KIZITO v. ACCESS BANK PLC
(2022)LCN/16998(CA)
In The Court Of Appeal
(YOLA JUDICIAL DIVISION)
On Monday, July 25, 2022
CA/YL/30/2021
Before Our Lordships:
Chidi Nwaoma Uwa Justice of the Court of Appeal
Fatima Omoro Akinbami Justice of the Court of Appeal
Jamilu Yammama Tukur Justice of the Court of Appeal
Between
EDEN B. KIZITO APPELANT(S)
And
ACCESS BANK PLC RESPONDENT(S)
RATIO
SITUATIONS WHERE AN INTENDING APPELLANT CAN APPEAL TO THE COURT OF APPEAL AS OF RIGHT
In the case of NATIONAL BANK OF NIGERIA LIMITED vs. WEIDE & CO NIGERIA LTD & 3 ORS (1996) 7 SC, the Supreme Court interpreting Section 220 (2) (a) of 1979 Nigeria Constitution, which Section is in pari materia with Section 241 (2) (a) of the 1999 Nigeria Constitution held per Ogwuegbu JSC thus:
“It seems to me that the legislature having set out the situations where an intending Appellant can appeal to the Court of appeal as of right in Section 220 (1) of the Constitution, and made other provisions in Section 221 (1) where Appeals are with leave, it intentionally excluded any right of appeal in the three cases set out in sub Sections 220 (2) (a) (b) and (c) of the 1979 Constitution. In fact, the exclusion in my view is absolute in Sub-Section 2 (a) (b)and (c) whereas Sub-Section 2 (1) is qualified in the sense that with the leave of the High Court, or the Court of Appeal, the right of appeal against a decision made with the consent of the parties or as to costs only is preserved…
Section 220–225 together and most importantly, sections 220–221, I am satisfied that the words used in Section 220 (2) are unambiguous, and ought to receive the construction according to their plain meaning. Section 220, cannot be read and constructed in isolation from Section 221, while Section 220 (1) deals with appeals as of right, Section 221 (1) deals with appeals with leave.
The special provision made by the legislature in Section 220 (2) must have been deliberate and for good reasons. PER AKINBAMI, JC.A.
THE POSITION OF LAW WHERE AN APPEAL REQUIRES THE OBTAINMENT OF LEAVE OF COURT
It is the position of the law that, where an appeal is one which requires the obtainment of leave, and such leave was not obtained either at the trial Court or at Court of Appeal, then such an appeal is held to be an incompetent appeal.
In the case of JEV & ANOR V. IYORTYOM & ORS (2014) LPELR – 23000 (SC) the Supreme Court per John Inyang Okoro JSC held thus:
“it is trite that where leave is required before an appeal could be filed, failure to obtain the leave would not only render the appeal incompetent but also rob the Court of its jurisdiction. The Court below captures the matter as follows on page 947 of the record of appeal:
“Under Section 24(2) of the Court of Appeal Act, the period for giving notice of application for leave to appeal in an interlocutory decision is fourteen days. Section 24(4) of the Court of Appeal Act vests the power of the Court to extend the period prescribed in subsection 2 and 3 of the section. It is crystal clear that the Appellant’s Ground one is on an interlocutory decision of the Court below. It did not arise from the judgment of the Court below delivered on 21st of March, 2011 which is the subject of this appeal as glaringly set out in the Notice of Appeal. The Appellant did not seek extension of time nor leave to appeal against the interlocutory order of the Court below. Ground one in the notice of appeal is incompetent and is hereby struck out.” PER AKINBAMI, JC.A.
WHETHER OR NOT THE COURT HAS THE INHERENT POWERS TO SET ASIDE ITS JUDGEMENT
Every Court of law has inherent powers to set aside its judgment or ruling where the Court is empowered by statutes to do so and under its inherent powers. In the case of UBA V SANNI (2019) ALL FWLR PART 983 PAGE 109 RATIO 5 PARAGRAPH D-G it was held thus:-
“1. A Court of law can set aside its own judgment or order in instances namely:
Where it is so empowered by statute to do so and
2. Under its inherent jurisdiction in specified and certain situations
3. Where it is shown that the decision reached in the judgment or order was made without jurisdiction or is a nullity due to absence of fair hearing, or was reached as a result of fraud..
4. When the Court was misled into giving judgment under a mistaken belief that the parties consented to it; or
5. Where the procedure adopted was such as to deprive the decision or judgment of the character of a legitimate adjudication.” PER AKINBAMI, JC.A.
FATIMA OMORO AKINBAMI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the High Court of Justice of Taraba state delivered on the 3rd day of February, 2021.
