CL|Interlocutory Order

In the Supreme Court

Holden at Abuja

Fri,23 June 2017

Suit Number

SC. 310/2008




1. ALHAJI MUSA ODURUSAM.  .........     Respondents



The 1st respondent as plaintiff at the Imo State High Court sitting in Oguta, hereinafter referred to as the trial court, commenced the instant suit against the appellant and the 2nd respondent as defendants claiming damages for trespass and injunction. On dismissing the defendants challenge to its jurisdiction, the trial court adjourned the matter to a future date for hearing.

Aggrieved, the appellant, by its notice filed on 22nd October 2002, appealed against the trial courts decision to the Court of Appeal, Port Harcourt Division, hereinafter referred to as the lower court. Prompted by the court, counsel to the parties made submissions on the competence of the appeal in the light of Section 24(2)(a) of the Court of Appeal Act. In a well-considered ruling dated 14th July 2008, the lower court on finding the appeal to be against the trial courts interlocutory decision filed outside the 14 days prescribed by Section 24 (2) (a) of the Court of Appeal Act and without the leave of either of the two courts having been sought and obtained, struck it out for being incompetent. Dissatisfied, the appellant has appealed to this Court against the lower court's decision.

At the hearing of the appeal, parties identified, adopted and relied on their briefs as their respective arguments for and against the appeal. The lone issue formulated by the appellant as having arisen for the determination of the appeal reads:-

Whether the Court of Appeal was right by holding that the appeal from the High Court on issue of jurisdiction is interlocutory for which an appeal must be within 14 days.

Although the respondent has distilled a not dissimilar issue in its brief of argument, the appellants foregoing issue shall be the basis of the determination of the appeal since, in any event, being his issue it circumscribes the aggrieved partys complaint against the lower courts decision.

On the lone issue, learned appellants counsel contends that the lower courts finding at pages 89 - 90 of the record of appeal that since appellants appeal before it has been stated in the Notice of Appeal to be interlocutory, the appeal is necessarily so is wrong. Whether an appeal is interlocutory or not, it is submitted, depends on the decision appealed against and not simply because the appellant has so couched the appeal. The interlocutory or final nature of an appeal, it is further contended, is not determined by the stage of proceedings at which the appeal arose. In the instant matter, learned appellants counsel submits, the lower court is wrong to have concluded that the issue of jurisdiction, which is a specialized question, as decided by the trial court does not finally determine the rights of the parties. The trial court having ruled on the issue cannot be further approached by the appellant. To that extent, it is argued, the rights of the parties in relation to the question have been finally determined. The lower court, it is further contended, is wrong to have held contrary to the decision in Western Steel Works Ltd V. Iron and Steel Workers Union of Nigeria (1986) 3 NWLR (Pt 30) 617, wherein the Supreme Court held any decision on the issue of jurisdiction, notwithstanding whether the trial court has, AFTER the decision, assumed or declined jurisdiction, is a final decision for which leave is not required. In the present case, therefore, appellants appeal filed outside 14 days remains competent and the otherwise decision of the lower court, submits counsel, is perverse.


Concluding, learned counsel relies on Odiba V. Azege (1998) 9 NWLR (Pt 566) 370, to urge that this Court invokes Section 22 of the Supreme Court Act, Cap 515, Laws of the Federation 2004, to determine the appeal the lower court wrongly declined jurisdiction to hear and determine.

Responding, learned counsel submits that this Court per Eso has, after a thorough consideration of the two tests for determining whether or not a decision is interlocutory or final, put the issue to rest in Akinsanya V. U.B.A. Plc (1986) NSCC (Vol. 17) (Pt 11) 968. The position of this Court after examining the earlier decisions including Omonuwa V. Oshodi (1985) NSCC (Vol. 16) (Pt 1) 147 and Western Steel Workers Ltd V. Iron and Steel Workers Union of Nigeria Ltd (1986) NSCC (Vol.17) (Pt 2) 786 which learned appellants counsel gravely misconceives, it is submitted, is the nature of the order test. Had learned appellants counsel carefully perused the Akinsanyas case (supra), it is submitted, it would have dawned on him that Western Steel Workers Ltd V. Iron and Steel Workers Union of Nigeria (supra) does not avail the appellant.

