Agbaje v. AG of Federation (1986)


Agbajo v. A.-G., F.R.N.
28 April 1986

CHIEF PHILIP AGBAJO

V.

    
1.
ATTORNEY-GENERAL OF THE FEDERAL

                                    
REPUBLIC OF    NIGERIA

2.
THE POLICE SERVICE COMMISSION

3.
THE INSPECTOR-GENERAL OF POLICE

COURT OF APPEAL

(BENIN DIVISION)

CA/B/105/84

OMOIGBERAI EBOH, J.C.A. (Presided and Read the Leading Judgment)

ABAT IKWECHEGH, J.C.A.

OLATUNJI AJOSE-ADEOGUN, J.C.A. (Dissenting)

MONDAY, 24TH MARCH, 1986

APPEAL – Appeals from High Court to Court of Appeal – Section 25(2)(a), Court of Appeal Act, 1976 – Whether decision of the High Court final or interlocutory – How determined.

COURT – Judgments and Orders – Decision of the High Court dismissing the plaintiff’s claims after holding that the High Court has no jurisdiction to entertain the claims – Whether such decision is final or interlocutory.

Issue:

Whether having regard to the principles laid down by the Supreme Court in W.A. Omonuwa v. Napoleon Oshodin and Anor. (1986) 2 . (Pt.10) 924, the decision of the learned trial Judge dismissing the plaintiff’s claims for want of jurisdiction is final or interlocutory.

Facts:

The plaintiff/appellant in May 1980 at the High Court of Bendel State Warri Judicial Division, brought an action against the defendant/respondent claiming inter alia –

(i)
A declaration that his employment with the Nigerian Police Force subsists;

(ii)
An order for the payment of the said entitlements, benefits and emoluments.

The plaintiff/appellant commenced this action by originating summons supported by affidavit. After the summons was filed, the respondents filed a notice of preliminary objection to contend that the trial court had no jurisdiction to hear and determine the appellant’s case on the ground that the jurisdiction of the courts had been ousted by the Public Officers (Special

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Provisions) Decree No. 46 of 1970. The trial court upheld the objection and dismissed the appellant’s suit in a ruling delivered on 18th November, 1982.

On 14th February, 1983, the appellant filed his notice of appeal against the ruling. The respondent on appeal contended that the decision of the High Court was interlocutory and it ought to have been appealed against within 14 days.

Held (Unanimously dismissing the objection by majority: Ajose-Adeogun, J. C.A.

Dissenting):

1.
The effect of a court’s order of dismissal is to bar the plaintiff’s claim forever preventing him from suing that defendant in respect of the same matter at any time thereafter. (P. 532, paras. D-E)

2.
Since in the instant case, the appellant’s claims were dismissed, the rights of the appellant and the respondents had thereby been settled and as such the order of dismissal by the learned trial Judge is a final order. [Omonuwa v. Oshodin (1985) 2 . (Pt.10) 924 considered]. (Pp.532, paras. C, F; 533,para. D)

3.
It is the law which is in force at the time the cause of action arose that must be applied and not the law in force at the time the suit was filed. [Uwaifo v. Attorney-General Bendel State (1982) 7 SC 124 applied]. (P. 535, paras. C-D)

4.
Since the appeal is against a final order, the appeal is within time since it was filed within 3 months. (Pp. 533, paras. F-G; 536, para. D)

5.
Per EBOH, J.C.A. at pages 532-533, paras. H-B:

“Further to the above and applying strictly the two tests formulated by the Supreme Court in Omonuwa’s case (supra), it is my own view that Test No. 1, which determines whether a judgment or order is interlocutory, does not apply because:

(1)
the nature of the application of the defendants in the court below is certainly aimed at Finally determining or rather finally stopping the determination of the claims between the parties;

(2)
the aim of the application was properly achieved and realised by the defendants in the court’s ruling which contained an order of dismissal of the said case or claims – the legal effects of which I had earlier stated;

(3)
the nature of the application “did not only deal with an issue” because what the application aimed at achieving was not, stricto sensu, dealing with an issue in or forming any part of the claims between the parties to the suit but to get the court to decline jurisdiction and by the same token get the plaintiff lose his right of access to court.