Dissatisfied with the decision of the lower Court, the appellant filed a notice of appeal on the 10th day of February, 2021.
FACTS
The Appellant obtained a summary judgment before the trial Court.
The Respondent as Defendant after the summary judgment filed an application to set aside the said decision.
The learned trial Judge assumed jurisdiction, heard the application and proceeded to set aside the summary judgment. The decision is at pages 112-115 of the Record of appeal.
Aggrieved by the decision of the trial Court, the Appellant has approached this Honourable Court for redress by filing a notice of appeal of five grounds.
The reliefs sought from this Court are:
1. AN ORDER of this Honourable Court allowing this appeal.
2. AN ORDER setting aside the decision of the High Court of Taraba State delivered by Honourable Justice l. M Sambo J. On the 3rd day of February, 2021 in Motion No TRSJ/385M/2020 between EDEN KIZITO V ACCESS BANK PLC.
3. Cost of filing and prosecuting this appeal.
4. AND for any further order(s) this Court may deem fit to make in the circumstance.
The Appellant’s brief settled by E.B Kizito Esq. was adopted by the learned counsel for the Appellant along with the Reply brief. The learned counsel urged the Court to dismiss the preliminary objection and hear the substantive appeal. He then urged the Court to allow the appeal.
At the hearing of this appeal on the 6th June, 2022, John Okezie Esq Learned counsel for the Respondent drew this Court’s attention to their Notice of Preliminary Objection duly filed in the Registry of this Court:
1. AN ORDER dismissing/striking out this appeal for want of jurisdiction.
2. SUCH FURTHER or other orders as this Honourable Court may deem fit to make in the circumstances.
The Grounds upon which the objection is raised are as follows:
1. The subject of this appeal relates to an interlocutory decision of the trial Court.
2. The trial Judge granted in the ruling under appeal unconditional leave to the Respondent to defend the suit.
3. Section 241(2)(a) of the C.F.R.N 1999 as amended prohibits any appeal against an Order granting unconditional leave to defend a suit.
4. Section 241(1)(a) and (b) of the C.F.R.N 1999 as amended requires that leave of this Honourable Court be obtained before the instant appeal can be validly filed.
ARGUMENT IN SUPPORT OF PRELIMINARY OBJECTION.
Respondent formulated two issues for the determination of the Preliminary Objection:
1. Whether the instant appeal is competent and maintainable in view of the provisions of Section 241(2)(a) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
2. Whether the instant appeal is valid without the obtainment of the leave of either the trial Court or this Honourable Court as required by the provisions of Section 241 (1)(a)(b) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
ARGUMENT ON ISSUE ONE:
Whether the instant appeal is competent and/or maintainable in view of the provision of Section 241(2) (a) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
Respondent’s counsel on Issue One submitted that the instant appeal is not permitted by the Constitution of the Federal Republic of Nigeria 1999 (as amended). A look at the provision of Section 241 (2) (a) will reveal that an appeal as the instant one is forbidden. The Section provides thus:
241 “Nothing in this Section shall confer any right of appeal-
a. From a decision of the Federal High Court or any High Court granting unconditional leave to defend an action.”
It is trite that, by the various Rules of the Federal High Court, and High Court Civil Procedure Rules, provisions exist which allow a claimant to proceed to pray for judgment where he believes that a Defendant does not have a defence to a suit filed.
As a means of ensuring a balance by the Rules, a Defendant to such a suit is usually permitted to put his defence before the Court, and in certain cases where a good defence is disclosed, the Court will naturally grant leave to the Defendant to defend the suit unconditionally.
Under the Taraba State High Court Civil Procedure Rules, Order 22 of the Rules provides thus:
ORDER 22
1. Where a Plaintiff believes that there is no defence to his claim, he shall file with his Writ of Summons, the statement of claim, copies of the exhibits, the depositions of his witnesses, and an application for Summary Judgment which application shall be supported by an affidavit stating the grounds for his belief, and a written address in respect thereof.
2. …
3. …
4. Where a party served with the processes and documents referred to in rule 1 intends to defend the suit, he shall, not later than 30 days, file his statement of defence, depositions of his witnesses, the exhibits to be used in his defence and a written address in reply to the application for summary judgment.
5. Where it appears to the Court that a Defendant has a good defence and ought to be permitted to defend the claim, he may be granted leave to defend.”
Where leave to defend is given under this Rule, the Defendant is called upon to enter his defence unconditionally.
It is in circumstances as in Order 22, Rule 5 above that, the provisions of Section 241 (2) (a) seeks to protect by providing that there shall be no appeal against such an order granting a defendant unconditional leave to defend a suit.
