3PLR – BRITISH & FRENCH BANK V. BRIT. C-WEALTH

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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BRITISH AND FRENCH BANK LIMITED

V.

BRITISH COMMONWEALTH INSURANCE COMPANY LIMITED

FEDERAL SUPREME COURT OF NIGERIA

F.S.C. 328/1960.

12TH MARCH, 1962.

3PLR/1962/45  (FSC)

OTHER CITATIONS

BEFORE THEIR LORDSHIPS

SIR ADETOKUNBO ADEMOLA, C.J.F. (Presided)

EDGAR IGNATIUS GODFREY UNSWORTH, F.J. (Read the Judgment of the Court)

SIR VAHE BAIRAMIAN, F.J.

MAIN ISSUES

PRACTICE AND PROCEDURE – APPEAL -Appeal as of right – Section 147 of the 1954 Constitution – Order of joinder – Whether final or interlocutory order.

PRACTICE AND PROCEDURE – APPEAL – Right of appeal – Final or interlocutory decision – Principles applicable.

PRACTICE AND PROCEDURE – Application for joinder – What Court should consider.

PRACTICE AND PROCEDURE – Final and interlocutory order – Deter­mining principles.

REPRESENTATION:

A.M. Ferguson (with him J.G. Bentley) – for the Appellants.

M.E.R. Okorodudu, (with him Miss F. O. Ayalogu, G.L. Impey and H.T.O. Baker) -for the Respondents.

MAIN JUDGMENT

UNSWORTH, F.J. (Delivering the Judgment of the Court): The appellants have appealed against three orders made by Bellamy, J., in which the Judge refused to join the appellants as plaintiffs in this action for money alleged to be due from the defendants on an Insurance Policy.

Counsel for the defendants raised a preliminary objection that the ap­peals were not properly before the Court, on the ground that the orders were interlocutory. It was agreed by Counsel for the appellants that at the time of the order no appeal lay to this Court from an interlocutory order, and the issue before us is whether these orders were final decisions within the mean­ing of s. 147 of the 1954 Constitution Order, which was the relevant appeal provision in force at the time of the orders. The section provides that an ap­peal shall lie as of right from final decisions in any civil proceedings before the High Court sitting at first instance.

Counsel on both sides referred to the decisions which are set out in the English Annual Practice under Order 58, Rule 4 of the Rules of the Supreme Court. We have already decided in the case of William Ude & Others V Josiah Agu & Others F.S.C. 54/1960; (1961) 1 SCNLR 98, that we will look at the order as made in deciding whether or not it is a final order, and in this respect we follow the principles laid down in Bozson V Altrincham, U.D.C. (1903), 1 K.B., 547.

I will now turn to the orders and examine them in the light of the deci­sion in William Ude & Others V Josiah Agu & Others (Supra).

The first order was made on the 17th May, 1960, when the Judge dismis­sed the appellants’ application on the ground that they had no locus standi. The reason for this was that the Judge considered that the appellants had not established an insurable interest in the property which formed the subject­ matter of the Insurance Policy.

The second order was made on the 22nd June, 1960, when the applica­tion was again refused in the following words:­

“In my opinion, the order of the 17th May, 1960 involved a find­ing that the Bank had no insurable interest in the subject-matter of the action. In the present application the Bank seeks to re­open that matter. I am satisfied that the Bank cannot now do so.

For these reasons, I have come to the conclusion, having care­fully considered the arguments addressed to me, that the plea of res judicata has been made out here, and accordingly, I would dismiss this application.”

The third order was made on the 4th July, 1960, after the appellants had sought to produce a debenture with a view to establishing that they had an insurable interest. The Judge refused to admit the debenture, on the ground that it was not registered under the Land Registration Ordinance, and again dismissed the application. In doing so, the Judge said:­

“This is the third unsuccessful application of the British and trench Bank Ltd. to be made a party to this suit, and this Court will not entertain any further applications of this nature by them.”

It is apparent that the present appellants made an application in the course of this suit to be joined as plaintiffs in the action. On the hearing of the application the Judge would have to consider whether the case was an appropriate one for joinder, in accordance with well established principles, but one would not have expected him on such an application to have gone into the issue of insurable interest beyond deciding whether there was a prima facie case for trial. Such a decision would have been interlocutory and would not have debarred the applicant from trying again, or the other par­ties (if it had gone against them) from contesting the point in the trial of the action. It seems to me, however, that the Judge went further than this. He dealt with the matter as though it was the trial of a preliminary issue and made an order on the merits. It is unnecessary for us to decide at this stage whether the Judge was right in adopting this procedure, but whether right or wrong, it has, in the event, resulted in the making of final orders.

I am of the view that the orders as made were final decisions, and the preliminary objection accordingly fails.

ADEMOLA, C.J.F.: I concur.

BAIRAMIAN, F.J.: I concur.

Appeal allowed.

Objection overruled.