Effect of failure to obtain the requisite leave of court and enlargement ot time to file an appeal where same is required

DANGOTE INDUSTRIES LTD & ANOR v. OCEAN BEAN GOLF AND LEISURE RESORTS LTD & ORS

CITATION: (2021) LPELR-53464(CA)

In the Court of Appeal
In the Lagos Judicial Division
Holden at Lagos

ON THURSDAY, 18TH MARCH, 2021
Suit No: CA/L/1191/2018

Before Their Lordships:

OBANDE FESTUS OGBUINYA JUSTICE, COURT OF APPEAL
OBIETONBARA O. DANIEL-KALIO JUSTICE, COURT OF APPEAL
ONYEKACHI AJA OTISI JUSTICE, COURT OF APPEAL

Between

1. DANGOTE INDUSTRIES LIMITED
2. DANGOTE OIL REFINING COMPANY LIMITED – Appellant(s)

1. OCEAN BEAN GOLF AND LEISURE RESORTS LIMITED
2. LAGOS STATE ENVIRONMENTAL PROTECTION AGENCY
3. ATTORNEY-GENERAL OF LAGOS STATE – Respondent(s)

LEADING JUDGMENT DELIVERED BY OBANDE FESTUS OGBUINYA, J.C.A.

FACTS
On or about 25th August, 2006, the 1st Appellant (DANGOTE INDUSTRIES LIMITED) acquired a large tract of land along Epe Coastal Road, Ibeju-Lekki, Lagos whereon it built a world-class Lekki Beach Golf Resorts. The 1ST Respondent (OCEAN BEAN GOLF AND LEISURE RESORTS LIMITED) alleged that its plan to commence operation of the Golf was jeopardized as a result of the Appellants’ construction of a permanent jetty/RORO terminal close to it. As a result of the construction done by the Appellants, there was massive beach erosions and degradation of the Golf premises which caused the 1st Respondent colossal losses. The Appellants, also, forcefully entered into the Golf premises. Attempts to have the dispute between them amicably settled failed. Sequel to that, the 1st Respondent beseeched High Court of Lagos via a writ of summons against the Appellants, the 2nd and 3rd Respondents seeking declaratory reliefs, order for special and general damages and injunctive relief. The 1st Respondent also filed an application for an interlocutory injunction against the Appellants restraining them from their unlawful acts.

In reaction, the Appellants filed a notice of preliminary objection challenging the jurisdiction of the High Court to entertain the matter. When the matter came up for hearing, His Lordship, L. A. F. Oluyemi, J., adjudged the Appellants’ preliminary objection and the first Respondent’s application for interlocutory injunction to another day to be heard by the vacation Judge. When the suit came up again, before the High Court, presided over by Hon. Justice O. O. Femi-Adeniyi, His Lordship directed parties to maintain status quo ante bellum pending the determination of the Appellants’ notice of preliminary objection and the first Respondent’s application for interlocutory injunction.

The Appellants were dissatisfied by the decision hence the appeal. The 1st Respondent filed a notice of preliminary objection contending that the appeal be struck out as the Court lacks jurisdiction to entertain the appeal on the grounds that no enlargement of time nor leave of Court was sought before filing the appeal against the interlocutory decision of the lower Court despite filing same outside the statutory period and that the Appellants failed to state the grounds of appeal from which the sole issue for determination in their brief of argument was distilled from.

ISSUES FOR DETERMINATION
The Court of Appeal considered the preliminary objection on the sole issue as follows:
Considering the fact that no leave and enlargement of time to file the instant appeal was sought by Appellants, whether the appeal is competent?

RESPONDENT’S SUBMISSIONS ON THE PRELIMINARY OBJECTION
Learned counsel for the 1st Respondent submitted that the appeal against interlocutory decision of the lower Court was filed outside the 14 days without an extension of time which made the appeal incompetent. He relied on Section 24 of the Court of Appeal Act, Cap C36, Laws of the Federation of Nigeria, LFN 2004; ONYEMA V. EZEIRUKA (2018) LPELR – 45018 (CA).
He posited that the Appellants failed to seek leave of Court before filing the appeal against an interlocutory decision of the lower Court which rendered it incompetent. He cited Section 14(1) of the Court of Appeal Act, EKEMEZIE V. IFEANACHO (2019) LPELR – 46518 (SC). He asserted that the decision of the lower Court was an exercise of discretion involving mixed law and facts which required leave of Court before filing the appeal and the same rendered it incompetent by the failure to obtain leave. He referred to SARAKI V. KOTOYE (1990) LPELR – 15503 (SC).

APPELLANT’S SUBMISSIONS IN RESPONSE TO THE PRELIMINARY OBJECTION
Appellants’ counsel contended that the lower Court’s order/decision, which was void, involved jurisdiction and time would not run out to terminate the appeal. He relied on KPEMA V. STATE (1986) 1 NSCC 212; (1986) LPELR-1713(SC). He reasoned that the Appellants needed not to seek leave as the appeal was based on issue of jurisdiction. He cited the cases of BRITISH AIRWAYS V. AMADI (2012) 2 NWLR (Pt. 1283) 21; (2011) LPELR-3890(CA), UNILORIN V. ADENIRAN (2007) 6 NWLR (Pt. 1031) 498; (2006) LPELR-11801(CA).

He maintained that the lower Court’s order involved application of Chapter IV of the Constitution, as amended, and grant or refusal of injunction which border on appeal as of right. He cited Section 241 (1) (d), (f) and (h) of the Constitution, as amended.