In the instant case, the trial Court on the 3rd February, 2021 by its ruling at pages 112 to 115 of the record of Appeal held thus:
“I accordingly in the interest of justice grant the application. I order that summary judgment entered in favour of the Plaintiff on the 28th day of September, 2020 is hereby set aside.
In the same vein, I grant leave to the Defendant/ Applicant to defend the suit.” (underlining ours)
Learned counsel submitted that from the above excerpts from the judgment of the trial Court, it is clear that the implication of the pronouncement of the Court is that the Respondent herein is given unconditional leave to defend the suit.
It is submitted therefore, that by virtue of Section 241 (2) (a) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), the Appellant is barred from bringing this appeal against the Respondent.
In the case of NATIONAL BANK OF NIGERIA LIMITED vs. WEIDE & CO NIGERIA LTD & 3 ORS (1996) 7 SC, the Supreme Court interpreting Section 220 (2) (a) of 1979 Nigeria Constitution, which Section is in pari materia with Section 241 (2) (a) of the 1999 Nigeria Constitution held per Ogwuegbu JSC thus:
“It seems to me that the legislature having set out the situations where an intending Appellant can appeal to the Court of appeal as of right in Section 220 (1) of the Constitution, and made other provisions in Section 221 (1) where Appeals are with leave, it intentionally excluded any right of appeal in the three cases set out in sub Sections 220 (2) (a) (b) and (c) of the 1979 Constitution. In fact, the exclusion in my view is absolute in Sub-Section 2 (a) (b)and (c) whereas Sub-Section 2 (1) is qualified in the sense that with the leave of the High Court, or the Court of Appeal, the right of appeal against a decision made with the consent of the parties or as to costs only is preserved…
Section 220–225 together and most importantly, sections 220–221, I am satisfied that the words used in Section 220 (2) are unambiguous, and ought to receive the construction according to their plain meaning. Section 220, cannot be read and constructed in isolation from Section 221, while Section 220 (1) deals with appeals as of right, Section 221 (1) deals with appeals with leave.
The special provision made by the legislature in Section 220 (2) must have been deliberate and for good reasons.
As l said earlier the legislature when it inserted Section 220 (2) did so deliberately having regards to the history of appeals in cases, and the peculiar nature of the two cases covered by the provision.
I am therefore in no doubt that having regard to Section 220 (2) (a) of the Constitution, the Plaintiff possess no right to appeal against the decision of Adeniji J. delivered on 23rd October, 1987. The right of appeal is created by statute or the constitution and no Court has the jurisdiction to hear any appeal unless it is derived from a statutory provision…
In conclusion, I hold that the Court of Appeal had no jurisdiction to hear and determine the appeal. Its decision on 9th February, 1989 is a nullity.
The appeal before us is incompetent and it is hereby struck out…”
It is submitted further that, even though the grounds of appeal in the instant appeal speak largely against the order of the trial Court, setting aside the summary judgment without mentioning the order granting the Respondent unconditional leave to defend this appeal, this appeal is still grossly incompetent because the two orders of the lower Court setting aside the summary judgment and granting leave to defend are composite orders which cannot stand separate from each other.
In the Supreme Court case of NATIONAL BANK OF NIGERIA LIMITED vs. WEIDE & CO NIGERIA LTD& 3 ORS (Supra) the Apex Court held thus:
“The submission by Chief Oriade that the appeal in the Court below was against the dismissal of the application by the Plaintiff for summary judgment, and not against the grant of unconditional leave to defend the action, is ingenious but not convincing. The dismissal of the application for summary judgment was consequential to the grant of the unconditional leave to defend the action. It is not, therefore possible to pursue one without the other. To allow an appeal against the dismissal of the application, the grant of the unconditional order will have to be set aside, and that can only come about where there is an appeal against the latter.
It is for these and the reasons contained in the judgment of my learned brother Ogwuegbu JSC, that I too hold that the appeal before the Court below was incompetent and should not have been heard. A fortiori the appeal to this Court is incompetent (sic). It is hereby struck out with One Thousand Naira N1,000 cost to the Respondents.”
Following a similar route in the same case of NATIONAL BANK OF NIGERIA LIMITED vs. WEIDE & CO NIGERIA LTD & 3 ORS (Supra) Oguntade JSC consolidated the above principle when he held further thus:
“An appeal against the Judge’s refusal to grant Plaintiff summary judgment where he has granted the defendant unconditional leave to defend the action is an appeal against the grant of the unconditional leave to defend. The refusal is not independent of the order of unconditional leave to defend.”
