Universal Trust Bank of Nigeria Ltd V. Tura Travels Tours Limited & Ors (1997)

LawGlobal-Hub Lead Judgment Report

MUHAMMAD, J.C.A. 

The claim of the appellant as plaintiff at High Court of Justice No. 9, Kano State (the trial court) against the respondents as defendants was for the sum of N5, 953,545.76 (Five million, nine hundred and fifty three thousand, five hundred and forty five naira, seventy six kobo) being money lent to the defendants by the plaintiff as bankers at the request of the defendants plus the accrued interest, as at 31st December, 1995. The appellant further claimed interest at the rate of 21% per annum from the 1st day of January, 1996 until final liquidation of the entire debt.

The suit was filed under the Undefended List on the 16/2/96. Notice of Intention to defend dated 23/5/96 was equally filed by the respondents/defendants. Arguments were taken by the learned trial Judge from learned counsel for the respective parties on the 27/6/96. On 25/7/96, the learned trial Judge delivered his ruling in which he ordered that the case be transferred to the general cause list, pleadings were as well ordered. The appellant/plaintiff was dissatisfied with the ruling and it appealed to this Court. A Notice of Appeal was filed at the lower court and it contained six grounds of appeal. The appellant filed its brief of argument on 3/12/96. The respondents, by leave of court filed their joint brief on 24/4/97.

In the process of hearing this appeal, the court suo motu raised the issue of the competence of this appeal before us in view of the provision of section 220(2) (a) of the Constitution of the Federal Republic of Nigeria, 1979. Opportunity was allowed to learned counsel from the respective sides to address this Court on the issue. Learned counsel for the appellant was of the firm view that the learned trial Judge gave a conditional leave to the respondent to defend the action as he had ordered for pleadings. This had therefore taken the situation out of section 220(2) (a) of the Constitution. Learned counsel for the respondents however submitted that the right of appeal exists only where it is expressly conferred by law. No condition was attached by the lower court for the 1st respondent to defend the suit. This appeal is therefore properly caught-by-section 220(2)(a) of the Constitution which renders the appeal incompetent. He urged this Court to hold that the appellant in the circumstance lacks any right of appeal.

In consistence with the provision of section 220(2)(a) of the 1979 Constitution and the principles laid down by the Supreme Court and this Court that no right of appeal shall exist on the decision of a trial court where it grants unconditional leave to a defendant to defend, I hold that the appeal at hand is incompetent. See: Societe Generale Bank Nig. Ltd. v. Panatrade Ltd. & ORS. (1994) 6 NWLR (Pt. 353) 720; NBN. v. Weide (1996) 8 NWLR (Pt.465) 150; (1996) 9-10 MAC, 209.

It is instructive to note too, that where the legislature has deprived a person from exercising some rights, no authority can restore such rights to him except where such legislation has been declared invalid by a competent court of law.

This has not yet been done by the Supreme Court in relation to section 220(2)(a) of the 1979 Constitution.

In conclusion I hold that the appeal at hand is totally incompetent. I would want to draw attention of learned counsel for the appellant that the era of tenacious, fruitless and empty arguments to impress the gallery is gone. Wise counsel does adjust promptly and concede to a point of law which is laid bare and clear for every one to see. The provision of section 220(2)(a) of the Constitution of the Federation 1979, is not in anyway a novelty. For all intents and purposes the section has unambiguously taken away any right of appeal in a situation where a trial Judge granted unconditional leave to a person to defend an action instituted against him.

As the appeal is incompetent before us, it is hereby accordingly struck out.

The respondents are entitled to N1,500.00 costs.

Other Citations: (1997)LCN/0257(CA)