After examining the earlier decisions of the court on the issue, including the Western Steel Works Nigeria Ltd V. The Iron and Steel Workers Union of Nigeria (supra), the court at pages 980-983 concluded the criteria to be applied in determining whether a decision is interlocutory or final. In applying these same criteria, learned counsel submits, the lower court cannot be said to be perverse in its decision in that regard. Citing inter-alia Ebokam V. Ekwewnibe & Sons Trading Co. Ltd (1999) 10 NWLR (Pt 622) 242 at 258, Chike Obi (No 2) V. DPP (1961) ALL NLR 458, Akintola V. Aderemi (1963) 1 ALL NLR 461 and Adegbenro V. Akintola (1963) AC 614, learned respondents counsel submits that the Supreme Court has continued to apply the test it specified in Akinsanya V. U. B. A. Ltd which criteria the lower court applied in arriving at its decision presently appealed against.

My lords, learned respondents counsel is right that this Court had to consider its decisions including the Western Steel Works V. Iron and Steel Workers Union of Nigeria (supra) on the applicable test in adjudging whether or not a courts decision is final or otherwise in the course of determining the appeal in Akinsaya V. U.B.A (supra). Inspite of its decision in Western Steel Works Limited V. Iron and Steel Workers Union of Nigeria (supra), the court inter-alia at pages 980 983 of the report enthused per Eso JSC of blessed memory as follows:-

And so, it has been that the courts in this country have adopted the test that looks at the order made as against the test that looks at the nature of the proceedings. If the court at first instance orders that a matter before it be terminated (struck out) for it has no jurisdiction to determine the issue before it, that is the end of all the issues arising in the cause or matter and there is no longer any issue between the parties in that cause or matter that remains for determination in that court. But it would be interlocutory if its order is that it has jurisdiction for there will be reference of the remaining issues in the case to itself .
(Underlining supplied for emphasis).

There are indeed applications of the principle as propounded (supra) by the Court prior and subsequent to its foregoing decision and inspite of the courts isolated decision in Western Steel Works Limited V. Iron and Steel Workers Union of Nigeria (supra). In Igunbor V. Afolabi (2001) 11 NWLR (Pt. 723) 148 at 165 this Court dwelt on the extant principle per Karibi-Whyte thus:-

A final order or judgment at law is one which brings to an end the rights of the parties in the action. It disposes of the subject matter of the controversy or determines the litigation as to all parties on the merits. On the other hand, an interlocutory order or judgment is one given in the process of the action or cause, which is only intermediate and does not finally determine the rights of the parties in the action. It is an order which determines some preliminary or subordinate issue or settles same step or question but does not adjudicate the ultimate rights of the parties, in the action. However, where the order made finally determines the rights of the parties, as to the particular issue disputed, it is a final order even if arising from an interlocutory application. For instance, an order of committal for contempt arising in the course of proceedings in an action is a final order See Toun Adeyemi v. Theophilus Awobokun (1968) 2 All NLR 318. The instant case as rightly submitted by appellants counsel, is an interlocutory motion by the appellant to be joined as co-administrators with the respondents. The order of the learned trial Judge granting the application determined the rights of the parties in the application. It is an order which did not require something else to be done in answer, and without any further reference to itself or any other court or co-ordinate jurisdiction. The order of the learned trial Judge is therefore a final order. An appeal on the said order is as of right under Section 220(1) of the Constitution 1979.

The principle was further restated by the court in Alor V. Ngene (2007) 17 NWLR (Pt 1062) 163 at 175 177 as follows:-

In plethora of decided case, this Court decided that in this country, if the order, decision or judgment of a court finally and completely determines the rights of the parties in the case, it is final but if it does not it is interlocutory only. And in order to determine whether the decision is final or interlocutory, the decision must relate to the subject matter in dispute between the parties and not the function of the court making the order. Therefore, the determining factor is not whether the court has finally determined the rights of the parties in the claim before the parties........

But where the rights or claims of the parties in any action have not been looked into and determined by the court, they are still pending and the parties can still go back to any court or indeed the same court to examine and decide on those rights.

In his concurring contribution Tobi JSC at page 179 190 of the report stated as follows:

A decision is said to be final when the court that gave the decision has nothing else or nothing more to do with the case; to the extent that the court becomes functus officio in the context of the Judge, it means the duty or function that the Judge was legally empowered and charge to perform, has been wholly accomplished and the Judge has no further authority or legal competence to revisit the matter.

See also Blay V. Solomon (1947) 12 WACA 175, Akintola V. Aderemi (supra), Adegbenro V. Akintola (supra), Ebokam V. Ekwenibe & Sons supra, Omonuwa V. Oshodi (1985) NSCC (Vol. 16) (Pt 1) 147.

