Western Steel Works Limited & Anor. V. Iron And Steel Workers Union Of Nigeria & Anor. (1986)

LawGlobal-Hub Lead Judgment Report

OBASEKI, J.S.C.

The respondents in this appeal seek (1) order of dismissal of the appeal for want of prosecution or alternatively, (2) an order striking out the appeal for non-compliance with section 31 of the Supreme Court Act 1960 or more expressly, for filing their notice of appeal outside the statutory period for filing notice of appeal against interlocutory decisions.

The grounds upon which the application for dismissal was brought as stated in the applicants’ notice of motion are:

“(1) The record of appeal was received by the appellants on the 18th November, 1985;

(2) The appellants ought to have filed their appellants’ brief on or before 27th January, 1986;

(3) As at 28th January, 1986, no brief has been filed by the appellants.”

The grounds on which the alternative prayer was founded are:

(1) Judgment was delivered by the Court of Appeal on 17th July, 1985;

(2) The decision of the Court of Appeal was on an appeal against the interlocutory decision of the Lagos High Court;

(3) The appellants then ought to have appealed against the decision of the Court of Appeal on or before 1st August, 1985;

(4) The notice of appeal was not filed until 9th August, 1985.”

Having regard to the relative importance of the grounds, I shall deal first with the alternative prayer i.e. the, prayer to strike out the appeal. This prayer raises two issues or questions for determination. The first issue raised is whether the decision of the Court of Appeal was an interlocutory decision or a final decision and the second is whether the notice of appeal was filed out of time. Depending on the nature of the decision, two different periods are prescribed for filing notices of appeal against the decisions of the Court of Appeal to the Supreme Court by Section 31(2)(a) of the Supreme Court Act 1960. One period governs appeals against interlocutory injunction and the other period governs appeals against final decisions. Where the decision is interlocutory, the sub-section prescribes a period of 14 days and where the decision is final, the sub-section prescribes a period of 3 months within which the notice of appeal must be filed. More particularly, the subsection reads:

“2. The periods prescribed for the giving of notice of appeal or notice of application 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;

(b) x x x x x x x x x x x x x x x x x

It is observed from the records that the appellants on receiving notice of this motion filed an application for (1) an order of extension of time within which to file the appellants’ brief; (2) An order directing the Assistant Chief Registrar in charge of litigation in the Lagos High Court or any appropriate officer to produce the file on suit No. LD/1285/85 was filed before the Lagos High Court. The grounds on which the application inter alia was based included:

“(1) The appellants would have filed their brief in time if their solicitors had seen the record of appeal before the expiration of the time within which to file the appellants’ brief;

(2) The application of the appellants before the Lagos High Court under Order 8 Rule II of the Rules of that Court challenged the jurisdiction of the Lagos High Court to adjudicate on the respondents’ suit No. LD/1285/82;

(3) The decision of the Court of Appeal based on the said Ruling of the Lagos High Court is in the premises not interlocutory.”

At the oral hearing of the motion, learned counsel in their submission repeated the grounds set out above in support of their contentions. Having heard counsel submissions and read their brief, I ask myself the question: ‘what was the application before the High Court and the Ruling of the High Court on it’ The application before the High Court was by summons under Order 8 Rule II of the High Court of Lagos Civil Procedure Rules 1972 and was for an order

“setting aside the above writ and service thereof on the ground that the writ is incurably defective.”

The grounds on which the application was based included, inter alia, the following:

“(1) The appellants would have filed their brief in time if their so that the plaintiffs’ claims deal with the operation and management of a limited company;

(2) that the High Court of Lagos lacks jurisdiction to entertain the plaintiffs’ suit;

(3) that jurisdiction over the plaintiffs’ suit has been conferred by section 7(c)(i) Federal High Court Act No. 13 of 1973;

(4) that the jurisdiction of the States High Courts over the plaintiffs’ suits has been expressly ousted by section 8(1), Federal High Court Act No. 13 of 1973 and section 230(1) and (2) Constitution of the Federal Republic of Nigeria, 1979.