It is submitted that the learned Supreme Court Justices were unanimous in their decision in the case of NATIONAL BANK OF NIGERIA LIMITED Vs WEIDE & CO NIGERIA LTD & 3 ORS (Supra) and the case is on all fours with the instant case to wit:
a. The appeal in the case of NATIONAL BANK OF NIGERIA LIMITED Vs WEIDE & CO NIGERIA LTD & 3 ORS (Supra) arose from the decision of the trial Court refusing the Appellant’s application for summary judgment, and granting the Defendants leave to defend. In a similar vein, the instant appeal before this Court also arose from the decision of the trial Court setting aside its order for summary judgment, and granting the Respondent leave to defend.
b. The Supreme Court case of NATIONAL BANK OF NIGERIA LIMITED Vs WEIDE & CO NIGERIA LTD & 3 ORS (Supra) borders on interpretation of Section 220 (2) (a) of the 1979 Constitution which is in pari materia with Section 241 (2) (a) of the 1999 Constitution, as it applies to the instant appeal before this Court .
c. Both appeals i.e. NATIONAL BANK OF NIGERIA LIMITED Vs WEIDE & CO NIGERIA LTD & 3 ORS (Supra) are solely against the orders refusing the Appellants application for summary judgment and the setting aside of order of summary judgment respectively.
Following the position of the Supreme Court in the above case, this Court in the case of NWANA V UBN PLC (2015) N.W.L.R (PART 1439) PARAGRAPH G. MBABA J.CA held thus:
“I think the provision 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 grounds, that is against the ruling of 24th July, 2002, granting the Respondent’s leave to file its notice of intention to defend the suit, out of time and based on the facts in the notice of intention to defend the suit by transferring it from the undefended list to the general cause list.
In the circumstances, there is nothing to sustain this appeal, as it is grossly incompetent, Appellant being barred to appeal against the unconditional leave granted to the Respondent to defend the action…”
Finally, on the point, this Court had also in SOCIETE GENERALE BANK NIGERIA LTD vs. PANATRADE LTD & ORS (1994) 6 NWLR (PART 353) 720 dismissed the appeal on the ground that the Appellant therein had no right of appeal by virtue of Section 220 (2) of the 1979 Constitution.
This Court is therefore urged to uphold this issue of the preliminary objection, and to hold that the decision of the trial Court under appeal being one which granted unconditional leave to defend a suit is not appealable.
ARGUMENT ON ISSUE TWO:
Whether the instant appeal is valid without the obtainment of the leave of either the trial Court or this Honourable Court as required by the provisions of Section 241 (1) (a) and (b) of the Constitution of the Federal Republic of Nigeria 1999 (As Amended).
It is submitted that the instant appeal emanated from the decision of the trial Court delivered on 3rd February, 2021, which set aside the summary judgment previously entered in favour of the Appellant, and granted the Respondent unconditional leave to defend the suit.
This decision by its nature is not a final decision, but rather an interlocutory decision, which requires the leave of either trial Court to this Court to be validly appealed against.
Learned counsel submitted that, had the trial Court refused to set aside the summary judgment, then the judgment would automatically qualify as a final decision of the Court.
This is because in determining whether a decision of a Court is final or interlocutory, what is usually considered is the effect of the decision appealed against on the rights of the parties. If the decision determines finally the rights of the parties, then it is a final decision. If not, it is an interlocutory decision.
The importance of the above doctrine lies in the effect of the provision of Section 233, and 241, of the C.F.R.N. which prescribes for the requirement of leave obtained, either from the High Court or the Court of Appeal to maintain a competent interlocutory appeal.
He is not unmindful of cases listed under Section 241 (1) which create exceptions, where the leave of either Court is dispensed with, where a case falls within the prescribed exception. However, it is submitted that the instant appeal is not within the stated constitutional exceptions.
It is the position of the law that, where an appeal is one which requires the obtainment of leave, and such leave was not obtained either at the trial Court or at Court of Appeal, then such an appeal is held to be an incompetent appeal.
In the case of JEV & ANOR V. IYORTYOM & ORS (2014) LPELR – 23000 (SC) the Supreme Court per John Inyang Okoro JSC held thus:
“it is trite that where leave is required before an appeal could be filed, failure to obtain the leave would not only render the appeal incompetent but also rob the Court of its jurisdiction. The Court below captures the matter as follows on page 947 of the record of appeal:
“Under Section 24(2) of the Court of Appeal Act, the period for giving notice of application for leave to appeal in an interlocutory decision is fourteen days. Section 24(4) of the Court of Appeal Act vests the power of the Court to extend the period prescribed in subsection 2 and 3 of the section. It is crystal clear that the Appellant’s Ground one is on an interlocutory decision of the Court below. It did not arise from the judgment of the Court below delivered on 21st of March, 2011 which is the subject of this appeal as glaringly set out in the Notice of Appeal. The Appellant did not seek extension of time nor leave to appeal against the interlocutory order of the Court below. Ground one in the notice of appeal is incompetent and is hereby struck out.”
