AUSTIN NWANA v. UNION BANK NIGERIA PLC (2013)

AUSTIN NWANA v. UNION BANK NIGERIA PLC

(2013)LCN/6480(CA)

In The Court of Appeal of Nigeria

On Friday, the 1st day of November, 2013

CA/K/166/2003

JUSTICES

THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria

ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria

HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria

Between

AUSTIN NWANA ESQ. Appellant(s)

AND

UNION BANK NIGERIA PLC Respondent(s)

RATIO

WHETHER OR NOT INTERLOCUTORY APPEALS SHOULD NOT BE EMBARKED UPON WHERE IT WILL AMOUNT TO FRAUSTRATING THE DETERMINATION OF THE SUBSTANTIVE MATTER

That means, what appeared as a simple case of debt, had been stalled for over ten years by the self inflicting application of the very plaintiff that instituted the suit! It has been stated, several times, that interlocutory appeals should not be embarked upon where that would amount to frustrating expeditious determination of the substantive matter at the lower court, exposing litigants to unnecessary hardship, waste of resources and judicial time, which, at the end, brings no benefit to any Party, nor advance the interest of justice. See the case of ADEYINKA AJIBOYE VS. FRN [2013] 17 WRN 127 held (9) and (10), where this court cautioned as follows:
“I think Counsel who are advising litigants aggrieved by interlocutory decisions of court should, themselves, be advised against subjecting their clients to avoidable hazards, suffering and spending, which premature appeals entail. Sometimes, a little patience and tact, on the part of Counsel, would suggest lying low, and marking down what could have been a point of interlocutory appeal, and opting to take it up at the end of the trial, if the final verdict becomes unfavourable, that is, where the issue for interlocutory appeal would not cease to be live issue in the final judgment of the trial court. Thus, where a party has cause to disagree with an interlocutory ruling of the trial court, over an issue which the party will not be foreclosed to raise at the final judgment of the substantive matter, I think the party (or his Counsel) should not rush to the Court of Appeal on the issue and stall the trial of the case at the lower court, since he will still be heard by the trial court, whether or not the interlocutory appeal succeeds, and his right of appeal will not be extinguished at the final judgment.”
See also UNITED FOAM PRODUCTS NIGERIA LTD. VS. OPOBIYI [2012] 6 NWLR [PT.1297] 429, where an appeal against an interlocutory ruling, delivered on 27/1/2009 had stalled the substantive matter until the appeal was disposed of on 27/1/2012! PER MBABA, J.C.A.

THE REQUIREMENT TO FILE A NOTICE OF PRELIMINARY OBJECTION

Of course, the requirement to file the Notice of Preliminary Objection appears to be what makes it mandatory for it to be filed, separately, as it is difficult to prove filing and payment for the Notice of Objection, when lumped together in/with the Respondent’s Brief, the rule being that, it is the filing fee that breaths life and legitimacy on the court process, (except where the fee is waived). See the case of MOYOSORE VS. GOV. KWARA STATE [Supra]; ESOHO VS. ASUGUO [Supra]; BAYERO VS. MAINASARA & SONS LTD. [2006) 8 NWLR [PT.982] 391; AYOADE VS. SPRING BANK PLC. [2013] LPELR – 20763 – CA: See also GARBA VS. UMMUANI [supra] where we held.
“Where a respondent attempts to give notice of preliminary objection to an Appeal by incorporating it in his brief of argument, that will amount to an attempt to smuggle in an objection to the hearing of the appeal and would lead to dismissal of the objection for conflicting with order 10 Rules 1 of the Court of Appeal Rules. In the instant case the Respondents incorporated both their notice of preliminary objection and the argument thereof in the respondents’ brief. That was not proper as what was filed and paid for by the 4th and 5th Respondent was not notice of preliminary objection but their respondent’s brief of argument. The respondents could therefore not establish the filing of the preliminary objection, pursuant to order 10 Rule 1 of the Court of Appeal Rules 2011”PER MBABA, J.C.A.

