This is a conundrum whose complexity continues to engender intense advocatorial back and forth inter partes, because a determination thereon to the utter discomfort of an appellant seeks a disposal of an appeal in limine. It is therefore little wonder that disputatious legal fireworks provoked by this issue have amassed a considerable amount of juridical ink and time. And no party whose appeal is being ominously pulled into the path of the trajectory of the litigational counter-offensive of a preliminary objection, on the ground that an appeal was not filed within 14 days and/or that leave was not sought and obtained to appeal, would fold his hands and not enkindle survivalist legal fireworks. The complexity of the issue whether a court’s decision is final or interlocutory was pointedly admitted by no less a jurist than Niki Tobi, JCA (as he then was, of blessed memory) in NWOKEDI V. U.B.N. PLC. (1997) 8NWLR (Pt.517) 407 at page 419 paragraphs F-G when he muttered thus; “I have taken time to examine the case law in some detail because of the principles of law governing the vexed problem of distinction between a final decision and an interlocutory decision. While the principles adumbrated by the courts are useful, what is most important, is for the court to carefully and scrupulously examine the particular matter before it in arriving at a conclusion one way or the other. This is one very difficult area of law, so much that Lord Denning came to the conclusion that ‘it is impossible to lay down any principle about what is final or what is interlocutory”. The Supreme Court in UGO V. UGO (2017) 18NWLR (Pt.1597) 218 made a pronouncement on the issue of whether a trial court’s decision is final or interlocutory, specifically with respect to a trial court’s decision that it has jurisdiction to hear a substantive matter. That is; does the decision of a trial court that it has jurisdiction to hear a substantive matter amount to a final or interlocutory decision? This was the narrow issue that minimally agitated the learned minds of our revered apex jurists. The Supreme Court after the standard demonstrative consultation with the relevant principles of law on how to determine whether a trial court’s decision is final or interlocutory proceeded to remarkably enunciate the law in these words per Onnoghen, CJN at pp. 241-242 paragraphs H-C; Once a court, in considering an interlocutory application challenging its jurisdiction comes to the conclusion that it has jurisdiction to hear and determine the substantive matter, that decision is a final decision on the issue of jurisdiction as that court cannot lawfully revisit the issue again in the same proceeding. The court thereby becomes functus officio on the issue irrespective of the fact that the decision arose from an interlocutory proceeding. By coming to the conclusion that the court had jurisdiction to entertain the petition for divorce, it had finally decided the rights of the parties as regards its jurisdiction, in the circumstances, an appeal against that decision must follow the procedures laid out in the rules of court for appeals against final judgments/decisions.” Also see as per Kekere-Ekun, JSC at pp. 244-245 paragraphs H-A. I am going to respectfully stricture this discourse around the legal compass of trial court’s decisions, as the Supreme Court decision under review considered a decision of High Court of the FCT, Abuja. The facts of this appeal which submit to brevity are that during the pendency of a divorce petition at the High Court of the FCT, the Respondent’s counsel filed a Preliminary Objection challenging the jurisdiction of the High Court to hear the petition. After taking arguments on the Preliminary Objection, the High Court in its subsequent ruling dismissed it, saying it had jurisdiction to hear the petition. Aggrieved, the Respondent appealed to the Court of Appeal. At the Court of Appeal, one of the objections raised against the competence of the appeal was that the appeal was against an interlocutory decision, for which leave was not sought and obtained before the appeal was filed. This objection at the Court of Appeal among others, was unanimously overruled and the appeal was decided on the merits. At the Supreme Court, the appeal further turned on among others the issue of whether the High Court’s decision that it had jurisdiction to hear the petition, when considering the interlocutory application challenging its jurisdiction was final or interlocutory. The Supreme Court in the foregoing excerpt from UGO V. UGO (Supra) articulated a new principle of law in line with the progressiveness inherent in justice administration, to the effect that the decision of a trial court is final and not interlocutory once it holds that it has jurisdiction to hear a substantive matter, when considering an interlocutory application challenging its jurisdiction. This pronouncement represents a new and radical shift on the issue as to whether the decision of a trial court that it has jurisdiction to hear a substantive matter is final or interlocutory. It is a salutary departure from the past. A detour, to briefly touch on the relevance of the distinction between final and interlocutory decisions would be requisite here. The relevance of this distinction which is very fundamental is twofold. Firstly, where