6.
Per AJOSE-ADEOGUN, J.C.A. (Dissenting) at pages 539, paras. F-G:

“It was not being contended in the application before the lower court that appellant was not entitled to the rights being claimed by him. Indeed, the aforesaid Decree of 1970 envisages and protects the rights of affected officers in appropriate cases (see sections 2(1) and 3(2) thereof). There is

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also a provision for a right of appeal by an aggrieved officer to the Head of State (section 5) but not to a court of law (section 6). Thus, it seems quite clear to me that the application to dismiss appellant’s claim on the ground of the court’s incompetency or lack of jurisdiction to entertain it, made in limine by the respondents, cannot be regarded, by any stretch of logic or good reasoning, as a step towards finally resolving or determining the rights in the claim before the court.”

7.
Per AJOSE-ADEOGUN, J.C.A. (Dissenting) at page 540, paras. B-C:

“If the lower court’s ruling on the application before it did anything at all, the said ruling simply determined the issue of the court’s competence or jurisdiction but certainly not the rights of the parties in the claim before it. This brings me to the last consideration, namely, the nature of the order made by the court below. I believe enough has already been said above to justify the view that the said order certainly did not dispose of the rights of the parties. What it did, in effect, was to direct that the appellant’s right – which were actually acknowledged, should be pursued elsewhere but not in a court of law.”

Nigerian Cases Referred to in the Judgment:

    Afuwape v. Shodipe (1957) SCNLR 265

    Alaye of Efon v. Fasan (1958) SCNLR 171

    Omonuwa v. Oshodin (1985) 2 SC 1, (1985) 2 . (Pt. 10) 924

    Uwaifo v. A.-G., Bendel State (1982) 7 SC 124

Foreign Cases Referred to in the Judgment:

Bozson v. Altincham U.D.C. (1903) 1 KB 547

Issacs & Sons v. Saibstein (1916) KB 139

Salter Rex & Co. v. Ghosh (1977) 2 All ER 865

Technistudy Ltd. v. Kelland (1976) 3 All ER 632

Nigerian Statutes Referred to in the Judgment:

Constitution of the Federation, 1963

Constitution of the Federation, 1979, Ss. 6(6), 220(l)(b)

Court of Appeal Act, 1976, S. 25(2)(9)

Federal Military Government (Supremacy and Enforcement of Powers) Decree, 1970 Interpretation Act, 1964

Public Officers (Special Provisions) Decree No. 46 of 1970, Ss. 1(c)(i), 2(1), 3(2), 5. 6(1)

Appeal:

This was an appeal against the decision of the High Court of Bendel State dismissing the suit for want of jurisdiction. The Court of Appeal ruled that the decision of the trial Judge was a final order and an appeal against the judgment which was brought 88 days after the decision of the learned trial

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Judge was in order.

History of the Case:

Court of Appeal:

Division of the Court of Appeal to which the appeal was brought: Court of Appeal, Benin

Names of Justices who sat on the Appeal: Omoigberai Eboh, J.C.A. (Read the Leading Judgment); Abai Ikwechegh, J.C.A.; Olatunji Ajose-Adeogun, J.C.A. (Dissented)

Appeal No.: CA/B/105/84

Date of Judgment: Monday, 24th March, 1986 Names of Counsel: Roli Craig [Mrs] – for the Appellant F. N. Molokwu [Mrs], (RS.C.1) – for the Respondents.

High Court:

Name of the High Court: Warri High Court, Bendel State

Name of Judge: Akpata, J.