RESOLUTION OF ISSUES
In resolving the preliminary objection, the Court went on to determine the nature of the lower Court’s decision being appealed against, id est, whether it is interlocutory or final decision. The Court explained that there are two tests propounded in the English Courts which had competed for the attention of the Nigerian Courts. That the first one is the nature of the proceedings test invented by Fry. L.J. in the case of SALAMAN V. WARNER (1891) 1 QB 734 at 736. The other is the nature of the order test evolved by Lord Alverstone, C.J. in the case of BOZSON V. ALTRINCHAM URBAN DISTRICT COUNCIL (1963) 1 KB 547 at 548 – 549, wherein, the law Lord stated thus:

“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 Court went further to explain that the Nigerian Courts have accepted and followed the later test, id est, that where an order made by a Court finally determines the rights of the parties to an action, then it is final and where it does not, it is interlocutory. The case of C.G.G. (Nig.) Ltd. v. ODURUSAM (2017) 17 NWLR (Pt. 1595) 476; (2017) LPELR-42575(SC) was referred to.

The Court stated the order given by the lower Court which is as follows:
“Accordingly, parties are directed to maintain the status quo ante bellum pending the determination of the notice of preliminary objection filed by the 1st and 2nd Defendants and the motion for interlocutory injunction filed by the claimant on the subject matter of this suit.”

That from the phraseology and tenor of the order, it is a quintessence of an interlocutory decision. The Court maintained that the order itself, amply and clearly disclosed that the feuding parties will return to the lower Court to have their applications determined one way or the other. That the lower Court had not become functus officio on the footing of the order to maintain status quo ante bellum by the contending parties.

The Court stated that the order was made by the lower Court on 23rd July, 2018. That the birthday of the order has to be excluded from the fourteen (14) days ordained in Section 24 (2) (a) of the Court of Appeal Act. The Court stated that the Appellants’ right of appeal ripened on the 24th of July, 2018 but they approached the Court on the 10th of August 2018.
The Court explained that it is a common knowledge that Nigeria is a user of the Gregorian calendar — a calendar of general application. That by the Gregorian calendar computation, from 24th July, 2018 to 10th August, 2018 is a period of eighteen (18) days indisputably, the period of eighteen (18) days is far in excess of the fourteen (14) days’ time-frame decreed by the sacred provision of Section 24 (a) of the Court of Appeal Act for appealing against an interlocutory decision of the lower Court. The Court held that the Appellants’ notice of appeal was filed in flagrant defilement of then limitation period in the provision of Section 24 (2) (a) of the Court of Appeal Act. That the Appellants’ right of appeal which matured on 24th July, 2018, had become stale/soured before it was ignited on 10th August, 2018.

The Court stated the trite position of the law by explaining that where an intending Appellant runs out of time in appealing against an interlocutory decision of any of the Courts subordinate to the Court of Appeal, the law grants him the unbridled licence to seek for an enlargement of time from the Court by dint of an application which usually warehouses trinity prayers. That the Court, in such application for an extension of time, always favours him with an indulgence of extension of time; MALARI V. LEIGH (2019) 3 NWLR (Pt. 1659) 332; (2018) LPELR-43823(SC).

The Court opined that the Appellants however failed/neglected to harvest their right under the sanctuary of an application for extension of time when their time to appeal against the lower Court’s interlocutory order expired by effluxion of time. That the failure is a costly one as it inflicts caustic consequences on their appeal. The notice of appeal, which was filed beyond the period, fourteen (14) days, allocated to them by the provision of Section 24 (2) (a) of the Court of Appeal Act, was infested and mired in the nest of incompetence.

On the Appellants’ grounds of appeal which is against the correctness of the lower Court’s exercise of its discretion in dishing out the order of status quo ante bellum, the Court stated that a ground of appeal which quarrels with an interlocutory decision of a lower Court which is anchored on exercise of discretion, is not a ground of law but a ground of mixed law and fact relying CHIEF OF AIR STAFF V. EDWARD (2019) 14 NWLR (Pt. 1691) 183; (2019) LPELR-51173(SC).

That the lower Court’s decision falls outside the province of Section 241 (1) (a) of the Constitution, as amended, in that it is not a final decision of the lower Court. Nor are the Appellants’ grounds of appeal accommodated by Section 241 (1) (b) thereof since they do not involve questions of law alone.

The Court went on to explain that a ground of appeal which questions a decision on mixed law and fact requires leave of the lower Court or that of the Court of Appeal in order to be competent, that where leave of Court, trial or appellate, is required for filing an action/process and a party ignores seeking and obtaining the requisite leave before filing same, the action/process is rendered incompetent.

The Court held that the Appellants neither sought for an extension of time to file the notice of appeal out of time nor obtained the permission of the Court of Appeal to appeal against the lower Court’s interlocutory decision, which was predicated on exercise of judicial discretion, which questioned mixed law and fact. That the Appellants’ failure to satisfy these twin conditions inflicted their notice of appeal and thus is indelible incompetence.

In conclusion, the Court held that the Appellants’ failure/neglect to enlarge the time within which to file the notice of appeal and want of leave before filing same constitute serious features that drained the Court of Appeal its requisite jurisdiction to entertain the appeal.

HELD
The Court of Appeal accordingly the appeal was struck out for being incompetent.
Appearances:
O. S. Sowemimo, SAN with him,
Akin Adewopo, Esq. – For Appellant(s)

Adeleke Adepoju, Esq. – For 1st Respondent(s)
Compiled by LawPavilion