On the trial courts decision appealed against the lower court at page 93 of the record of appeal held thus:-

"In the present appeal however, the decision of the court below was that it had jurisdiction over the claim by the 1st Respondent and so assumed jurisdiction thereby dismissing the objection of the appellant. The court then adjourned the matter for the parties to present their respective sides of the case before it. .......... The parties still had their rights in the case to be determined by that court and so the matter was adjourned to enable them pursue those rights.
To that extent too, for being distinguished from the facts leading to the present appeal, case of Western Steel Works (supra) is inapplicable to the present appeal ............................................... In the above premises, since the decision of the court below was an interlocutory one........filed on 22nd of October 2002, a period of three months from the date of delivery. The Notice of Appeal was therefore undoubtedly filed outside the fourteen (14) days prescribed by the provisions of Section 24 (2) (a) of the Court of Appeal Act. ....and the Notice of Appeal is incompetent.

It is the lower courts foregoing impeccable decision that learned appellants counsel submits is perverse. It cannot be.

The lower courts decision which is in tandem with this Courts decisions cannot be said to be perverse. The lower courts finding that the trial courts decision is interlocutory on the very basis such decisions are held by this Court not to be final decisions of the first instance courts remains unassailable.
And this explains why this appeal has failed and is hereby dismissed. Parties are to bear their respective costs.

Chima Centus Nweze, JSC:

My Lord, Muhammad, JSC, obliged me with the draft of the leading judgement just delivered now. I agree with the conclusion that this appeal, being unmeritorious, ought to be dismissed. Appeal is hereby dismissed.

Olabode Rhodes-Vivour, JSC:

I have read in advance the leading judgment of my learned brother, M.D. Muhammad JSC, just delivered. I agree entirely with his reasoning and conclusions. There is no merit in this appeal. It is accordingly dismissed.

Amiru Sanusi JSC:

I had the advantage of reading the lead judgment just delivered by my learned brother Musa Dattijo Muhammad JSC, before now. I am at one with his reasoning and conclusion that this appeal lacks merit. It falls and is accordingly dismissed by me. I have nothing useful to add.

Appeal dismissed.

Paul Adamu Galinje, JSC:

I have had the Opportunity of reading in draft, the judgment just delivered by my learned brother M. D. MUHAMMAD JSC and I agree with the reasoning contained therein and the conclusion arrived thereat. My lord as usual has adequately resolved the sole issue submitted for determination of this appeal. Where a court has determined the rights of the parties in the substantive case or application, the decision is a final and not an interlocutory decision. See Ocean Steamship (Nig) Ltd v Sotiminu (No. 2) (1987) 4 NWLR (Pt. 67) 996; Rabiu v Kano State (1980) 8-11 SC 130.

In the instant case, the rights of the parties in the substantive case were claims for:

1. N10,000,000.00 being special and general damages for trespass, destruction of economic crops and willful desecration, violation, debasement and defilement of the
plaintiffs family ancestral alaezi deity.

2. Perpetual injunction restraining the defendants, their agents, servants, workmen and privies from further trespassing into the plaintiffs family residential premises at Obogwe Unuebeke in the Ohaji/Egbema LGA of Imo State or from dealing with the plaintiffs said family residential premises in any way or manner inconsistent with or contrary to the plaintiffs interest howsoever.

The decision of the trial court would have been final if the claims as enumerated above had been resolved and a decision rendered one way or the other. The matter that was determined by the trial court was rightly held to be interlocutory decision by the Court of Appeal as that question of jurisdiction was just one issue in the course of proceedings which did not effectively terminate or determined the dispute between the parties finally. In Omonuwa v Oshodin (1985) 2 NWLR (Pt. 10) 924 at 938, this court, per Karibi-Whyte stated the position as follows:-

"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 ?nal decision on the issue or issues before it which does not finally determine the rights of the parties, is in my respectful opinion interlocutory." See Afuwage v Shadipe (1057) 2 FSC 12; Ude v Agu (1961) ALL NLR 65; Aqua Ltd v Ondo State Sports Council (1988) 4 NWLR (Pt. 91) 622 at 655

The essence of granting a very short period, i.e 14 days within which to appeal against interlocutory decision is that the main dispute which is still pending should not suffer unnecessary adjournment with attendant delay in its disposal.

With these few words and the more detailed reasoning in the lead judgment of my learned brother, I find no merit in this appeal. Accordingly same shall be and it is hereby dismissed.


MR. DAVID I AJABA with Esla Thomas for the Appellant.

MR. O.J IRERHIME for the 1st Respondent.


MR. ALHASSAN A UMARU with Maryam Ibrahim (Mrs); Bashir A. Abubakar and I. S Moammed for the 3rd Respondent.


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