Date of Decision: Thursday, 18th November, 1982

Counsel:

Roli Craig [Mrs] – for the Appellant

F. N. Molokwu [Mrs], (RS.C.l) – for the Respondents.

EBOH, J.C.A. (Delivering the Leading Judgment): In this case, the plaintiff in May, 1980 and at the High Court, Warri in Bendel State of Nigeria sued the defendants claiming about six (6) different declarations and an order for payment to him of his entitlements, benefits and emoluments. The defendants ultimately had to be served with the process by means of substituted service and thereafter, through their counsel, formally raised a preliminary objection that the High Court had no jurisdiction to hear and determine the case. The facts of this case are clearly set out in the High Court ruling.

The learned trial Judge wrote a well-considered ruling in the matter of the objection raised, filed and argued before him by counsel to the defendants to the effect that High Court, Warri of Bendel State has no jurisdiction under section 6(1) of Decree No. 46 of 1970 to hear and determine this matter. The ruling which was delivered on 18/11/82 ended with the dismissal of the plaintiff’s case and the notice of appeal against the order of dismissal was filed on 14/2/83 – this is about 88 days after that ruling.

Counsel to the defendants has again applied to this court that the ruling being an “interlocutory” as distinct from a “final” decision, an appeal against it ought to be brought within 14 days from the date it was delivered and that this purported appeal is incompetent as being filed well-outside the 14-day period prescribed therefor by virtue of section 25(2)(a) of Court of Appeal Act, 1976 which provides thus:

Section 25:

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

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In an appeal in a civil cause or matter, fourteen days where the appeal is against an interlocutory decision and three months where the appeal is against a final decision.”

From the above the only question for determination in this application is whether the said ruling should be regarded as a final decision or as an interlocutory decision in order to ascertain which of the two periods delimited by S. 25(2)(a) within which notice of an appeal shall be given is applicable. The plaintiff’s counsel maintains that the said ruling is a final decision and that consequently the notice of appeal filed against it is within the statutory period of 90 days prescribed for final decisions.

I have carefully read a number of decided cases both local and overseas which are relevant to this case and must say that I have found the Supreme Court judgment per Karibi-White, JSC, in Omonuwa v. Oshodin &Anor. (1985) 2 . (Pt. 10) 924 most instructive and helpful.

In the case in hand, the plaintiff sued the defendants claiming certain right’s etc. against them obviously in pursuance of his right of access to the courts of the land as guaranteed by the 1963 Constitution of the Federation and the Constitution of the Federal Republic of Nigeria, 1979. The High Court, Warri which was seised of the matter, on a formal objection by the defendants, upheld the submission that it had no jurisdiction to hear the case because of an ouster clause or provision contained in section 6(1) of Decree No. 46 of 1970 which governs the case. What is equally important is that the learned trial Judge consequently dismissed the plaintiff’s case. The effect of the court’s order of dismissal of plaintiff’s case is to bar his claims forever or in other words, the order operates to preclude the plaintiff from ever suing the defendants in the High Court in respect of the same matter at any time thereafter.

By the order of dismissal contained in the said ruling, the plaintiff’s right of access to the court in the matter as objected to, opposed, and denied by the defendants is forever extinguished and plaintiff’s fate is thereby sealed to his detriment for good. At that stage, the plaintiff’s case against the defendants was no longer pending in the High Court, Warri and thus far, the rights of the plaintiff and the defendants had thereby been settled by that court in respect of the said case. In consequence, the only thing which is extant and continues to be binding on both parties, as it were, was that order of dismissal, which was absolute and unconditional and the only other course open to the plaintiff was to exercise his right of appeal as allowed him by section 25(2)(a) of Court of Appeal Act, 1976 and section 220(l)(b) of 1979 Constitution.

To my mind, it is against the background of the above that I have considered the matter between both parties which led me to the view that the said ruling is a final decision and not an interlocutory decision. I therefore accordingly beg to differ from the view expressed by the learned trial Judge that the rights of both parties had not been settled.

