MR. J. I. OJO v. MR. FRANKLINE ASUELIMHEN (2010)

MR. J. I. OJO v. MR. FRANKLINE ASUELIMHEN

(2010)LCN/3706(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 15th day of April, 2014

CA/B/183/2013

RATIO

INTERPRETATION: RULE GUIDING THE INTERPRETATION OF THE PROVISIONS OF THE CONSTITUTION

The law has been clearly well settled that in interpreting the provisions of the constitution, the judex, the court, must give effect to the object of the provision, hence no construction should be given which would defeat the purpose of the legislation. Therefore, where the words used in the constitutional provision is clear and unambiguous, there is no need to give them any other meaning than their ordinary natural and grammatical construction. Hence the court cannot import into the provision, that which was not intended by the framers of the constitutional provisions. Amadi V. INEC (2012) 2 SCNJ (Pt.1) 163 at 193 – 194; Nigerian Army V. Brig. General Maude Aminu Kano (2010) 1 SCNJ 250; FRN V. Osahon (2006) 5 NWLR (Pt.973) 301; Egolum V. Chief O. Obasanjo (1999) 5 SCNJ 92; Attor. Gen. Bendel State V. Attor. Gen. Federation (1982) 3 NCLR 1; Chief O. Awolowo V. Alhaji Shehu Shagari (1979) 6 – 9 SC 51. PER TOM SHAIBU YAKUBU, J.C.A.

JUSTICES

HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria

AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria

TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria

Between

MR. J. I. OJO Appellant(s)

AND

MR. FRANKLINE ASUELIMHEN
(Trading under the Name and Style of Stars Pools Limited) Respondent(s)

TOM SHAIBU YAKUBU, J.C.A. (Delivering The Lead Ruling): The appellant/applicant vide a motion on notice dated and filed on 16th May, 2013; prayed for an extension of time within which to seek leave to appeal against the ruling of R. I. Amaize, J., of the High Court of Edo State, sitting in Benin City, dated 9th November, 2012.

The appellant/applicant had filed a suit on the undefended list against the respondent, who did not file a memorandum of appearance nor a notice of intention to defend the suit No.B/709/2008. Judgment was consequently, entered for the appellant on 8th June, 2009 by Hon. Justice J.A. Oyakhirome, J., who found that the originating processes with respect to the suit on the undefended list was duly served on the respondent.

On the 16th April, 2012; the respondent’s car was attached by the bailiff of the Edo State High Court, in satisfaction of the judgment of 8th June, 2009, in favour of the appellant. Thereupon, the respondent filed an application at the Edo State High Court, presided over by Amaize, J., which prayed that the default judgment of 8th June, 2009, be set aside, on the ground that the originating processes with respect to the undefended suit aforementioned, were not served upon him. The said application was granted and in his ruling, the learned trial judge, ordered that the suit be re-listed for hearing on the merits. It is against this ruling that the appellant/applicant seeks leave of this court to appeal.

At the hearing of the application on 15th January, 2014; we wondered if the application was competent in view of the provisions of Section 241(2) (a) of the 1999 Constitution of the Federal Republic of Nigeria, as amended. Learned counsel to the parties were therefore directed to file written addresses and ventilate their views on the question raised by us.

Applicant’s written address was dated and filed on 30th January, 2014. In it, the issue for determination formulated therein is:
“Whether this appeal does not raise issues of pure and substantive law that will determine the rights of the parties that this Honourable Court may exercise discretion and determine on its merit in line with the Court of Appeal Practice Direction, 2013.”
The respondent’s written address dated 11th February, 2014 was filed on 12th February, 2014. The issue formulated for determination therein is:
“Whether the applicant has the right in law to appeal against the ruling of the trial judge dated 9th November, 2012 granting leave to the respondent to defend the suit.”

I adopt the issue formulated for determination by the respondent as it is in tandem with the feeling of the court when it ordered that learned counsel to the parties to file written addresses on the question raised by it at the hearing of the application first, on 15th January, 2014; before it was fully argued on 12th February, 2014.