WHETHER OR NOT IT IS THE CONSTITUTION THAT DONATES THE OVERALL JURISIDICTION TO THE COURTS TO EXERCISE THEIR POWERS

It is the Constitution that donates the overall jurisdiction to the Courts to exercise their powers, which jurisdiction is further elaborated or confirmed by the relevant statutes creating the rights/obligations which a party seeks to enforce when he brings an action to be adjudicated upon in court. Thus, where an envisaged right/obligation, created by law, is also expressly withdrawn or suspended by the same, the claimant is left with an empty shell of what would have been his accruable right and will be holding on to a straw, without substance. His, becomes a right that is unenforceable; a cause of action that is voided by law. That appears to be the fate of a party who is aggrieved by a decision of a court, which grants a defendant leave to defend an action earlier placed on the undefended list, even if he has a thousand reasons to fault the exercise of the discretion by the lower court.
In the case of UGBA VS. SUSWAN [2013] 4 NWLR [PT.1345] held 19 the Supreme per ADEKEYE JSC, said;
“…the populace looks forward to the Judiciary as a body to dispense justice, but a Judge charged with that responsibility must always appreciate that the powers to do so are circumscribed by the dictates of the law. In short, justice to be dispensed by the Jury must be in accordance with the law. It therefore follows that where the words of the provisions of the Constitution or a statute are unambiguous and are rather clear in their ordinary and grammatical meaning, a Judge is duty bound to accord the wordings of the said provisions their literal, natural and grammatical meaning, accordingly.” See also ACTION CONGRESS v. INEC [2007] 12 NWLR [PT.1048] 222 AT 314-315. PER MBABA, J.C.A.

WHETHER OR NOT AN APPELLANT CAN QUESTION THE EXERCISE OF DISCRETIONARY POWERS BY THE TRIAL COURT WHERE THE DISCRETION WAS EXERCISED JUDICIALLY AND JUDICIOUSLY

Apart from the provisions of the Constitution, barring the right of appeal in such circumstances, an appellant lacks credible a basis to question the exercise of such discretionary powers by the trial Court, where the discretion was exercised judicially and judiciously. See the case of MILITARY GOV. LAGOS STATE VS. ADEYIGA [2012] 5 NWLR [PT.1293] 291 held 14:
“Where the exercise of discretion by a trial court is in issue, an appellate court is usually reluctant to interfere with the decision, except where the discretion was exercised in an arbitrary or illegal manner or without due consideration of the issues by the trial court. R. BANKAY NIG. LTD. v. CADBURY NIG. LTD [2006] 6 NWLR [Pt.976] 338; WILLIAMS VS. HOPE RISING VOLUNTARY FUNDS SOCTETY [1982] 1 – 2 SC 145. ELIDMHEN VS. MUSA [2000] 8 NWLR [Pt.669] 540; OYEKANMI vs. NEPA [2000] 15 NWLR [PT.690] 414; BIOCON AGRO CHEMICALS VS. KUDU HOLDINGS [2000] 15 NWLR [Pt.691] 493 referred to.” PER MBABA, J.C.A.