Referring to the instant case, counsel submitted that the decision under appeal is an interlocutory decision for which the Appellant ought to have sought leave of either the trial Court, or this Honourable Court, but which leave was never sought or obtained by the Appellant.
The legal consequence as borne at by the above cases is that this appeal is incompetent and liable to be struck out this Court is urged to so hold.
It is submitted that grounds 4, and 5, of the Appellant’s Notice of Appeal, are incompetent grounds of appeal being comprised of mixed law and fact, which necessitates that the Appellant obtain leave of the trial Court or this Honourable Court before filing them.
Learned counsel submitted further that, the lone issue for determination formulated by the Appellant in this instant appeal, having been sifted from grounds 4 and 5 is also rendered incompetent. The said grounds 4 and 5 of the Appellant’s Notice of Appeal together with their particulars of error are reproduced hereunder:
“GROUND FOUR
The learned trial Judge erred in law and occasioned a miscarriage of justice when he held thus:
“A careful look at the reasons itemized above will show that the grounds of judgment obtained in default of appearance is that this Honorable Court entered summary judgment in favour of the Plaintiff on the 28th day of September, 2020 for failure of the defendant to file a counter affidavit to the motion for summary judgment as per Exhibit ‘A’, however the applicant did exhibit the ruling of this in suit No. TRSJ/321M/2020 dated 28th day of September, 2020.”
Particulars of Error
1. No reasons were itemized in the entire ruling which show that the grounds of the summary judgment was granted in default of appearance.
2. The summary judgment was not granted because of default of appearance.
3. A summary judgment cannot be set aside by the same Court that granted it. It is considered a judgment on the merit in law.
GROUND FIVE
The learned Judge erred in law and occasioned a miscarriage of justice when he held thus:
“It is my considered view that since the defendant’s judgment is based on motion no: TRSJ/321M/2020, the applicant has shown that there was good reason for this delay in bringing the application, and I am of the view that the respondent will not be prejudiced or embarrassed if the order for re-hearing is made.”
Particulars of Error
1. In law, and considering Order 16 and Order 22 of the Taraba State High Court (Civil Procedure) Rules, 2011, only default judgment obtained under the former can be set aside.
2. There is no judgment obtained by any based on Motion no: TRSJ/321M/2020.
3. The application to set the summary judgment leading to the ruling being appealed against is an abuse of the process of Court.”
On the method to be adopted in distinguishing between grounds of law and mixed law and facts, the Supreme Court in the case of N.N.P.C v. FAMFA OIL LTD. (2012) 17 NWLR (PART 1328) PAGE 148 held thus:
“At times the difference between a ground of law and a ground of mixed law and facts can be very narrow. Labeling a ground of appeal as an error of law, or misdirection may not necessarily make it so. The appellation is irrelevant in determining whether ground of appeal is of law or mixed law and fact. The Court should examine the grounds and their particulars and identify the substance of the complaint. In that way the issue of whether a ground of appeal is of law or mixed law and fact would be resolved. Identifying a ground of appeal on facts is easier.”
Recently, comprehensive guide in the classification of grounds of appeal as either grounds of law or mixed law and facts, was laid down by the Supreme Court in the case of OKOLONWAMU V. OKOLONWAMU (2019) 9 NWLR (PART 1676) PAGE 1. Where it held thus:
“(a) Where the Court is being invited to investigate the existence or otherwise of certain facts upon which the award of damages to the respondent was based, such a ground of appeal is a ground of mixed law and fact;
(b) A ground of appeal which challenges the findings of fact made by the trial Court or involves issues of law and fact is a ground of mixed law and fact;
(c) Where the evaluation of facts established by the trial Court before the law in respect thereof is applied is under attack or questioned, the ground of appeal is one of mixed law and fact;
(d) Where evaluation of evidence tendered at the trial Court is exclusively questioned, it is a ground of fact simpliciter;”
A glimpse at grounds 4 and 5 of the Appellant’s Notice of Appeal would reveal that the said grounds are caught up by the classification made by the Supreme Court in OKOLONWAMU V. OKOLONWAMU (Supra) in the following ways:
(a) Appellant’s ground 4 and 5 with their particulars of error challenges the findings of facts made by the trial Court, thereby rendering the ground to be of mixed law and fact.