After hearing the submissions of counsel, the High Court, Oladipo Williams, J. held that the Court which has jurisdiction in the matters in dispute between the parties is the National Industrial Court and for that reason he declined jurisdiction. More particularly, he, in the closing paragraphs of his ruling observed and commented:

“Learned counsel for the plaintiffs submitted that the writ and the statement of claim as framed showed a case which can be heard in this Court on a true interpretation of section 79 of the Labour Act 1974 No. 21. It is my opinion with respect that the jurisdiction granted in section 79 of the Labour Act was to courts inferior to the High Court and in respect of settlement of disputes unlike trade disputes as provided for in the Act. x x x xx x x x x x x x x x x x x x x x x x

It seems to me that if section 14(1) of the Act is read with section 15(1) and (2) of the Act, the Court which has jurisdiction in the mailers in dispute between the parties is the National Industrial Court because it is in that court that the matters of the trade dispute which includes those of lock out and layoff of the plaintiffs’ unions’ members and the matters of the interpretation of the collective agreement between the parties can be finally determined.

For these reasons, I think that this court should decline jurisdiction.

Accordingly, his application and the substantive suit are hereby struck out.”

The matter then went on appeal to the Court of Appeal. The Ruling of the High Court was delivered on the 3rd of April, 1984 but the notice of appeal was filed on the 18th day of April, 1984 – 15 days later.

After the written briefs and oral submissions of counsel, Nnaemeka-Agu, JCA. (with whom Ademola and Mohammed, JJCA. agreed), in the penultimate paragraph of his judgment said:

“For all these, it is my view that the matter is within the jurisdiction of the State High Court and so the learned judge was in error to have declined jurisdiction” and remitted the case for trial before another judge.”

Against this judgment, the notice of appeal which the plaintiffs, respondents/applicants contended had been filed out of time was given and the grounds of appeal raised inter alia the issue of jurisdiction.

It is common ground that the notice of appeal against the decision of the Court of Appeal was filed on the 9th of August, 1985 and that the decision appealed against was delivered on the 17th day of July, 1985. Both parties to this appeal are however not agreed as to whether the decision of the Court of Appeal was final or interlocutory.

While the plaintiffs/respondents/applicants’ counsel contends that the decision is interlocutory, the defendants/appellants/respondents’ counsel contends that it is final. The classification of decisions into interlocutory and final has not over the years been an easy one. While the word decision is defined in section 277 of the Constitution of the Federal Republic 1979 neither interlocutory decision nor final decision is defined anywhere in the Constitution.

Various tests have been used by different judges to ascertain the true nature of the decision. Some judges have based their decisions on the nature of the application before the court leading to the order. Others have based the classification on the nature of the order made. I agree with Lord Denning, MR. when he observed that it is impossible to lay down any principles about what is final and what is interlocutory in Salter Rex & Co. v. Gosh (1971) 2 All E.R. 865 at p.866 and Technistudy Ltd. v. Kelland The learned Master of the Rolls said:

“The question of ‘final’ or ‘interlocutory’ is so uncertain that the only thing for practitioners to do is to look up the practice books and see what has been decided on the point.”

Recently, in this Court in the case of W. A. Omonuwa v. Napoleon Oshodin and Anor. (1985) 2 SC. 1 at 19, Karibi-Whyte, JSC, said and was of the view that “This difficulty stems from the lack of precision or certainty in H the definition of the words or the uncertainty of Judicial decisions on this issue.”

After a critical examination of a host of decided cases in search of an acceptable test he observed at p. 31:

“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.”

Whenever the question of jurisdiction of any court is raised, it is a question that touches the competence of the Court that is raised. It does not raise any issue touching the rights of the parties in the subject matter of the litigation or dispute. Indeed, in our jurisprudence, only a court of competent jurisdiction can adjudicate on issues touching the rights of the parties. A Court that has no jurisdiction to entertain the matter before it cannot exercise judicial powers in respect of that matter. Any such exercise is a nullity and the proceedings and judgment as a result of that exercise are all null and void. It is therefore of paramount importance that a court in our judicature must satisfy itself that it has jurisdiction before embarking on the exercise of judicial power on the matter in dispute before it.