a person desires to appeal to the Court of Appeal, section 24(2) (a) of the Court of Appeal Act stipulates that the periods for the giving of notice of appeal or notice of application for leave to appeal in a civil cause or matter is 14 days where the appeal is against an interlocutory decision and 3 months where the appeal is against a final decision. Secondly, section 241(1) of the 1999 Constitution (As amended) provides for appeals that lie to the Court of Appeal as of right. Section 241(1) (a) provides that appeals to the Court of Appeal against final decisions of a High Court sitting at first instance lie as of right. However, interlocutory decisions which do not come within the contemplation of section 241(1) (c), (d), (e) and (f) can only lie as of right from a High Court to the Court of Appeal pursuant to section 241(1) (b), where the grounds of appeal involve questions of law alone (the implication being, such interlocutory decisions whose grounds of appeal are spiced with mixed law and facts or facts alone, require leave in order to appeal). My humble standpoint that the Supreme Court’s pronouncement represents a new and radical shift stems from the backdrop that boatloads of decisions of our appellate courts have held contrariwise in very similar circumstances, i.e. such trial courts decisions have been held to be interlocutory and not final. Bending over backwards is called for hereabouts, as we take a closer look at the relevant paradigms at play when determining whether a decision is final or interlocutory. The Supreme Court in AKINSANYA V. U.B.A. PLC. (1986) 4 NWLR (Pt.35) 273, dwelt elaborately on this subject in the course of which the two alternative tests for determining whether a decision is final or interlocutory to wit; nature of the order test and nature of the proceedings test, were considered in detail as applied in England, and which of these was eventually embraced into our legal system. In summation, the Supreme Court per Kayode Eso, JSC (of blessed memory) at pp. 980-983 paragraphs H-C then proceeded to state thus; “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…. In other words, if the court of 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.” Thus, the nature of the order test referred to in AKINSANYA V. U.B.A. PLC. (supra) has continued to flourish in terms of its application. For instance the Supreme Court in ALOR V. NGENE (2007) 17NWLR (Pt.1062) 163 at p. 175 paragraphs F-H in re-echoing the entrenched position of the law posited thus;  “In plethora of decided cases, 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 in making the order. Therefore, the determining factor is not whether the court has finally determined an issue but it is whether or not it has finally determined the rights of the parties in the claim before the parties (sic; court).” In judicial loyalty therefore, scores of appellate decisions applying the determinate principle that a trial court’s decision that does not completely determine the rights of the parties, constitutes an interlocutory decision, have gone on to concomitantly hold that a trial court’s decision that it has jurisdiction to hear a substantive matter constitutes an interlocutory decision. See EBOKAM V. EKWENIBE & SONS TRADING CO. (1999) 10NWLR (Pt.622) 242 SC; B.O.N. V. BAMIDELE (2005) LPELR-11337 (CA); NWEZE V. AYOGHU (2013) LPELR-21887 (CA) among scores of others, which cases have held that a trial court’s decision that it has jurisdiction to hear a substantive matter constitutes an interlocutory decision. A seeming paradox that cannot be overlooked though, is the fact that the Supreme Court in UGO V. UGO (Supra) before coming to its decision, consultatively referred to ALOR V. NGENE (Supra) on the determinate principle that … 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 in making the order. Therefore, the determining factor is not whether the court has finally determined an issue but it is whether or not it has finally determined the rights of the parties in the claimHowever, the pronouncement in UGO V. UGO (Supra) is that once a court, in considering an interlocutory application challenging its jurisdiction comes to the conclusion that it has jurisdiction to hear and determine the substantive matter, that decision is a final decision on the issue of jurisdiction. This is an exemplification of the muttering by Niki Tobi, JCA (as he then was, of blessed memory) reproduced at the beginning of this discourse when His Lordship exclaimed about the complexity associated with distinguishing a final from an interlocutory decision. A discussion on the nuances at play in the various appellate decisions of our courts when determining whether a decision is final or interlocutory, perhaps should safely be left for some other time. Worth noting is that, just seven weeks after the landmark decision in UGO V. UGO (Supra), the same Supreme Court in C.G.G. (NIG.) LTD. V. ODURUSAM (2017) 17 NWLR (Pt.1595) 476 still kowtowed to the enrooted state of the law, when in determining “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” came to the verdict that the decision of the High Court that it had jurisdiction to hear the substantive matter is interlocutory and not final. For informative purposes, the decision in UGO V. UGO (Supra) was delivered on the 28th April, 2017 