c ITA G. MBABA J.C.A. (Delivering the Leading Judgment): Appellant filed this appeal against an interlocutory ruling of Kaduna State High Court, in Suit No. KDH/KAD/263/2002, delivered on 24/7/2002, by Hajo Gwada J; the learned trial judge had earlier granted an application, on 24/4/2002, placing the Suit on the Undefended List for hearing and determination. On 9/5/02, when the matter was adjourned for hearing, the Plaintiffs Counsel Mrs. Daudu, announced that they had been served with a notice of intention to defend the suit. The case was further adjourned to 15/5/2002 for hearing, but on the said 15/5/2002, Plaintiff’s Counsel, this time, Joe Daudu (SAN) with him Miss Z. Bello, informed the court that no moves had been made yet for settlement and prayed that the matter be continued. (Apparently there were moves to settle the case out of court)
The Defendant’s Counsel then moved their motion for leave to enter appearance and an order for the defendant file and serve notice of intention to defend the suit out of time as well as an order deeming the notice of intention to defend, earlier filed and served, as being properly done. Of course, the Plaintiff’s Counsel opposed the application, saying that what the Defendant was required to file was a notice in writing showing that he intended to defend the suit and not a memorandum of appearance; that the rule having not been complied with, the application should fail; that the plaintiff did not have any application for intention to defend but only an affidavit. He urged the court to dismiss the application and enter judgment for the plaintiff, in the sum of N5,480,000.00, with 10% interest P.A, from 20/9/2000 until judgment.
In her Ruling, on 24/7/2002, the learned trial Judge said:
“….having gone through the proposed notice of intention to defend it is evident that there are triable issues to be resolved in view of this and in the interest of substantive justice, the defendant’s application is granted, it is hereby ordered that
i. Leave is hereby granted the defendant/applicant to enter appearance in this suit out of time.
ii. Leave is granted the defendant/applicant to file and serve its notice of intention to defend in this suit out of time
iii. The memorandum of appearance and the notice of intention to defend herewith attached are deemed as properly filed and served.” (Page 63 of the Records of Appeal)
The Plaintiff’s Counsel (this time Mrs. Daudu) asked for a date for hearing and the court said;
“This matter is therefore transferred to the general cause list and parties to file and exchange pleadings. The matter is adjourned to 15/09/02 for hearing.”
(Page 63 of the Records).
Of course, the plaintiff’s Counsel would not take that, and that is the decision the Appellant appealed against, as per the Notice of Appeal on pages 64 – 67 of the Records, filed on 7/2/03, which disclosed the following grounds of appeal:
“1. ERROR IN LAW
The Learned trial Judge erred in law when in considering the respondent’s application dated the 8th of May 2002 inter alia for extension of time to enter appearance and file her notice of intention to defend, she granted same on the ground that the affidavit in support contained triable issues, a point that was not relevant to the determination of the application, which was fought on germane grounds not considered by the said court.
PARTICULARS OF ERROR
i. When it was shown to the Court in the course of arguments on the application that the formal entry of appearance being sought by the applicant was not a requirement of the rules governing the undefended list under which the suit was filed and what was simply required was the filing of a notice of intention to defend.
ii. The lower court’s attention was also drawn to the omission by respondent to annex a notice of intention to defend the suit in writing, which omission was fatal to the entire application.
iii. There was therefore nothing to deem as being properly filed and served as no notice of intention to defend had been annexed to the applicant, there was therefore noting to consider in determining whether triable case had been disclosed or not and the matter being on (sic) properly brought under the undefended list ought to have proceeded unhindered to judgment for the plaintiff.
iv. Consequently the application ought not have been granted in the light of the foregoing fatal lapses.
2. ERROR IN LAW
The learned trial Judge erred in law fundamentally in law (sic), which error affected the jurisdiction of the court, when after purporting to grant the applicant’s application, she transferred the case to the general cause list without first of all hearing the matter on undefended list.
PARTICULARS OF ERROR
i. The hearing of the case on the undefended list was a condition precedent to the transfer of the matter to the general cause list and jurisdiction to proceed by the trial court was lost when the said hearing was not afforded to the parties.
ii. Consequently, the matter never left the undefended list and judgment ought to have been entered for the plaintiff.”
Appellant had obtained the leave of the court below, and extension of time to appeal out of time, He also sought an order to depart from the rules – permitting the appeal to be heard on the bundle of papers, annexed by the Appellant, as Exhibit X (the Record of appeal herein); he also sought at the lower court an order for accelerated hearing of the appeal and an interim stay of the proceedings of the case at the lower court pending the determination of the appeal.
There is no indication that the prayers for accelerated hearing of the appeal and stay of the substantive matter at the High Court were granted in the Ruling of the trial court, dated 4/2/03. It is equally doubtful that a trial court can grant accelerated hearing of appeal which it has no control of!