Before proceeding further, some of the various attempts at defining ‘final’ and ‘interlocutory’ decisions may be examined. Cotton U. in Gilbert v. Endean (1875) 9 Ch.D. 259 at pages 268, 269, said of interlocutory applications:

“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.”

and in Blakey v. Latham (1889) 43 Ch. D. at p.25, dealing with “Order made by the Court said:

“Any order, which, in my opinion, does not deal with the final rights of the parties but merely directs how the declaration of rights 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 the final decision. “

(Italics mine).

What did Cotton, LJ, have to say of ‘Final Judgment’ In re Faithful exparte Moore (1885) 14 QBD. 627, the learned Lord Justice, Cotton, U. at p.629 explained what he said in Ex parte Chinery 12 QBD 342 as to what is a final judgment as follows:

“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.”

If a declaration that a court has no jurisdiction brings an action before it to an end, the decision does, in my view, seem to partake of the nature of final decision for nothing more can be done in the prosecution of that case before the court. It finally concludes the rights of the parties to approach that court for a remedy. Similarly, if a court gives a declaration that it has jurisdiction, it concludes the rights of the parties to approach that court for a remedy. When an objection to jurisdiction is raised, the issue raised touches the right of the parties to approach the court to adjudicate on the cause or matter before it. In other words, it is the right of the plaintiff to invoke the judicial powers of the court that is in issue and any decision on the issue concludes the matter either way and partakes of the nature of final decision.

Lopes, LJ, in Salanan v. Warner (1891) 1 Q.B.D. 734 at 736 giving a more precise characterization of final judgment or order said:

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

Cotton, LJ. giving further emphasis to this view said in Blakey v. Latham (supra) 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. Altrinchan Urban District Council (1903) 1 K.B. 547, Lord Alverstone, CJ. in concurrence with Earl of Halsbury, L.C. on the point 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;/Jut if it does not, it is then, in my opinion, an interlocutory order ….

The dictum of Brett, U. in Standard Discount Co. v. La Grange (1877) 3 C.P.D. 67 at 71 has been generally accepted and applied in determining what is a final judgment or order. At -71, Brett, LJ. 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 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.”

Hence, an order of non-suit even though disposing of the rights of the parties pro tempore in the sense that the parties are at liberty to commence proceeding afresh in respect of the same subject matter is a final order.

The issue in the instant appeal got to the Court of Appeal as an appeal from the determination of the High Court on the issue of jurisdiction. The case having been remitted to the High Court for trial the decision of the Court of Appeal declaring that the High Court has jurisdiction may not appear to be final in the proceedings before the High Court but as far as the Court of Appeal is concerned, it is final. The Court has finally disposed of the fundamental question of jurisdiction and it is a final judgment for purposes of appeal to this Court. See Automatic Telephone & Electric Co. Ltd. v. Federal Military Government of the Republic of Nigeria (1968) 1 All NLR. 428 at 431- 434; Adegbenro v. Akintola & Aderemi (1962) 1 All NLR, 442 at 474 PC. Although these two cases received the critical comment of Karibi-Whyte, JSC, when he said at p.32 of Omonuwa v. Oshodin (1985) 2 SC.1:

“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 this judgment and with commonsense.”

those two cases reinforce the difficulties observed by Lord Denning, MR. and my learned brother, Karibi-Whyte, JSC, in finding any principles B applicable in all cases for the ascertainment of what is final and what is interlocutory order or judgment. Even then, the order of the learned trial Judge brought the proceedings to an end and partook of the nature of a final order.

The Ruling of the Court of Appeal in Agbaje v. Attorney-General of the Federation (1986) 2 NWLR. 528 where this question of whether a ruling on an issue of jurisdiction raised in limine is final or interlocutory was considered is apposite and I fully adopt it with approval the ruling that a dismissal on grounds of want of jurisdiction is a final judgment. It is a Court of Appeal decision.

