in answering the question put to it has finally disposed of the question referred to it. – See the judgment of the Privy Council in Akintola & Aderemi v. Adegbenro (1962) 1 All NLR. 442 at p. 474.”

It is quite clear that Their Lordships followed the Privy Council judgment in Adegbenro v. Akintola & Aderemi as authority. Adegbenro v. Akintola & Aderemi (supra) was decided on the construction of the provisions of S.114 of the Constitution 1960 similar to S.117 of the 1963 Constitution. The contention was whether the decision of the Supreme Court on a reference to it on the interpretation of the Constitution was a final decision of the Court. In coming to the decision that it was a final decision, the Privy Council said,

“…the provisions of this section must as far as possible be read so as to provide for the cases which arise out of section 108. That section provides for the reference to the Federal Supreme Court of questions as to the interpretation of the Constitution and by subsection (3) where a question is referred “the Federal Supreme Court shall give its decision upon the question.” Now the Federal Supreme Court has given a decision in civil proceedings on a question as to the interpretation of the Constitution. Is it a final decision The decision may not be final in the proceedings before the Chief Justice, but so for as the Federal Supreme Court is concerned it is final. The Court has finally disposed of the matter referred to them, namely, the question as to the interpretation of the Constitution. This construction accords with that adopted by Brett Ag. CJF in Dr. Chike Obi v. DPP (No.2) FSC.56 of 1961 (DPP v. Chike Obi (1961)All NLR.458). Their Lordships have accordingly reached the conclusion that the decision of the Federal Supreme Court on the reference under section 108 was a final decision and that an appeal lies as of right to Her Majesty in Council under section 114″. (italics mine)

In these two cases the Court has applied neither the test of the nature of the order nor of the application in determining the application from which the order was made. With due respect this approach has never been the test applicable and clearly not the laws. The Court relied on its function of determining a reference to it, and was not concerned with the determination of the rights of the parties.

In Standard Discount Co. v. La Grange and Salamon v. Warner, the test applied was the nature of the application to the Court, and not the nature of the order made. In Salter Rex & Co. v. Ghosh (1971) 2 All ER. 865, Denning MR considered the test of the nature of the order applied in Bozson v. Altrincham U.D.C., (supra) and observed that although Lord Alverstone C.J.’s test in Bozson’s case may be right in logic, Lord Esher’s test of the nature of the application in Salaman v. Warner, was right in exeperience.

Bozson v. Altrincham U.D.C. (supra) has been approved and applied in our courts. I think this is good reasoning. The defect in relying on the nature of the order made (though still a workable test) as distinguished 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.

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. 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 issue before the Court of Appeal in this appeal arose from an interlocutory matter and does not lose that character because it is an appeal.

The inconvenient and anomaly in the result of the nature of the order test is that an otherwise interlocutory application ends up as a final decision of the Court of Appeal. If this is accepted the anomalous effect of an appeal on such a ‘decision’ is to enlarge the right of appeal of the appellant from the High Court to the Court of Appeal and to this Court. This is despite the fact that the rights of the parties have still not been finally determined as was in the Automatic Telephone & Electric Co. Ltd. v. F.M.G. (1968) 1 All NLR. and Adegbenro v. Akintola & Aderemi (1962) 1 All NLR. 442 at p. 474. In the Automatic Telephone & Electric Co. Ltd. case was a reference to the High Court from an arbitration. Though the High Court disposed of the issue on reference before it, it did not finally determine the rights of the parties in the arbitration; Similarly, the questions on the interpretation of the constitution to be answered in the Federal Supreme Court in the Adegbenro case. The view that a judgment of the Court on an interlocutory matter on appeal before it is final as was held is clearly inconsistent with the principles enunciated in all the decided cases cited in the judgment and with commonsense and experience. As I have said, the test applied in these cases relate to the function of the court in disposing a matter before it, it was not concerned with the determination of the rights of the parties.

Applying the principles enunciated in both tests, i.e. the nature of the application, and the nature of the order, to this appeal, it is inescapable that the judgment of the Court of Appeal, appealed against is an appeal on an interlocutory ruling before the High Court. It is also incontestable that the judgment of the Court of Appeal which remitted the case for trial in the High Court did not finally determine the issues litigated by the parties in the High Court. See Isaacs & Sons. v. Salbstein & anor. (1916) 2 KB. 139, 146. In my opinion, an interlocutory order on appeal ranks as an interlocutory appeal. The judgment of the Appeal Court is a judgment on an interlocutory appeal. It can only assume the character of a final judgment when it finally determines the rights of the parties. To determine finally an issue before the court which does not finally determine the rights of the parties, does not rank as determining the rights of the parties in the case and in my opinion is not a final judgment inter partes.

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 FSC. 68. 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 FSC. 62 at p. 68. 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.

Conclusion

I have already stated in this judgment that where the ground of appeal is one of law, an appeal lies to this court from the decisions of the Court of Appeal as of right. The exercise of the right of appeal is however limited by the provisions of section 31(2)(a) which prescribes the time within which to appeal. I am satisfied that the judgment of the Court of Appeal on the interlocutory application is an interlocutory and not a final judgment, since it does not finally determine the rights of the parties in the action. Appeal in respect thereof must be brought within fourteen days of the delivery of the judgment.

Mr. Okeaya-Inneh is erroneously of the view that the judgment is final and consequently has up to three months to bring the appeal. The preliminary objection is therefore upheld. The appeal is therefore incompetent and is hereby struck out. Defendant/applicant is entitled to the costs of this application which I assess at N25.00G. S. SOWEMIMO, C.J.N. (Presiding): I have had the privilege of reading, in draft, the very clear and exhaustive judgment of my learned brother, Karibi-Whyte, J.S.C., and I entirely agree with his reasoning and conclusions. The preliminary objection is up-held with N25.00 costs as assessed by him.

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SC.151/1984