(b) The Appellant’s ground 4 and 5 with their particulars of error also attacks the evaluation of facts established by the trial Court before the law in respect of the matter.
(c) The Appellant’s ground 4 and 5 with their particulars of error also invites the Court to investigate the existence or otherwise of certain facts upon which the trial Court set aside its summary judgment.
Learned counsel surmised that it is crystal clear from the Appellant’s grounds 4 and 5 that both grounds are grounds of mixed law and facts, which require that leave of the trial Court or this Honourable Court must be sought and obtained before filing. However, the Appellant did not seek nor obtain the leave of the trial Court, nor this Honourable Court before filing grounds 4 and 5. This in effect renders Appellant’s grounds 4 and 5 incompetent.
It is further submitted that an issue for determination can be distilled from more than one ground of appeal, and any issue which is formulated from an incompetent ground of appeal is in itself incompetent.
In the case of BARRISTER ORKER JEV & ANOR. V. SEKANDZUA IYORTYOM & ORS. (2014) NWLR (PART 1428) 575 AT 608 F – H TO 609 the Supreme Court PER OKORO, JSC held thus:
“On the other submission which stretched argument in this issue much longer, I wish to say that this Court has, in a plethora of decisions held that though one can validly lump several related grounds of appeal into one issue and argue same together, if any of the grounds so lumped together is found to be incompetent, then it contaminates the whole issue and renders it incompetent as the Court cannot delve into the said issue on behalf of the litigant and exercise the argument in respect of the competent grounds from those of the incompetent grounds in the issue. The law is no doubt settled that any issue or issues formulated for the determination of an appeal must be distilled from, or must arise or flow from a competent ground or grounds of appeal. Again, issues distilled from either incompetent grounds of appeal or a combination of competent and incompetent grounds of appeal are in themselves not competent and are liable to be struck out.”
The Appellant in the instant appeal distilled a lone issue for determination from grounds 1, 2, 3, 4 and 5 of his Notice of Appeal. The implication is that if this Honourable Court determines that Appellant’s grounds 4 and 5 are incompetent, the Appellant’s lone issue argued in his brief of argument will be contaminated by the Appellant’s grounds 4 and 5 and thereby rendered incompetent too.
Finally, this Court is urged to hold that Appellant’s grounds 4 and 5, together with his sole issue for determination are incompetent and liable to be struck out, the two grounds having been filed without the leave of the trial Court or this Honourable Court.
APPELLANT’S REPLY TO THE RESPONDENT’S ARGUMENT IN SUPPORT OF ITS PRELIMINARY OBJECTION.
Learned counsel for Appellant argued the two issues raised by Respondent together. He submitted that gravamen of the respondent’s grouse in its Preliminary objection is that, the decision appealed against is an interlocutory decision, and some of the grounds of appeal are grounds of mixed law and facts that require leave being sought and obtained before the appeal can be said to be valid.
The Supreme Court case of IFEANYICHUKUWU TRADING INVESTMENT VENTURES LTD. AND ANOR. V. ONYESOM COMMUNITY BANK LTD. (2015) 17 NWLR (PT.1487) 1 at 31 32 decided it that the undefended list procedure and summary judgment procedure are the same, and judgment obtained under any of the procedure, is a judgment on the merit, not a default judgment, and may only be set aside on grounds of fraud and/or denial of fair hearing.
The Supreme Court, in AJE PRINTING NIG LTD V EKITI L.G.A (2021) 13 NWLR (Pt. 1794) 498, while pronouncing on the principle of judgment under undefended list procedure which is akin to summary judgment procedure, held that “The judgment of the trial Court under the undefended list is a judgment on the merits, and final. In this case, the respondent failed to file a defence to join issues with the appellant at the trial Court before the judgment was entered in favour of the appellant. In the
circumstance, the trial Court become functus officio at the time the respondent filed its motion on notice praying for the setting aside of the judgment of the trial Court. [Akpaji v Udemba] (2009) 6 NWLR (pt. 1138) 545 referred to.] (Pp. 537-538), paras. H-A)
In the case of UBA v JARGABA (2007) 11 NWLR (Part 1045) Page 247 at Page 272 Para E-H, Tobi, JSC stated that Summary Judgment is a truncated form of hearing due to the absence of an issue to be tried.
It was noted by Appellant’s counsel that as at the time the application for summary judgment was moved, and adjourned for ruling, there was no Defence, thus issues were not joined to invoke the Court to try them.
