Ekulo Farms Limited & Anor. V. Union Bank Of Nigeria, Plc (2006)

LAWGLOBAL HUB Lead Judgment Report

MUSDAPHER, J.S.C

In the High Court of Justice of Anambra State of Nigeria, in the Onitsha Judicial Division holden at Onitsha and in Suit No. 0/258/94, the plaintiff under the undefended list procedure claimed jointly and severally against the defendants the sum of N4,912,797.30 (Four Million Nine Hundred and Twelve Thousand Seven Hundred and Ninety Seven Naira and Thirty Kobo) with interest at the rate of 21% per annum from 1/2/1994 up to the date of judgment and thereafter at the rate of 5% per annum until the final liquidation of the judgment debt. The Writ of Summons marked “undefended” was served on both defendants and the suit was fixed for hearing on the 7/7/1994, the defendants on the morning of 7/7/1994 moved a Motion praying for enlargement of time within which to file a Notice of Intention to defend the suit and deeming the Notice of Intention to defend the action, exhibited as Exhibit “A” to the affidavit in support of the Motion as duly filed and served. The plaintiff opposed the application and filed counter-affidavits. The defendants after filing further affidavit in support of the Motion, finally moved the Motion on the 31/5/1995 and after hearing the argument of counsel, the learned trial Judge delivered his Ruling on the matter on the 25/7/1995. In concluding his Ruling, the learned trial Judge said thus:

“In the circumstances of this case I will grant the applicant in terms of the motion paper. The applicants are given up till to day to file their Notice of Intention to defend. The Notice of Intention to defend and accompanying affidavit already filed are deemed properly filed and served.”

The learned trial Judge did not stop there, he continued after granting the Motion before him:-

“I am satisfied that this case should be transferred from the Undefended List to General Cause List. I make the order accordingly.

Parties to file their pleadings in accordance with the Rules.”

The plaintiff felt unhappy with the decision and appealed to the Court of Appeal. Based on the grounds of appeal, three issues were submitted to the Court of Appeal for the determination of the appeal. The issues read:-

“1. Whether the trial court was right in granting the application of the defendants/respondents under Order 20 Rule 3(1), (2) of the High Court Rules 1988, in the circumstances of the case when the same Rules make special provisions under Order 24 Rule 9(1), (2), (3), (4), (5) for hearing of a suit placed in the Undefended List.

2. Whether the trial court had the jurisdiction to make the order transferring Suit No. 0/258/94 from the Undefended List to the General Cause List and ordering the parties to file their pleadings in the said suit when the said reliefs were not prayed for by the defendants/applicants in their Notice of Motion or in the course of moving their said Motion.
3. Whether the trial court was right in the Ruling on the application before him to go beyond the said application and deal with issues relating to the trial of the case and proper to determine the same without giving the plaintiff the opportunity of being heard on the said issue.”

In their brief as respondents at the Court of Appeal, the applicants herein raised the issue of the competency of the appeal. It was argued that once an order granting unconditional leave to defend an action is made, the plaintiff has no right of appeal against the decision in accordance with Section 220(2)(a) of the 1979 Constitution Learned Counsel relied on the case of National Bank of Nigeria Ltd. v. Weide & Co. (Nig.) Ltd. & Ors. (1996) 8 NWLR (Pt. 465) 150. Accordingly, the respondents to the appeal, the appellants herein urged the Court of Appeal to strike out the appeal.

In the lead judgment of the Court of Appeal delivered by Fabiyi, JCA., and concurred to by Akpabio and Mohammed, JJCA, the learned Justice at page 107 of the record stated thus:-

“It goes without saying that after granting extension of time to file Notice of Intention to defend the suit and deeming the same as filed and served, the trial court was duty bound to hear both sides on the next way forward. In Bello v. Farmers Supply Co. Ltd. (1994) 5 NWLR (Pt.342) 127 at page 132. It is clear that after a similar application was granted. The learned counsel for the appellants then moved and prayed the court to transfer the action to the general cause list. The position is the same in Barclays Bank DCP v. Onashile (1964) LLR 74 at 75, such tallies with reasoning, as a party should be heard before adverse order is made against him. I agree that the trial court was wrong to have gone beyond the application before it to make an order against the appellant without hearing his counsel on the same. Such was in breach of the rules of natural justice enshrined under Section 33(1) of the 1979 Constitution. To that extent, the order of the trial court transferring the suit to the General Cause List and filing of pleadings by the parties is null and void. The appellant is entitled to as a matter of justice to have same set aside xxxxxxxxxx”