But at the hearing of this appeal, on 21/10/13, the Respondent hinted that the substantive matter had been stayed at the court below.
That means, what appeared as a simple case of debt, had been stalled for over ten years by the self inflicting application of the very plaintiff that instituted the suit! It has been stated, several times, that interlocutory appeals should not be embarked upon where that would amount to frustrating expeditious determination of the substantive matter at the lower court, exposing litigants to unnecessary hardship, waste of resources and judicial time, which, at the end, brings no benefit to any Party, nor advance the interest of justice. See the case of ADEYINKA AJIBOYE VS. FRN [2013] 17 WRN 127 held (9) and (10), where this court cautioned as follows:
“I think Counsel who are advising litigants aggrieved by interlocutory decisions of court should, themselves, be advised against subjecting their clients to avoidable hazards, suffering and spending, which premature appeals entail. Sometimes, a little patience and tact, on the part of Counsel, would suggest lying low, and marking down what could have been a point of interlocutory appeal, and opting to take it up at the end of the trial, if the final verdict becomes unfavourable, that is, where the issue for interlocutory appeal would not cease to be live issue in the final judgment of the trial court. Thus, where a party has cause to disagree with an interlocutory ruling of the trial court, over an issue which the party will not be foreclosed to raise at the final judgment of the substantive matter, I think the party (or his Counsel) should not rush to the Court of Appeal on the issue and stall the trial of the case at the lower court, since he will still be heard by the trial court, whether or not the interlocutory appeal succeeds, and his right of appeal will not be extinguished at the final judgment.”
See also UNITED FOAM PRODUCTS NIGERIA LTD. VS. OPOBIYI [2012] 6 NWLR [PT.1297] 429, where an appeal against an interlocutory ruling, delivered on 27/1/2009 had stalled the substantive matter until the appeal was disposed of on 27/1/2012!
Appellant filed his brief of argument in this appeal on 14/07/03 and a reply brief on 17/2/2011, upon being served with the Respondent’s brief, filed on 1/6/2009 and deemed filed on 8/2/2011.
Appellants Issues for determination were:
“(1) Whether on the materials placed before her by he defendant, the learned trial judge ought to have exercised her discretion in their favour when she granted the reliefs sought for extension of time to enter memorandum of appearance among others, or whether she ought to have entered judgment for the Plaintiff?
2. Whether the learned trial judge was correct when she transferred the matter to the general cause list without first affording the parties a hearing on the undefended list and if answered in the negative what is the proper order in the circumstances to make in order to redress the breach.”
The Respondent raised a Preliminary Objection against the Appeal in the Respondent’s Brief, and argue it as per pages 4 to 14 thereof. The Respondent’s Counsel had earlier filed a Notice of Preliminary Objection (on 19/11/2007), but withdrew it, unceremoniously. He disclosed this at the hearing of the appeal on 21/10/2013, when he prayed to be allowed to rely on the Notice of Preliminary Objection, incorporated in the Respondent’s Brief. Meanwhile, the grounds for the Notice of Preliminary Objection, canvassed in the Respondent’s Brief, pages 4-5 thereof, are, substantially, the same as the grounds of the earlier Notice of Preliminary Objection filed, separately, but withdrawn by the Respondent. They are as follows:
“(a) Section 241 (2) (a) of the Constitution of the Federal Republic of Nigeria 1999 has expressly taken away the right of appeal by any Plaintiff in a case of which a Defendant has been given unconditional leave to defend an action.
(b) The ruling of the Kaduna State High Court, which transferred the case from the undefended list and ordered for the filing and exchange of pleadings is not appealable.
(c) The appeal is incompetent, as it has been expressly disallowed by the Constitution of the Federal Republic of Nigeria 1999.
(d) Ground 1 of the Notice of Appeal: This ground violates the rules of Court because the particulars are mere narratives/arguments.
(e) Grounds (sic) 2 of the Notice of Appeal: This ground violates the rules of court because it is argumentative and the second particular do not flow from the said ground.”
The Respondent, on the substantive appeal, also raised two issues for determination, namely:
“(1) whether the learned Judge properly exercised her discretion when she granted the reliefs of the Respondent in the motion on Notice dated 8th May, 2002.
(2) Whether the learned Judge was right when she transferred the case from the undefended list to the general cause list and ordered for filing and exchange of pleadings… after she formed the opinion that the Respondent affidavit disclosed a defence on the merit, (Ground two)”
Whatever made the Respondent to withdraw the Notice of preliminary Objection it filed, on 19/1/2007, was greatly ill-advised. We have held, repeatedly, that a notice of Preliminary Objection, incorporated in the Respondent’s Brief, without being filed, separately, before arguing same in the Respondent’s Brief, is incompetent, as the same does not comply with the rules of this Court (Order 10 Rule 1), which stipulates that such “Objection to the hearing of the appeal shall give the Appellant three clear days notice thereof before the hearing setting out the grounds of objection, and shall file such notice together with twenty copies thereof with the registry within the same time.”
See the case of MOYOSORE v. GOV. KWARA STATE [2012] NWLR [PT.1293] 242; ESOHO vs. ASUQUO [2007] ALL FWLR [PT.359] 1355; GARBA VS. UMMUANI [2013] 12 WRN 76. [2013] LPELR -9841 (CA).