A Court can only he competent if among other things, all the conditions to its having jurisdiction are fulfilled. A Court is competent when:

“(1) it is properly constituted as regards numbers and qualifications of the members of the Bench and no member is disqualified for one reason or another; and

(2) the subject matter of the case is within its jurisdiction and there is no feature of the case which prevents the court from exercising its jurisdiction; and

(3) the case comes before the court initiated by due process of law and upon fulfilment of any condition precedent to the exercise of jurisdiction. ”

(Italics mine)

Any defect in competence is fatal for the proceedings are a nullity however well conducted and decided. The defect is extrinsic to the adjudication. In Westminster Bank Ltd. v. Edwards (1942) AC 529 at 536, (1941) 1 All ER. 470 at 474, Lord Wright observed:

“Now it is clear that a court is not only entitled but bound to put an end to its proceedings if at any stage and by any means it becomes manifest that they are incompetent. It can do so on its own initiative, even though the parties have consented to the irregularity, because, as Willes, J. said in London Corporation v. Cox (1867) LR. 2 HL 237 in the course of giving answers of the judges in the House, mere acquiescence do not give jurisdiction.” In Farguharson v. Morgan (1894) 1 Q.B. 552, 556, Lord Halsbury states the principle thus: ‘It has long been settled that, where an objection to the jurisdiction of an inferior court appears on the face of the proceedings, it is immaterial by what means and by whom the court is informed of such objection. The court must protect the prerogative of the Crown and the due course of the administration of justice by prohibiting the inferior court from proceedings in matters as to which it has no jurisdiction.’ That was a case of prohibition but I think the general principle applies equally to the duty of the court to take the objection when it becomes apparent in the course of proceedings before it in an appeal. This was the view of a Divisional Court composed of Bray and Lush. JJ. in Simpson v. Crowle (1921) 3 KB 243 and I agree with it. These two authorities last cited were county court cases but it is clear that the same principle applies on appeals from the High Court or from any court.” (Italics mine)

The fundamental nature of the issue of jurisdiction exempts it from many disabilities and restrictions which would frustrate other legal points on appeal if not raised in the court below or at the appropriate time. The failure to raise it does not invest the Court with the competence it has not got.

In so far as it is not an issue in the lis inter partes before the court Omonuwa v. Oshodin (supra) and the cases cited therein are inapplicable to the determination of the issue.

In conclusion, the final nature of the order made on the issue of jurisdiction is incontestible and it is in my view, erroneous on the part of the applicant to classify the judgment of the Court of Appeal as interlocutory. The said judgment being a final judgment, the appellants/respondents in this application properly gave their notice of appeal within the 3 months time prescribed for appeals against final decisions in section 31(2)(a) Supreme Court Act 1960. The 2nd and alternative prayer fails.

The 1st arm of the applicants’ motion which seeks an order of dismissal of the appeal for want of prosecution appears to have been effectively met by the respondents’ affidavit that the record of proceedings as compiled and served on them contains an omission on page 69. There is no counter-affidavit challenging this assertion of the respondent and until the record of appeal is correctly compiled to the satisfaction of the parties or without any valid complaint from the parties, time ordered by the rules does not begin to run. This 1st prayer also fails.

Further, the issue of jurisdiction being fundamental to the validity of proceedings the court will not foreclose the question by dismissal for want of prosecution when the issue of the accuracy of the record of proceedings in the Court of Appeal has not been challenged in the application for extension of time to file the appellants’ brief before the court.

In view of the uncontradicted affidavit evidence before the court that the record of appeal (i.e. of proceedings in High Court and Court of Appeal) served on the appellant contains vital omissions, the Deputy Chief Registrar of the Court of Appeal, Lagos, is hereby ordered to amend the records correctly within 30 days of this judgment.

As there can be no application for extension of time properly before the court till the records of appeal have been amended the application for extension of time is hereby struck out as misconceived.

The application of the respondents/applicants for dismissal of the appeal for want of prosecution or alternatively for striking out the appeal as incompetent fails and is hereby dismissed with costs to the appellants fixed at N15.00.