On the issue of the Preliminary Objection to the competence of the appeal, the learned Justice said at page 108 of the record of appeal thus:-

“I now wish to touch on the respondents’ preliminary objection argued by their counsel towards the end of their brief. It was contended that vide Section 220(2)(a) of the 1979 Constitution, the appellant has no right to appeal against the order which transferred the suit to the General Cause List. The argument ingenious as it appeared, failed to hit the target. This is because the order has been found to be a nullity as it was made without jurisdiction. I agree that for a decision to be covered or protected by Section 220(2)(a) of the 1979 Constitution, it must not be a null decision order made without jurisdiction as in this case. The appeal touching on jurisdiction is one of law alone and there is not doubt that the appellant had the right of appeal under Section 220(1)(b) of the 1979 Constitution. The preliminary objection stands on a weak wicket. It is accordingly overruled.”

The Court of Appeal thus allowed the appeal in part and set aside the order transferring the suit to the General Cause List and remitted the matter back to the trial court for the matter to be stated de novo before another Judge. The defendants felt unhappy with the turn of events and they have now appealed with leave to this court. The Notice of Appeal contains two grounds of appeal. In the brief for the appellants filed by the learned counsel, two issues for the determination of the appeal are submitted and they read thus:-

“1. In view of the provisions of Section 220(2)(a) of 1979 Constitution of the Federal Republic of Nigeria (applicable in this case) was it proper for the Court of Appeal to hold that Order of the trial court transferring the sit to the General Cause List was null and void when, on the materials before it, both sides to this appeal are ad idem that the decision of the trial court supra gave the defendants/respondents appellants unconditional leave to defend the suit

2. Was the decision of the Court of Appeal to the effect that Section 220(2)(a) of the Constitution of the Federal Republic of Nigeria 1979 does not apply to null decisions correct in law”

The learned counsel for the respondent formulated and submitted one issue for the determination which in my view is covered by the issues formulated by the appellants.

The learned counsel for the appellants argued issues 1 and 2 together. It is submitted that the learned trial Judge clearly made two order (1) granting the appellants’ applicant by extending the time within which to file the Notice of Intention to defend the action and for deeming the Notice of Intention to defend as duly filed and served and (2) the order transferring the matter to the General Cause List – which formed the subject matter of the preliminary objection and the appeal herein. It is submitted that both parties agree that the effect of transferring the suit to the General Cause List is to let the appellants defend the action unconditionally and that by virtue of Section 220(2)(a) of the 1979 Constitution, there is no right of appeal from the High Court to the Court of Appeal. It is submitted that once an order is given granting leave to defend an action conditionally, the plaintiff has no right of appeal. See National Bank of Nigeria Ltd v. Weide & Co. (Nig) Ltd. supra.

It is submitted that the exercise of a right of appeal is statutory and the appellate jurisdiction of the Court of Appeal to hear and determine appeal from the High Court is also purely statutory. See: Ugwu v. A.G. of East Central State (1975) 6 S.C. (Reprint) 13; (1975) 6 S.C. 13; Adigun v. A.G. of Oyo State & Ors. (1987) 2 NWLR (Pt.56) 197. it is further stressed that eh Constitution has prohibited an appeal on the subject matter to the Court of Appeal and as such the Court of Appeal has no jurisdiction to entertain the appeal. The Court of Appeal has no competence to look into the matter no matter how well it was decided. It is again submitted that Section 220(1)(b) does not apply since the exclusion of jurisdiction under Section 220(2)(a) is absolute.