However, failure of a Respondent to properly originate a preliminary objection to the hearing of an appeal, does not preclude the court from considering any apparent defect to the hearing of the appeal found on the face of the Notice or Records of Appeal. See the recent decision of this Court (unreported) in the case of NDIC & ORS. v. DR. N. S. NWAWKA & 2 ORS. CA/K/425/2008, delivered on 25/10/13 (pages 10-11), where we held:
“Though the preliminary objection which the 1st Respondent tried to raise has been struck out, for incompetence, there is nothing stopping the court from evaluating and considering the process filed on the face of it, and pronouncing on any defect that can affect the hearing of the appeal.
See order 6 Rule 6 of the Court of Appeal Rules, 2011:
“The court shall have the power to strike out a notice of appeal when an appeal is not competent or for any other sufficient ground.”
And by Order 6 Rule 3 of the same Rules:
‘Any ground which is vague or general in terms or which discloses no reasonable ground of appeal shall not be permitted, save the general ground that the judgment is against the weight of evidence, and ground of appeal or any part thereof which is not permitted under this Rule maybe struck out by the court of its own motion or upon application of the Respondent.”
The case of Ayoade vs. Spring Bank plc (Supra) is also instructive, where it was held:
“I must also quickly add that even where a Respondent wrongly originated the notice of preliminary objection, the Appellate Court is still seised with powers to consider any defect apparent on the face of the notice and Grounds of appeal and on the issues distilled therefrom, and to rule thereon, as the Justice of the case may require.” Garba vs. Ummuani (2013) 12 WRN 76″.
As earlier stated in this Judgment, this appeal is against the exercise of the discretionary powers of the learned trial Court, allowing the Respondent to file its Notice of intension to defend a suit, placed on the undefended list, and transferring the said suit from the undefended list to the general cause list, after considering the affidavit of the Respondent accompanying the Notice of intension to defend the suit. According to the trial Judge, after going through the Notice of intention to defend the suit, and the affidavit, she said:
“There are triable issues to be resolved, in view of this, and in the interest of substantive justice, the defendant’s application is granted….. This matter is therefore transferred to the general cause list and parties to file and exchange pleadings”
Can Appellant raise an appeal against such exercise of discretion by the trial court, and is a decision of court giving a defendant an unconditional leave to defend an action, appealable? Those were the issues the Respondent sought to raise in its defective Notice of Preliminary Objection.
The provisions of Section 241 (2) of the 1999 Constitution of Federal Republic of Nigeria, as amended, says:
“Nothing in this Section shall convey any right of appeal –
a. From a decision of the Federal High Court or any High Court granting unconditional leave to defend an action.”
With such clear constitutional provisions, one wonders why the learned Senior Counsel, Joe Daudu (SAN), insisted on pursuing this appeal, even after the learned Counsel for the Respondent had filed a Preliminary Objection against the appeal, as per the Notice of same, on 19/1/07 (which he later withdrew), and thereafter in the Respondent’s brief, highlighting the said constitutional provisions.
It is the Constitution that donates the overall jurisdiction to the Courts to exercise their powers, which jurisdiction is further elaborated or confirmed by the relevant statutes creating the rights/obligations which a party seeks to enforce when he brings an action to be adjudicated upon in court. Thus, where an envisaged right/obligation, created by law, is also expressly withdrawn or suspended by the same, the claimant is left with an empty shell of what would have been his accruable right and will be holding on to a straw, without substance. His, becomes a right that is unenforceable; a cause of action that is voided by law. That appears to be the fate of a party who is aggrieved by a decision of a court, which grants a defendant leave to defend an action earlier placed on the undefended list, even if he has a thousand reasons to fault the exercise of the discretion by the lower court.
