"This court further stated in the case APC v John & Ors (2019) LPELR – 47003 (CA) on Whether the decision of a Court upholding its jurisdiction is a final or an interlocutory decision; whether leave of Court is required to appeal against same, thus;

"The 1st & 2nd Respondents challenge to grounds 1, 2 and 5 of the Notice of Appeal is on the basis that the said grounds relate to an interlocutory decision of the lower Court for which leave was required to appeal on the said ground. The Appellant objected to the competence of the action at the lower Court and the jurisdiction of the lower Court to entertain the same. The lower Court incorporated the decision on the preliminary objection in the judgment in the matter whereby it upheld its jurisdiction and dismissed the preliminary objection. Doubtless, the scarified grounds of appeal are in respect of the decision of the lower Court on the issue raised in the preliminary objection filed by the Appellant. The right of appeal conferred by Section 241 (1) of the 1999 Constitution provides for appeals as of right against final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance.

The 1st & 2nd Respondents' contention, as I understand it, is that the decision of the lower Court upholding its jurisdiction and dismissing the preliminary objection is an interlocutory decision, for which leave is required before an appeal can be filed against the decision. It is no doubt the law that an appeal against an interlocutory decision, except where the grounds of appeal are grounds of law alone (see Section 241 (1) (b) of the 1999 Constitution), shall be with either the leave of the trial High Court or the Court of Appeal as stipulated in Section 242 (1) of the 1999 Constitution. By all odds, no leave was obtained before the Appellant filed its appeal, so if the decision appealed against is an interlocutory decision and the grounds of appeal are not grounds of law alone, then the appeal will be incompetent. But is the decision appealed against an interlocutory decision as argued by the 1st & 2nd Respondents We will find out in a trice. The question of when a decision is final or interlocutory is one which has agitated the Courts over the years, whether it is to be decided based on the nature of proceedings or application at which the decision is arrived at or based on the nature of the order made by the Court. Happily, the apex Court has laid the matter to rest and the applicable test in Nigeria is the nature of order test. In Poatson Graphic Arts Trade Ltd v. NDIC (2017) LPELR (42567) 1 at 6-9, this Court (per OGAKWU, JCA) stated:

"Central to the resolution of this first ground of objection is whether the decision of the lower Court was final or interlocutory..."

The decision of the lower Court was in respect of an application to dismiss the counterclaims of the Respondents. The lower Court allowed the application and dismissed the said counterclaims for being statute barred. It seems to me that the decision of the lower Court dismissing the counterclaims finally disposed of the rights of the parties in so far as the counterclaims were concerned and there remained nothing for the lower Court to determine in so far as it relates to the counterclaims. See Akinsanya v UBA (Supra); IGUNBOR v AFOLABI (Supra) and Odutola v Oderinde (Supra). Consequently, notwithstanding that the decision of the lower Court was in a Ruling delivered upon an interlocutory application the material consideration is not the function of the lower Court which delivered a Ruling, but the nature of the order made. Where, like in this case, the order is a dismissal, then it is a final decision. The test of determining whether a decision is final or interlocutory is now very well settled. In Alor v Ngene (2007) 17 NWLR (PT 1062) 163 at 178, Tobi, JSC stated:

"Two tests have been laid down for determining whether or not an order of Court is final or interlocutory. They are (a) the nature of the application made to the Court; (b) the nature of the order made. In Nigeria, it is the nature of order test that has been constantly applied. If the order made finally disposes of the right of the parties, then the order is final. If the order does not, then it is interlocutory. An order is also regarded as final if at once affects the status of the parties for whichever side the decision may be given, so that if it is given for the plaintiff, it is conclusive against the defendant, if it is given for the defendant, it is conclusive against the plaintiff. In order to determine whether or not the decision of a Court 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."

I iterate that the decision of the lower Court dismissing the counterclaim related to the subject matter of the dispute between the parties in the Appellants' counterclaims and it finally disposed of the rights of the parties in the said counterclaims. Accordingly, by the nature of order test applicable in Nigeria, it is a final decision: Omonuwa v. Oshodin (1985) 2 NWLR (PT 10) 924; Abubakar v Dankwambo (2015) LPELR (25698) 1 at 22-23 (CA) and Dankwambo v Abubakar (2015) LPELR (25716) 1 (SC). In the circumstances, applying the nature of order test, the question is whether the decision of the lower Court on the question of jurisdiction has finally determined the rights of the parties on the issue, It is not whether the decision finally disposed of the rights of the parties in the substantive action, see Igunbor v Afolabi (2001) 11 NWLR (PT 723) 148 and Western Steel Works Ltd v Iron & Steel Workers Union (1986) 2 NWLR (PT 30) 617. Without a doubt, the decision of the lower Court that it has jurisdiction concluded the rights of the parties on that issue. The parties can no longer approach the lower Court for anything else on that issue. The lower Court is functus officio on the issue and it is therefore a final decision. In Ugo V. Ugo (2017) LPELR (44809) 1 at 20-21, Onnoghen, CJN stated:

"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 of 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 his contribution at pages 24-26, His Lordship, Kekere-Ekun, JSC, stated: "The issue in contention is whether the decision of the trial Court in the circumstances was a final or interlocutory decision" Addressing this vexed issue in Alor v Ngene (2007) 17 NWLR (PT 1062) 163 at 175 F - H, (2007) 5 SC 30, His Lordship Kalgo, JSC held:

'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'.

His Lordship continued at page 177, D - E:

'A final order envisages that it is a permanent order made by the Court and the parties in respect of whom or against whom the order is made cannot go back to the same Court to challenge or change that order. The Court is, by virtue of the order, functus officio and the only option to the parties is by way of appeal against that order.'

per Niki Tobi, JSC at 179 - 180 H-A (Supra):

'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, a Latinism which literally means "having performed his or her office".

In the context of the Judge, it means that the duty or function that the Judge was legally empowered and charged to perform has been wholly accomplished and that the Judge has no further authority or legal competence to revisit the matter. See also: Ogolo v Ogolo (2006) 5 NWLR (Pt. 972) 173 at 187 C-H, (2006) 4 SCM, 147 per Onnoghen, JSC (as he then was). In the instant case, the trial Court having determined that it had the jurisdiction to entertain the petition had finally decided the rights of the parties as regards its jurisdiction and there could be no further reference to that Court in respect of that decision. Thus, even though the decision arose from an interlocutory application, the decision that the Court had jurisdiction to entertain the petition was a final one.

"I kowtow. The decision of the lower Court upholding its jurisdiction and dismissing the preliminary objection of the Appellant is a final decision. It is not interlocutory. Being final the Appellant could appeal as of right; it does not require the leave of Court under Section 242 (1) of the 1999 Constitution to appeal against the said decision." per OGAKWU, J.C.A ( PP. 20-28, PARA. D).

PER A.O.OBASEKI- ADEJUMO, J.C.A in the case of  JACOB LADIPO  V. SIL CHEMICAL LTD &  3 Ors

ELECTRONIC CITATION:LER(2019) CA/808/2017