At paragraphs 4.31-4.39 of the Respondent’s Brief of Argument, counsel for the Respondent argued that, the issue for determination formulated by the Appellant is incompetent, because according to him, at paragraph 4.34 of the Respondent’s Brief at page 21, “A glimpse at grounds 4 and 5 of the Appellant’s Notice of Appeal would reveal that the said grounds are caught up by the classification made by the Supreme Court in OKOLONWAMU V. OKOLONWAMU (SUPRA)…
a. …challenges the findings of facts made by the trial Court…”
b. …attacks the evaluation of facts…”
c. …invites the Court to investigate the evidence or otherwise of certain facts upon which existence or otherwise of certain facts upon which the trial Court set aside its summary judgment.”
Learned counsel referred to the submission of Respondent’s counsel that it is manifestly misconceived. It is a futile attempt to give grounds that are purely of law a bad name. In that, the grounds of appeal in this appeal do not in any way challenge findings of fact even remotely. The grounds do not attack evaluation of facts by the trial Court, as the Respondent has argued. It is submitted that, this Court has not been called upon to investigate certain facts. Rather, the Court is being called upon to determine if the trial Court was right to have set aside a summary judgment after delivery of same. The submission at paragraph 4.35 of the Respondent’s Brief is misconceived. Grounds 4 and 5 of the Notice of Appeal are not grounds of mixed law and fact requiring leave. In ENTERPRISE BANK LIMITED v. DEACONESS FLORENCE BOSE AROSO & ORS (2015) LPELR-24720(SC), the Supreme Court held thus: Generally, the law is that after a judgment has been given and delivered, even if it is a consent judgment entered under a mistake, the Court no longer has the power to set it aside except in the following situations, which though not exhaustive. (a) Where there has been a clerical mistake or an error arising from an accidental slip or omission in the judgment under the slip rules; (b) Where the judgment as drawn up does not correctly represent what the Court actually decided or intended to decide; (c) Where the order is a nullity owing to failure to comply with an essential provision such as service of process which can be set aside by the Court which made the order and; (d) Where a judgment or order is made against a party in default. See; Obimonure v. Erinosho (1966) 1 All NLR 245; Adeigbe v. Kusimo (1965) NMLR 284; Obioha v. Ibero (supra).” Per ARIWOOLA, J.S.C (Pp. 22 paras. A). In MICHAEL ADEBOYE v. STEVE BAJE (2016) LPELR-40578(CA), this Court held thus: “As a corollary to what I said earlier, a summary judgment procedure is a procedure whereby the Court gives judgment in favour of a party without a full trial. Any judgment given thereon is a judgment on the merits because it is based on the lack of defence to the claim and same cannot generally be set aside by the Court that granted it except as provided, if any, by the applicable Rules or Statues. Consequently, it is deemed a final judgment and the only option available to an aggrieved litigant is to proceed on appeal if he wishes to have the judgment to be set aside. “Per OBASEKI-ADEJUMO, J.C.A (Pp. 27 para. A). The argument by the Respondent that the Summary Judgment under reference is an interlocutory decision, which requires an appellant to first seek and obtain leave, is misconceived. The decisions of NATIONAL BANK OF NIGERIA LIMITED Vs WEIDE & CO NIGERIA LTD & CO. (SUPRA), NWANA V UBN (SUPRA) and SOCIETE GENERALE BANK NIGERIA LTD vs. PANATRADE LTD & ORS (SUPRA) cited by the Respondent’s counsel were cited out of context.
It is submitted that being a final decision, the Appellant was under no legal burden to obtain leave to appeal, as erroneously canvassed by the Respondent. Furthermore, the instant appeal is not against any unconditional leave to defend a suit as the Respondent has argued.
This Court is urged to discountenance the arguments in support of the Respondent’s preliminary objection and dismiss same for lacking in merit.
RESOLUTION OF PRELIMINARY OBJECTION
The preliminary objection of the Respondent to Appellant’s appeal is that the appeal lacks jurisdiction, it ought to be dismissed or struck out.
I have carefully perused the arguments of Respondent’s counsel on his preliminary objection, as well as the reply of Appellant’s counsel to Respondent’s arguments.
The gravamen of Respondent’s grouse in its preliminary objection is that the decision appealed against is an interlocutory decision, and some of the grounds of appeal are grounds of mixed law and facts that require leave being sought and obtained before the appeal can be said to be valid.
This appeal is against the decision of the High Court of Taraba State delivered on 3rd February, 2021, wherein the learned trial Judge set aside the summary judgment entered in favour of the Appellant on 28th September, 2020 and granted leave to the Respondent to defend the suit. The Appellant aggrieved by the said decision has filed this appeal.