In the case of UGBA VS. SUSWAN [2013] 4 NWLR [PT.1345] held 19 the Supreme per ADEKEYE JSC, said;
“…the populace looks forward to the Judiciary as a body to dispense justice, but a Judge charged with that responsibility must always appreciate that the powers to do so are circumscribed by the dictates of the law. In short, justice to be dispensed by the Jury must be in accordance with the law. It therefore follows that where the words of the provisions of the Constitution or a statute are unambiguous and are rather clear in their ordinary and grammatical meaning, a Judge is duty bound to accord the wordings of the said provisions their literal, natural and grammatical meaning, accordingly.” See also ACTION CONGRESS v. INEC [2007] 12 NWLR [PT.1048] 222 AT 314-315.
I think the provisions of Section 241 (2) (a) of the 1999 Constitution, as amended, is quite clear and unambiguous, barring the right of appeal ” from a decision of the Federal High Court or any High Court granting unconditional leave to defend an action.”
Both the 2 grounds of appeal and the two issues distilled (from the grounds) have clearly canvassed Appellant’s grouse, that it is against the Ruling of 24/7/2002, granting the Respondent leave to file its Notice of intention to defend the suit, out of time, and based on the facts in the said notice, granting the Respondent unconditional leave to defend the suit by transferring it from the undefended list to the general cause list.
Appellant had tried to argue that the court did not hear the Parties, before making the order transferring the case to the general cause list. This is ridiculous, as the process of hearing an application to defend a suit is usually done, exclusively, by the trial court, by considering the facts in the affidavit accompanying the Notice of intention to defend the suit, and may not require any formal address by counsel or the parties. See the case of ILORIN EAST LOCAL GOV. VS. ALASINRIN [2012] ALL FWLR [PT.645] 226 where it was held:
“The discretion to place a suit on the undefended list resides with the trial judge, once he is satisfied, based on the depositions of the plaintiff, that there are good grounds to believe that the defendant has no defence to the action. Even when the defendant files a notice of intention to defend and an affidavit thereto, disclosing what he thinks are grounds to defend the action, the discretion still remains with the trial court to satisfy itself that the affidavit of the defendant discloses “a defence on the merit. The discretion of the trial judge, once it is exercised judicially and judiciously, cannot be overturned by the strength of the defendant’s argument no matter how strong, but merely founded on technicalities of law, to send the case back to the general cause list, as to do so will defeat the essence of the undefended list proceedings and impeach the discretion of the judge, that there was good grounds to hear the case on the undefended list, The trial court, however, has to be liberal in his approach, when scrutinizing the affidavit of the defendant in support of the notice of intention to defend, in order to determine whether a defence on the merit has been disclosed, to justify the call to transfer the case to the general cause list.”
(See also ATAGUBA & CO. VS. GURA NIG. LTD. [2005] ALL FWLR [PT.256] 1219; NISLIZAWA LTD. VS. JETHWANI [1984] 12 SC 23; FMG vs. SANI [1990] 4 NWLR [PT.147] 688.

THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I have read before now the leading judgment of this Court, delivered by my learned brother, Mbaba, J. C. A., and I agree with his decision and the consequential orders made therein.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I had the privilege of reading before now the lead judgment delivered by my learned brother, Ita Mbaba, JCA. His Lordship has painstakingly considered and resolved the issues contended by the parties in this appeal. I agree with the reasoning and abide the conclusions. I have nothing more to add.

Appearances

J. B. Daudu SAN with him I. L. Ogor Esq., Mrs. DauduFor Appellant

AND

Segun Adeoti Esq.For Respondent