The learned counsel for the respondent on the other hand submits that the Order transferring the suit to the General Cause List was made without jurisdiction. It was made when it was not asked for and it was also made in breach of Section 33 of the Constitution 1979 when the respondent as the plaintiff was not given the opportunity of being heard. Learned Counsel for the respondent cited the following cases in support of the decision of the Court of Appeal and of the above submission:-

1. Etim Ekpenyong & Ors. v. Inyang Effiong Nyng & Ors. (1975) 2 S.C. (Reprint) 65; (1975) 2 S.C. 71.
2. Nigerian Housing Development Society Ltd. & Anor. v. Y.Y. Mumuni (1977) 2 S.C. 57 at 81.
3. Union Beverages Ltd. v. M.A. Owolabi (1988) 1 NWLR (Pt.68) 128; I.B.W.A. Ltd. v. Kennedy Transport (Nig.) ltd. (1993) 7 NWLR (Pt.304) 328.
4. Chief Lands Officer & Ors. v. Joel Alor & Ors. (1991) 4 NWLR (Pt.187) 617
5. Chief Godfrey Onyekwulunne & Ors. v. Augustine Ndulue & Ors. (1997)7 NWLR (Pt.512) 250 and
6. Ben. E. Chidoka & Anor. v. First City Finance Co. Ltd. (12001) 2 NWLR (Pt.697) 216.

It is argued further though Section 220(2)(a) of the 1979 Constitution prohibits or does not confer a right of appeal from a decision of the High Court granting unconditional leave to defend an action, the section does not protect or cover a situation where the order granting leave to defend the action is null and void. It is further submitted that a null order or judgment binds no one and is incapable of giving rise to any right or obligation under any circumstances. Learned counsel referred to Osafile v. Odi (1990) 5 S.C. (Pt.II) 1; (1990) 3 NWLR (Pt.137) 130 at 177. It is added that Section 220(2)(a) was not enacted to prohibit an appeal against an order or decision that is null and void. It is finally argued that the decision in National Bank of Nigeria Bank of Nigeria Ltd. v. Weide & Co. Nigeria Ltd. supra, is distinguishable from this case, in that case there was no issue of nullity o the order appealed. So that decision does not apply to the facts of this case.

Now Section 220 and 221 of the 1979 Constitution (in pari material with Sections 240 and 241 of the 1999 Constitution) make provisions for appeals from a decision of the High Court or the Federal High court to the Court of Appeal. Thus the exercise of appellate jurisdiction of the Court of Appeal from the decisions of the High Court is derived from the Constitution. The sections provide:-

“220(1). An appeal shall be from decisions of the High Court to the Court of Appeal as of right in the following cases-

(a) xxxxxxxxxxxx

(b) xxxxxxxxxxxx

(c) xxxxxxxxxxxx

(d) xxxxxxxxxxxx

(e) xxxxxxxxxxxx

(f) xxxxxxxxxxxx

(g) xxxxxxxxxxxx

(2) Nothing in this section shall confer any right of appeal:-

(a) from a decision of any High Court granting unconditional leave to defend an action.

(b) xxxxxxxxxxxx

(c) xxxxxxxxxxxx

221(1) Subject to the provisions of Section 220 of this Constitution, an appeal shall be from the decisions of a High Court to the Court of Appeal with leave of the High Court or the Court of the Appeal.

(2) (e) xxxxxxxxxxxx

It is trite law that the right of appeal is statutory and is contained in the Constitution and it is clear that Section 220(2)(a) of the 1979 Constitution has prohibited an appeal from a decision of any High Court granting an unconditional leave to defend an action. The facts of this case are clear. The respondent’s claims were placed o the Undefended List procedure and if the appellants did not take the appropriate steps timeously, judgment may be given against them on the next hearing date. They filed an application praying for extension of time to file the Notice of Intention to defend the action and also prayed for an order deeming the Notice of Intention to defend and the affidavit in support as duly filed and served. The learned trial Judge granted the prayers. But he went further to allow the defendants to defend the action by transferring the suit to the General Cause List and also by ordering pleadings. There is no dispute that the defendants did not move any Motion (oral or otherwise) to that effect, there is no dispute that the plaintiff was not heard before the Order of granting leave to defend the action was made. The trial Judge did not hear the parties before he reached his decision to allow the defendant to defend that action. Ordinarily he was wrong. He was wrong not to allow the defendants move to show that they have a prima facie defence to the action. He jumped the gun.

But what the trial Judge did was in essence, to grant the appellants as defendants, leave to defend the action. The question is, can the plaintiff respondent appeal against the decision as of right The first consideration is to see whether the said decision of the trial Judge comes within the provision of Section 220(2)(a) of the 1979 Constitution. It seems to me that the framers of the Constitution having set out the situations where an intending appellant can appeal as of right to the Court of Appeal in Section 220(1) and had made other provisions in Section 221(1) where appeals lie with leave, it intentionally excluded any right of appeal in the three cases set out in Section 220(2)(a)(b) and (c). In fact the exclusion under (a) and (b) is absolute whereas in (c) it is qualified.