Further to the above and applying strictly the two tests formulated by the Supreme Court in Omonuwa’s case (supra), it is my own view that Test No. I, which determines whether a judgment or order is interlocutory, does not apply because:

(1) the nature of the application of the defendants in the court below

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certainly aimed at finally determining or rather finally stopping the determination of the claims between the parties;

(2)
the aim of the application was properly achieved and realised by the defendants in the court’s ruling which contained an order of dismissal of the said case or claims – the legal effects of which I had earlier stated;

(3)
the nature of the application “did not only deal with an issue” because what the application aimed at achieving was not, stricto senso, dealing with an issue in or forming any part of the claims between the parties to the suit but to get the court to decline jurisdiction and by the same token get the plaintiff lose his right of access to court.

In my own humble view, the Test No. 2 is the one more applicable to this case because the said application had the effect (by reason of the order made by the court) of finally determine the claim before the court to wit; the plaintiff’s (appellant’s) right of access to the court in the suit he had filed against the defendants. Since it is upon the said right of access to the court that the plaintiff and the defendants, through the said application, had properly joined issues, then the High Court’s order or judgment of dismissal of plaintiff’s case should properly be regarded as a final order or judgment. Hence I do hereby regard the High Court order made in the plaintiff’s case on 18/11/ 82 as a final order.

I should think that I am reinforced in the conclusion I have reached by the fact that the case in hand should be regarded as an exceptional one as it cannot quite squarely be accommodated by the Test No. 2 as formulated in Omonuwa’s case as this postulates that the High Court concerned has power or jurisdiction to hear and determine the case or the claims as between both parties to the suit. In the case in hand the High Court itself said “it lacked jurisdiction to entertain the case.” So the question of “whether or not the court has finally determined the rights of the parties in the claim before the court” may not arise, I submit with utmost respect.

Surely it cannot be denied or gainsaid that the plaintiff had a right of appeal against the order of dismissal of his case and claims by the High Court and since in my view and for the reasons given above, it is a final order and not an interlocutory order, then the plaintiff had a right to file the notice of appeal against the said order of dismissal as made on 18/11/82 any time within a period of 90 days therefrom. So his notice of appeal filed on 14/2/83 (vide page 175 of the record of proceeding) was filed within the time specified by law and was in order and consequently the appeal against the order was competent.

The application by the defendants that the appeal is incompetent was misconceived and wrong and is hereby refused with N50.00 costs to the plaintiff (appellant). The appeal shall therefore proceed.

IKWECHEGH, J.C.A.: I had the privilege of reading the draft of the judgment of my learned brother, Omo-Eboh, JCA and while I agree with him in the end result and the conclusion that he had reached, I wish, with respect, to make these comments of my own.

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The appellant’s affidavit sworn-to on the 21st day of May, 1980 showed expressly that whereas the appellant had joined the Nigeria Police Force in 1937 he was dismissed by the 2nd defendant, the Police Service Commission, by a letter dated in March 1971 which purported to have dismissed the appellant from the Nigeria Police Force with effect from 30th May, 1967. Paragraph 6 of the said affidavit reads:

“(6)
That I am informed by Chief Aberewa Uzuazebe, Barrister-at-Law of 138A, Warri/Sapele Road, Warri, and I verily believe him, that my appointment was determined RETROACTIVE (sic) and that the 2nd defendant acted ultra vires the Public Officers (Special Provisions) Decree No. 46 of 1970.”

The appellant went on to show in that affidavit how he had made a written petition to the then Head of State on 21/7/72 against the alleged dismissal, and he showed that he had had a reply from the Cabinet Office which directed him to expect further correspondence when a decision was reached in this matter. That letter of promise was shown to have been dated 31st August, 1972. And the appellant has since received no information on the matter. But the appellant did nothing again but waited until 21st May, 1980 when he filed the present action now on appeal.

It is significant that the appellant knew quite early in this affair that he was said to have been dismissed pursuant to the Public Officers (Special Provisions) Decree, No. 46 of 1970. The letter of dismissal was dated 9th March, 1971 and reads:

“Sir,

The Commission has carefully examined the various submissions made to it regarding your active involvement in the recent rebellion in the country and it does not find any extenuating circumstances to justify your action. It has therefore directed that you be and you are hereby dismissed summarily from the Force under section l(c)(i) of the Public Officers (Special Provisions) Decree 1970 with effect from 30th May, 1967,”

Appellant has claimed that the 2nd defendant had acted ultra vires the aforesaid Decree No. 46 of 1970. But he did not allege in what manner.