while that for C.G.G. (NIG.) LTD. V. ODURUSAM (Supra) was on the 23rd June, 2017. No doubt, there exists a schism between the Supreme Court pronouncements in UGO V. UGO (Supra) and C.G.G. (NIG.) LTD. V. ODURUSAM (Supra). In the face of this schism, I am firmly inclined to warmly embrace the pronouncement in UGO V. UGO (Supra) for its salutariness, as it represents a healthy new shift on the issue under consideration. It is has advanced a new legal order which gives the issue under consideration the seamlessness of ventilation it deserves, bringing it in sync with the kingly status jurisdictional issues enjoy in our legal clime. UGO V. UGO (Supra) succeeded remarkably in further shoring up the elevated status of the issue of jurisdiction in its position of primacy in our jurisprudence. It is a jurisprudential lip service by our legal system to adorn the issue of jurisdiction with a kingly status and still leave a medium of its ventilation circumscribed and limited by the hurdles emplaced for appeals against interlocutory decisions. It is this anomaly that the Supreme Court perchance had in mind when it made its landmark pronouncement. Treating a trial court’s decision that it has jurisdiction to hear a substantive matter as an interlocutory decision, for which an appeal must be filed within 14 days and for which leave must be sought and obtained (if the grounds of appeal do not involve questions of law alone), has its drawback effects and defeatist of the prime position the issue of jurisdiction occupies. The issue of jurisdiction having arisen at an interlocutory stage before a trial court should be outside the entrapment of a narrow 14 days period within which an appeal thereon must be filed and for which leave must be sought and obtained where the ground of appeal is not of law alone. The general legal atmosphere of unfetteredness enjoyed and enjoyable by the issue of jurisdiction for instance explains why the law is settled that the issue of jurisdiction can be raised at any stage and time even for the first time at an appellate court and without leave. Due to its fundamental nature, it is exempted from the disabilities and restrictions which hamper other legal points from being canvassed or agitated. WEMA SEC. & FIN. PLC. V. N.A.I.C. (2015) 16NWLR (Pt.1484) 93 S.C. The immediate foregoing among others were the factors that may have supposedly goaded particularly Onnoghen, CJN and Kekere-Ekun, JSC (in their respective concurring judgments) to gravitate towards pulling a jurisdictional issue away from the entrapments and hurdles emplaced for appeals against interlocutory decisions. UGO V. UGO (Supra) thus, out rightly elevated an appeal against a decision of a trial court that it has jurisdiction to hear a substantive matter, to an appeal as of right, and in the circumstance placed this jurisdictional issue in its rightful place of seamlessness in terms of its ventilation. Though the decision of the Supreme Court in UGO V. UGO (Supra) was a unanimous decision, the remarkable pronouncement under consideration was actually enunciated by Onnoghen, CJN and Kekere-Ekun, JSC in their respective concurring judgments. The leading judgment was read by Eko, JSC and His Lordship relied on other rationes to arrive at the same verdict in the composite and unanimous decision. On the place or efficacy of concurring judgments, the law has been put beyond doubt thereon as a concurring judgment has equal force with or as the leading judgment in so far as the principles of stare decisis are concerned. A concurring judgment complements, edifies and adds to the leading judgment. It could at times be an improvement of the leading judgment when the Justices add to it certain aspects which the writer of the leading judgment did not remember to deal with. On this, see the Supreme Court case of NWANA V. F.C.D.A. (2004) 13NWLR (Pt.889) 1282. In the face of the conflict between UGO V. UGO (Supra) and C.G.G. (NIG.) LTD. V. ODURUSAM (Supra) on the issue under consideration, where the Court of Appeal and other courts down the rung are confronted with an issue as to which of these conflicting Supreme Court decisions to apply, the latter or latest of them must be the one to be applied, which in this circumstance is C.G.G. (NIG.) LTD. V. ODURUSAM (Supra). On this point see the Supreme Court decision of OSAKUE V. FEDERAL COLLEGE OF EDUCATION (TECHNICAL) ASABA (2010) 10NWLR (Pt.1201) 1. Though the landmark principle enunciated in UGO V. UGO (Supra) is for now eclipsed and consigned to the shadows by the latterness of C.G.G. (NIG.) LTD. V. ODURUSAM (Supra), the law as articulated by UGO V. UGO (Supra) to the effect that a trial court’s decision that it has jurisdiction to hear a substantive matter constitutes a final decision, represents the better position of the law today. It is my singular hope and belief, moving forward, that the Supreme Court would in the very near future, when the opportunity presents itself, adopt, breath more life into and re-emphasize its landmark and laudable pronouncement in UGO V. UGO (Supra). Alaware Preye Isaac, Esq. a Private Legal Practitioner, is an Associate Counsel in the Law Firm of Timi Ambaiowei & Associates, in Yenagoa, Bayelsa State, Nigeria. He can be reached via; isaacalaware@gmail.com]]>

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