ANIAGOLU, J.S.C.: I have had a preview, in draft, of the Ruling just read by my learned brother, Obaseki, J.S.C., and I agree with it.

The issue, in the main, was whether the decision of the High Court determining jurisdiction, was interlocutory or final, in order to know which of the two periods prescribed in section 31(2) (a) of the Supreme Court Act (“fourteen days in an appeal against an interlocutory decision and three months in an appeal against a final decision”) applied. If interlocutory, then the decision of this Court in W.A. Omonuwa v. Napoleon Oshodin and Another (1985) 2 S.C. Ion which, Mr. Ogunde, of Counsel, entirely relied, would apply, if not, then that decision is inapplicable.

I also agree that the decision of the High Court per J. Oladipo Williams, J. dated 3rd April, 1984, that his Court had no jurisdiction to entertain the case was a final judgment and not interlocutory. The decision of the Court of Appeal on that Ruling allowing the appeal and holding that the High Court had jurisdiction was equally a final judgment. Notice of appeal to this Court against that final judgment would, therefore, be filed within three months of the date of the decision appealed against, and not within fourteen days prescribed for interlocutory decisions.

The application of the Respondent for the dismissal of the appeal or alternatively for striking it out, on the supposition that the notice of appeal filed was filed outside the statutory period allowed, was, therefore, misconceived and must, and is hereby, dismissed with costs to the appellants assessed at N25.00.

NNAMANI, J.S.C.: The respondents/applicants herein brought a motion in this Court for:

(1) An order dismissing this appeal for want of prosecution or alternatively

(2) An order striking out this appeal for non-compliance with Section 31 of the Supreme Court Act 1960.

The issue arose from a decision of the Court of Appeal dated 17th July, 1985 in which that Court allowed an appeal from the judgment of Oladipo Williams J at the Lagos High Court. The Court of Appeal made an order in these terms:-

“This appeal is therefore allowed and the ruling of Williams J. Declining jurisdiction in this matter is set aside. The case is hereby remitted for trial before another Judge”.

The question in issue in this application is really whether that decision of the Court of Appeal was interlocutory or final. This matter has been ably dealt with in the lead ruling of my learned brother, Obaseki, J.S.C. the draft of which I had the privilege of seeing before now. I agree with his reasoning and conclusions therein and any comments I make are merely complementary.

The question of what is an interlocutory or final decision has engaged the attention of courts in England and this country for sometime. This Court has however recently in Omonuwa v. Oshodin (1985) 2 S.C.1 given an authoritative decision on the matter. Following such decisions of the English Court of Appeal and House of Lords as Salaman v. Warner (1891) 1 Q.B. 734, 736; and Bozson v. Altrincham Urban District Council (1903) 1 K.B. 547 and the Federal Supreme Court decision in Afuwape & Ors v. Shodipe and Ors (1957) 2 F.S.C.62, 68, it held 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”.

What was in contention in the High Court and the Court of Appeal was jurisdiction, the High Court declining it and the Court of Appeal holding that the State High Court had jurisdiction. It is settled that a question of jurisdiction goes to the issue of competence of the Court. If the Court does not have jurisdiction, the matter is at an end. The issue of determining the rights of the parties does not yet arise. It is my view, therefore, that in the instant matter the question of determining the rights of the parties had not yet arisen.

Omonuwa’s case was clearly inapplicable. When the Court of Appeal decided on the issue of jurisdiction, it decided finally on the matter before it. If a Court declines jurisdiction, it is the end of the proceedings before it. A decision that a court has jurisdiction is what gives it competence. It determines finally the only relevant matter at that point in the proceedings. It would follow that the decision of the Court of Appeal being a final one, the appellant’s appeal was competent.

Following my learned brother’s order for amendment of the records of appeal, the appellants’ application for extension of time to file appellant’s brief is misconceived. The applicants’ application for the appeal to be dismissed for want of prosecution is premature. I also dismiss the application with N25 costs to the appellants.

---

SC.225/1985(-R)