The case came up before Akpata, J., as he then was, and a motion was filed against the action of the appellant objecting to its commencement by way of originating summons. Following this was a notice of preliminary objection that

“(a)
This Honourable Court has no jurisdiction to hear and determine this matter; and

(b)
any decision of this Honourable Court granting the relief sought by the plaintiff shall be null and void and of no effect whatsoever in law.”

The grounds of objection were as follows:

  1. That upon reading through the summons filed the remedy sought

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               by the plaintiff would not avail him by virtue of the provisions of section 5 of the Public Officers (Special Provisions) Decree No. 46 of 1970.

     2.      That this Honourable Court has no jurisdiction to hear and/or determine the matter by virtue of the provisions of section 6 of the Public Officers (Special Provisions) Decree No. 46 of 1970.

    3.    That the Honourable Court has no jurisdiction to hear and determine the matter by virtue of provisions of the Federal Military Government (Supremacy and Enforcement of Powers) Decree 1970, The Interpretation Act (No. 1), 1964. The Constitution of the Federal Republic of Nigeria, 1979.”

This last reference is awkward because counsel has in this appeal come round to argue on behalf of the respondents that the Constitution of 1979 does not apply to this case as the matters complained of had taken place much before the 1979 Constitution came into force and that it is the Constitution of Nigeria 1963 that is applicable to this case. Counsel has relied on Uwaifo v. Attorney-General, Bendel State (1982) 7 SC 124 and it seems clear that this is the right view. At the time of the purported dismissal of the appellant the 1979 Constitution was not in force and its provisions may not validly be pressed for appellant’s benefit. It is, perhaps, this reliance on the 1979 Constitution that has emboldened the appellant into bringing the action in the first place; since he could within the provisions of this said Constitution claim that under section 6(6) the courts have unlimited jurisdiction to hear and determine all matters. But in 1970 the Decree No. 46 was absolute and its provisions were current law. Section 6(1) of this Decree No. 46 of 1970 provides:

“No civil proceedings shall lie or be instituted in any court for or on account of or in respect of any act, matter or thing done or purported to be done by any person under this Decree and if any such proceeding has been or is instituted before or after the commencement of this Decree the proceedings shall abate, be discharged and made void.”

This provision is what was raised in the court below in objection to that court entertaining the claims of the appellant, and after having heard arguments, the trial court in a reserved ruling held as follows:

“In the light of the above, the plaintiff’s case is accordingly dismissed. This court lacks jurisdiction to entertain it.”

This ruling was delivered on the 18th day of November, 1982. The appellant was dissatisfied and filed notice and grounds of appeal on 14/2/83 which was said to be 88 days after the said ruling. The appeal is before this court and is being heard, and briefs have been duly filed and exchanged. But at the hearing on 11th February, 1986, relying on a notice of preliminary objection on behalf of respondents, Mrs. Molokwu, Principal State Counsel, Federal Ministry of Justice, Lagos, took the points that the ruling appealed against was an interlocutory order, and so appeal from it lay within 14 days, and as the appellant filed his notice 88 days after the said ruling he was barred under the law, and so this appeal is incompetent and should be dismissed. Learned Counsel relied on Omonuwa v. Oshodin (1985) 1 . (Pt. 10) 924. Mrs. Roli Craig on her part submitted that the decision given in

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the court below was a final one and that the right of appeal is exercisable within 3 months. Counsel for respondent also relied on the Supreme Court decision in Omonuwa v. Oshodin (supra). That was a very authoritative decision as all the learned justices of that august court are agreed on the matter. The test formulated in a search of this kind 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 in litigation.”