Uwais CJN., In N.B.N. Ltd. v. Weide & Co. supra at page 167 stated thus:-

“The wordings of Section 220 subsection 2(a) of the 1979 Constitution (Cap. 62) Laws of the Federation of Nigeria, (1990) are very clear, they simply mean that there is no right of appeal from a decision of any High Court to the Court of Appeal where the former grants an unconditional leave to defend an action. In my opinion, the dissenting decision of Uwaifo JCA., in Societe Generale Bank of (Nig.) Ltd. v. Panatrade Ltd. & Ors. (1994) 6 NWLR (Pt.353) 720 at p. 734 is correct. The decision of the Court of Appeal in Nishizawa Ltd. v. Jethwani (1995) 5 NWLR (Pt.398) 668 at p. 670 per Nnaemeka-Agu, JCA (as he then was) appears to me with respect, to be wrong. In reaching that decision the Court of Appeal had to import words not found in the provisions of Section 220 subsection (2)(a) of the Constitution to arrive at the decision that there can be an appeal against the granting of an unconditional leave to defend an action.”

I respectfully agree, the provisions of the section are very clear and unambiguous. They do not therefore call for additional words before they can be given their ordinary meaning. In the instant case, the Court of Appeal was clearly in error to have imported the issue of the nullity of the Order which is not stated in the subsection as an exception to the intendment. Clearly, when the Court of Appeal held that the decision of the trial court transferring the suit to the General Cause List was null and void, the Court of Appeal was making a decision on the correctness, validity or otherwise of the decision of the trial court and that jurisdiction was clearly taken away from the court of Appeal. It is trite law that where a court or tribunal lacks the jurisdiction to adjudicate on a matter, any proceedings before it in relation to the subject matter, no matter how well conducted is an exercise is futility.

Now in decision, the court of Appeal appears to suggest that the respondent could appeal under Section 220, the learned Justice said at page 109 of the record of appeal thus:

“xxxx The appeal touching on jurisdiction is one on law alone and there is no doubt that the appellant had the right of appeal under Section 220(1)(b) of the 1979 Constitution……”

Now, Section 220(1) lists out cases where right of appeal as of right is conferred, while subsection (2) absolutely bars any right of appeal in the three case listed. Subsection (2) is explicit enough and is conclusive in what it forbids, that is the right to appeal in the three mentioned cases. In my view, the provisions of Section 220(2)(a) of the 1979 Constitution clearly preclude the Court of Appeal form considering an appeal on its merit on an issue where a High Court grants a defendant an unconditional leave to defend an action. The Court of Appeal would have no jurisdiction to entertain the appeal and decide it on the merits.

In the N.B.N. v. Weide Co case supra. Belgore JSC., at page 168, hit the nail on the head when he stated:

“The purport of Section 220(2) of the Constitution of the Federal Republic of Nigeria, 1979 is so clear that its interpretation should present no problem. There is no right conferred to appeal in the three instances mentioned therein. Section 221(supra) is made subject to Section 220 (supra) and I cannot find where the right to appeal the unconditional right to defend exists in the present suit now on final appeal to this court. The right to appeal from Court to the Court of Appeal is not ambiguous and 220(2)(a), (b) and (c) set out the situations that are not appeal-able. To bring in the effect of Section 221 of the Constitution (or Section 220(1)(b) is to do mischief to the intendment of Section 220(2).”

In my view, no matter how one looks at it, an appear under the circumstances is precluded and therefore the Court of Appeal is clearly and absolutely bereft of jurisdiction to entertain the appeal. Jurisdiction is the very basis on which any tribunal tries a case; it is the life line of all trials. A trial without jurisdiction is a nullity.

I accordingly resolve the two issues argued together in favour of the appellants. The appeal succeeds and is allowed me. The decision of the Court of Appeal given on 11/12/2000 is set aside. In its place, the appellants’ preliminary objection is upheld. There is no right of appeal for the respondents to appeal to the Court of Appeal on the question of granting the defendants leave to defend the action. The entire appeal before the Court of Appeal is rendered incompetent and is struck out. The appellants are entitled to costs both in the Court of Appeal and this court assessed at N7,500.00 and N10,000.00 respectively.

---

SC.306/2001