The Respondent rightly referred to the excerpt from the ruling of the trial Judge delivered on the 3rd February, 2021 thus:
“…Attached to the affidavit are Exhibits A ruling in Suit No: TRSJ/321M/ 2020 and Exhibit B DEFENDANT’S STATEMENT OF DEFENCE AND EXHIBIT C witness statement on Oath. The application is also supported with a written address…
How (sic) in the instant case the Appellant has filed defence as exhibited in Exhibit B and Exhibit C.
It is part of the duty of a Court to see everything is done to facilitate the hearing of an action. It is my considered view that since the default judgment is based on Motion No: TRSJ/321M/2020, the applicant has shown that there was good reason for his delay in bringing the application and l am of the view that the Respondent will not be prejudiced or embarrassed if the Order for rehearing is made.
The Respondent’s counsel pointed out correctly the misconception and misunderstanding of a judgment under Order 22 of the High Court Rules. It was correctly stated by Respondent’s counsel that, in the instant case the summary judgment did not state that there is a defence by the Respondent, which when scrutinized did not reveal a defence on the merit rather the judgment was in default of a defence. In fact, the Judge did not resolve any controversy, neither did the learned trial Judge comment on the substance of the suit.
It was correctly stated by Respondent that the summary judgment which was set aside by the trial Court was not a judgment on the merit but rather a judgment in default of defence.
The Respondent’s counsel stated the correct position of the law that the cases cited by the Appellant under the heading Final Decisions/Functions Officio are not applicable to this instant appeal.
Every Court of law has inherent powers to set aside its judgment or ruling where the Court is empowered by statutes to do so and under its inherent powers. In the case of UBA V SANNI (2019) ALL FWLR PART 983 PAGE 109 RATIO 5 PARAGRAPH D-G it was held thus:-
“1. A Court of law can set aside its own judgment or order in instances namely:
Where it is so empowered by statute to do so and
2. Under its inherent jurisdiction in specified and certain situations
3. Where it is shown that the decision reached in the judgment or order was made without jurisdiction or is a nullity due to absence of fair hearing, or was reached as a result of fraud..
4. When the Court was misled into giving judgment under a mistaken belief that the parties consented to it; or
5. Where the procedure adopted was such as to deprive the decision or judgment of the character of a legitimate adjudication.”
The Respondent’s counsel rightly pointed out that the grounds of appeal in this instant appeal speak largely against the order of the trial Court setting aside the summary judgment without mentioning the order granting the Respondent leave to defend this appeal. This appeal is grossly incompetent because the two orders of the lower Court setting aside the summary judgment and granting leave to defend are composite orders which cannot stand separately from each other.
From all l have elucidated, the preliminary objection filed by the Respondent is upheld, there is no need to go into the substantive appeal. My stance is emboldened by the decision of the apex Court in the case of Dr. Okey Ikechukwu vs. FRN. & Ors. (2015) 7 NWLR (Pt. 1457) 1, per Nweze, JSC. where at p. 21, paras. B-G and P. 22, para. C, he enjoined that:
As a general rule, an intermediate Court, like the Court of Appeal has a duty to pronounce on all the issues before it. However, there are exceptions to the foregoing rule. Thus, for example, where the Court of Appeal decides that it lacks jurisdiction in an appeal before it, it becomes unnecessary for the Court of Appeal to consider other issues. In this case, the Court of Appeal upheld the 1st Respondent’s Preliminary Objection to the competence of the Appellant’s appeal. In the circumstance, it was unnecessary for the Court of Appeal to consider the arguments in support of the issues for determination distilled by the parties to the appeal.
It is in the wake of the foregoing superior authority that I steer clear of the rest of the issues raised for determination in this appeal. The preliminary objection as raised by the respondent against the hearing of the appeal is well founded and therefore succeeds. Accordingly, the appeal being incompetent for want of the requisite jurisdiction, is hereby struck out.
CHIDI NWAOMA UWA, J.C.A.: I read before now, a draft copy of the judgment delivered by my learned brother FATIMA OMORO AKINBAMI, JCA, I agree with his reasoning and conclusion arrived at in upholding the preliminary objection. I also uphold same, the appeal is incompetent and it is accordingly struck out for want of jurisdiction.
JAMILU YAMMAMA TUKUR, J.C.A.: I had the opportunity of reading before now, the draft copy of the lead judgment just delivered by my learned brother FATIMA OMORO AKINBAMI, JCA. I agree with the findings of my Lord that the preliminary objection raised by the Respondent against the hearing of the appeal is well founded and therefore succeeds. I also strike out the appeal with nothing more to add.
Appearances:
EDWIN B. KIZITO, ESQ. For Appellant(s)
JOHN OKEZIE, ESQ. For Respondent(s)