This test may now be applied to the question before the court below, and surely, that court was invited to hold that the action brought by the appellant as plaintiff could not be taken cognisance of on account of the section 6(1) of the Decree No. 46 of 1970, and so that court should dismiss the suit as it lacked the jurisdiction to entertain the matter. In response to that application the trial court made an order which dismissed the suit. The legal consequence of that order is that for the present the appellant cannot bring another suit on the same issues between the same parties. That situation could not in my view, be said to a temporary halt. It was not an interlocutory order that produced that result which would be so devastating in its effects to the hopes of the appellant. In my view the decision in that ruling is final. And the law gives the appellant right to bring his challenge to it in any appeal within 3 months of that decision. In that case I hold the opinion that this appeal is legally before this court, and should be heard on the merits.

I award N50.00 costs to the appellant.

AJOSE-ADEOGUN, J.C.A. (Dissenting): As I am, regrettably, unable to agree with the conclusion in the lead-judgment just read by my learned brother, Omoigberai-Eboh, JCA, I now set out my views on the issue raised in this appeal. By a letter dated 9th March, 1971, the appellant herein (then a Chief Superintendent of Police) was summarily dismissed from the Police Force by the Police Service Commission (2nd respondent). The dismissal was made to take effect from 30th May, 1967. Apparently aggrieved, appellant instituted an action in the High Court at Warri, Bendel State, in May 1980, against the three respondents, claiming as follows:

(i)
A declaration that his employment with the Nigeria Police Force subsists;

(ii)
A declaration that the dismissal of the plaintiff from the Nigeria Police Force was and is invalid and void;

(iii)
A declaration that he is entitled to be paid his entitlements, benefits and emoluments as police officer of a rank of Chief Superintendent of Police as from May 1967 to date of judgment;

(iv)
An order for the payment of the said entitlements, benefits and emoluments;

(v)
A declaration that he is not an Ibo man but an Itsekiri;

(vi)
A declaration that he had no fair hearing before the Police Service Commission; and

(vii)
A declaration that the operation order dated the 26/8/67 was a

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subject of a charge of rebellion levelled against the plaintiff, was falsely and maliciously credited to him.

As the said action was commenced by an originating summons supported by an affidavit with many documents attached, the respondents applied by motion on notice seeking the following orders:

1.
That the action shall be commenced by a writ of summons;

2.
That the Attorney-General of the Federation and the Inspector- General of Police who have been improperly made parties in this action should cease to be parties;

3.
For such further and other order or orders

While the above motion was still pending, the respondents filed a notice of preliminary objection to contend that the trial court had no jurisdiction to hear and determine appellant’s case and that any decision thereon would be null and void and of no effect whatsoever in law. The grounds of the said objection were based on the relevant provisions in the Public Officers (Special Provisions) Decree No. 46 of 1970 (sections 5 & 6), the Federal Military Government (Supremacy and Enforcement of Powers) Decree No. 28 of 1970, the Interpretation Act, (No. 1) of 1964 and the Constitution of the Federal Republic of Nigeria, 1979.

The two matters referred to above (the motion and the notice of preliminary objection) were taken together before the learned trial Judge who, after hearing arguments from both sides, ruled that his court lacked jurisdiction to entertain appellant’s case and therefore dismissed it. Being dissatisfied with that ruling, appellant lodged present appeal in this court.

Now in this court, the respondents filed another notice of a fresh preliminary objection. Their contention this time was that the aforesaid ruling being an interlocutory decision on point of law, the appellant ought to have appealed against it within 14 days (See section 25(2)(a) of the Court of Appeal Act, 1976 and section 220(l)(b) of the 1979 Constitution). But as the appellant filed his notice of appeal some 88 days after the ruling in question and not having obtained leave to appeal out of time, the present purported appeal should be struck out.

Arising from the above, the only question for determination here is whether the ruling of the learned trial Judge given at the High Court in Warri on 18th November, 1982 should be regarded either as final or just interlocutory. The appellant contended that the said decision was a final and not an interlocutory one. Both parties relied on the relevant sections of the Laws already referred to above and on the Supreme Court decision in the case of W.A. Omonuwa v. Napoleon Oshodin & Anon (1985) 2 . (Pt. 10) 924.

Both parties seemed to agree that appellant could appeal as of right against the decision in question, whether it be final or interlocutory, since the proposed grounds of appeal involved questions of law alone: See section 220(l)(b) of the Constitution of the Federal Republic of Nigeria, 1979. On the issue of the period of time allowed for appealing, there is no doubt that in a civil cause or matter, an appeal should be filed within fourteen days against an interlocutory decision and within three months against a final decision; See section 25(2)(a) of the Court of Appeal Act, 1976. The usual controversy on the issue, as in the present matter, is whether a decision is final or interlocutory.

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          As pointed out by the Supreme Court in the case of Omonuwa v. Napoleon Oshodin & Anor. (supra), the above question “has been one of perenial difficulty for the courts” because of “the lack of precision or certainty” in the various approaches adopted for resolving it. Although reference was also made in the same case to the observation of Lord Denning M.R., that “it is impossible to lay down any principles about what is final or what is interlocutory (Ref. Salter Rex & Co. v. Ghosh (1971) 2 All ER 865 at p.866, Technistudy Ltd. v. Kelland (1976) 3 All ER 632 at 634)”, our own Supreme Court, nevertheless, provided “a workable test for the determination of the issue when it arises, instead of relying on example.” All the other six eminent Justices in the said case of Omonuwa concurred in the test so laid down in the lead judgment of Karibi-Whyte, JSC. Consequently, it is that very test, which will be set out presently, that I shall try to adopt in the present application. This is more so as both parties relied solely on the said case.

          Having reviewed a number of both Nigerian and English authoritative decisions on the above subject, His Lordship found that two tests emerged from them. First, there are said to be “the cases which adopt the nature of the application to the court as the determining factor whether the judgment or order is interlocutory.” Secondly, there are also said to be “others which consider the nature of the order made.” It is the latter test, “laid down by Lord Alverstone in Bozson v. Altincham U.D.C. (1903) 1 K.B. 547 (that) has been consistently applied by our own court.” That test, with which the Earl of Halsbury L.C. agreed, was stated thus (at pp. 549-550 of the report):

“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.”

The final outcome of all the above and the decisive view adopted by the Supreme Court in the aforesaid case of Omonuwa v. Oshodin & Anor. (supra) can be best set out in the words of Karibi-White, JSC delivering the lead judgment (at pp. 33/44),

“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. (1916) 2 KB 139 at p. 146. Alaye of Efon v. Fasan (1958) SCNLR 171, (1958) 3 FSC 68. However, where an application has the effect by the order therefor of finally determining the claim before the court, the order may properly be regarded as final – See Afuwape & Ors. v. Shadipe (1957) SCNLR 265, (1957) 2 FSC 62 at p. 68.

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The determining factor whether an order or judgment is interlocutory or final is not whether the 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.”

As the above-quoted pronouncement is so clear and indeed self-elucidating, any further comment thereon by me is not considered desirable or even possible. What therefore now remains is to consider the nature of the application as well as the nature of the order made in the matter presently under appeal. It is the outcome of such consideration that will determine whether only an issue before the lower court has been finally determined or whether the order in question “has finally determined the rights of the parties in the claim before the court.” (Italics mine) From the stand taken by each side in the arguments before this court, it may be assumed that out of the two propositions stated above, the respondents/applicants herein choose the former while the appellant/respondent contended in support of the latter. The first would mean that the decision of the lower court was interlocutory while the latter would demonstrate that it was final.

Let me now quickly but briefly examine the situation with which this appeal is concerned in the light of all the above considerations. To begin with, it is to be observed that the claim of the appellant, as set out earlier herein, is one based on a contractual master and servant relationship. It mainly concerns appellant’s employment with the Nigeria Police Force, his alleged invalid dismissal therefrom, his entitlements, benefits and emoluments as a serving Police Officer from 1967 to date of judgment and the payment over to him of such entitlements, benefits and emoluments. In effect, those are the rights in the claim before the court which the respondents are, up till now, resisting.

Next to be considered is the nature of the respondents’ application before the lower court. As already indicated, it was, at a later stage, principally that the appellant could not come to the court for the reliefs being claimed by him. According to them, “the court has no jurisdiction to hear and determine (the) matter” and that any decision of the court on the appellant’s claim would be null and void and of no effect in law. The basis of the said application is to be found in sections 5 and 6- particularly 6(1), of the Public Officers (Special Provisions) Decree, 1970.

It was not being contended in the application before the lower court that the appellant was not entitled to the rights being claimed by him. Indeed, the aforesaid Decree of 1970 envisages and protects the rights of affected officers in appropriate cases (see sections 2(1) and 3(2) thereof). There is also a provision for a right of appeal by an aggrieved officer to the Head of State (section 5) but not to a court of law (section 6). Thus, it seems quite clear to me that the application to dismiss appellant’s claim on the ground of the court’s incompetency or lack of jurisdiction to entertain it, made in limine by the respondents, cannot be regarded, by any stretch of logic or good reasoning, as a step towards finally resolving or determining the rights in the claim before the court.

Obviously, appellant did not claim to have his constitutional right of access to court determined by the lower court. He already assumed such a

540
.
28 April 1986
(Ajose-Adeogun, J.C.A. )

A

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H

right when he took out his writ. His claim therein was to determine his rights in a contractual master and servant relationship with the respondents. In my view, it would have been a different situation if appellant’s claim had been for a declaration that, in spite of the provision in section 6(1) of the Public Officers (Special Provisions) Decree, 1970, he has a constitutional right to institute a court action against his employers (the respondents) in the matter of his invalid dismissal from the Nigeria Police Force. A court’s decision on that kind of claim, should it arise from an interlocutory application to dismiss the case summarily, would have been a final one – being a decision on “the rights of the parties in the claim before the court”.

If the lower court’s ruling on the application before it did anything at all, the said ruling simply determined the issue of the court’s competence or jurisdiction but certainly not the rights of the parties in the claim before it. This brings me to the last consideration, namely, the nature of the order made by the court below. I believe enough has already been said above to justify the view that the said order certainly did not dispose of the rights of the parties. What it did, in effect, was to direct that the appellant’s rights – which were actually acknowledged, should be pursued elsewhere but not in a court of law.

Even the court below, in dismissing appellant’s case for lack of jurisdiction by the court to entertain it, was at pains to admit that his rights had not been finally settled when the learned trial Judge observed as follows:-

“In my view this (i.e. the application) may be a blessing in disguise for the plaintiff. This is so because he is at liberty to remind the President of the pending appeal (i.e. under section 5 of the 1970 Decree). The dust raised by the civil strife has settled down. The President will no doubt consider his case objectively and act fairly …. It is not my intention in this ruling to pre-judge the issue or preempt the President. It appears to me however, going by the documents exhibited by the parties to this case, that the plaintiff has a prima facie case that deserves looking into.” (Italics mine)

Arising from all the above, I have no hesitation whatsoever in coming to the conclusion that on the principles outlined in the case of W. A. Omonuwa v. Napoleon Oshodin &Anor. (supra) and on the application of both tests postulated therein, namely, the nature of the application and the nature of the order made, the ruling of the lower court appealed against is an interlocutory and not a final decision. Consequently, the appellant had fourteen (14) days and not three (3) months to bring the present appeal. As, however, the appellant filed his notice of appeal some 88 days after the decision in question and without an order extending the time prescribed, it contravened the requirements in section 25(2)(a) of the Court of Appeal Act, 1976 and section 220(l)(b) of the 1979 Constitution. Accordingly, the preliminary objection of the respondents is upheld. The appeal is therefore incompetent and is hereby struck out.

The respondents are entitled to the costs of this application which I assess at N30.00.

Objection dismissed by majority.

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