Learned applicant’s counsel submitted that since the essence of a suit on the undefended list was a quick dispensation of justice to parties where the claim borders on recovery of debts or liquidated money demand, it was incumbent on the respondent to have filed a notice of intention to defend the suit in accordance with Order 23 rules 3 and 4 of the Bendel State High Court (Civil Procedure) Rules, 1988, then applicable to Edo State. And that since the respondent did not do so, judgment was rightly entered against him by Oyakhirome, J., on 8th June, 2009. He referred to Planwell V. Ogala (2003) 113 LRCN 2436; MC. Investment Ltd. Ltd Core Inv. & Capital Markets Ltd. (2012) 12 NWLR (Pt.1313) 1; Fortune Int. Bank Plc v. City Express Bank Ltd. (2012) 14 NWLR (Pt.1319) 86 at 105 – 106.

Furthermore, applicant’s learned counsel contended that the judgment of 8th June, 2009 being a final and not a default judgment, can only be set aside by an appellate court, on the authorities of Unity Bank Plc V. Olatunji (2013) 15 NWLR (pt.1378) 503; Mohammed Gidado V. Baba Abadullahi Daku (2006) All FWLR (Pt.292) 25.

Applicant’s learned counsel submitted that the application seeking leave to appeal against the ruling of 9th November, 2012 does not fall within the purview of Section 241(2) (a) of the 1999 Constitution.

On his own part, respondent’s learned counsel submitted that the right of appeal provided for under Section 241(2) of the 1999 Constitution is with respect to final decisions and not an order granting leave to a party to defend an action. Therefore, according to him, the applicant has no right of appeal against the ruling of the trial judge dated 9th November, 2012, pursuant to Section 241(2) of the same constitution.

Section 241(2) (a) of the 1999 Constitution of the Federal Republic of Nigeria as amended, provides, to wit:
“241(2) 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 on action.”

Now, the decision of Amaize, J., of 9th November, 2012 which the applicant intends to appeal against to this court, is unquestionably an order granting an unconditional leave to the respondent to defend the suit on the undefended list at the instance of the appellant/applicant. It is clear to me that by the clear and unambiguous provisions of Section 241(2)(a) of the 1999 Constitution, the applicant has no right of appeal against that ruling which permitted unconditionally the respondent, the leave to defend the suit against him. In other words, the ruling of Amaize, J., of 9th November, 2012 is unappealable. Bona V. ile Ltd. V. Asaba ile Mill Plc. (2013) 2 NWLR (Pt.1338) 357 at 375. The facts in that case were that the respondent sued the appellants under the undefended list procedure. It claimed N5,562,875.72k as debt owed by the appellants. It also claimed interest on that amount of money.

After the appellants were served with the respondent’s writ of summons together with the affidavit in support thereof, they filed a notice of intention to defend the suit. They also filed an affidavit in support of their notice. The respondent, in turn, filed a further affidavit in reply to the appellants’ affidavit.

In its ruling, the trial court considered the court processes filed by the parties and found that the appellants admitted they owed the respondent N1,415,050.01 and not N5,562,875.72 claimed by the respondent. However, the trial court held that the parties should present oral evidence in the suit. Consequently, the trial court granted leave to the appellants to defend the suit and it transferred the suit to the general cause list for hearing and determination.

After the ruling of the trial court, the respondent filed an application for judgment of N1,415,050.01k on the ground that the appellants admitted owing the amount and that the trial court had so found.

The trial court heard the respondent’s application and delivered a ruling in which it held that it could not reopen the case to grant the relief sought when pleadings had not been filed by the parties.

The respondent was dissatisfied with the refusal of the trial court to enter judgment for the sum of N1,415,050.01k in its favour. The respondent therefore appealed to the Court of Appeal. In a considered judgment, the Court of Appeal held that the appellants admitted they owed the respondent N1,415,050.01k and that the trial court was wrong when it did not enter judgment for that sum of money in favour of the respondent. Consequently the Court of Appeal allowed the respondent’s appeal and granted the relief sought by the respondent. The appellants, in turn, were dissatisfied with the judgment of the Court of Appeal and they appealed to the Supreme Court.

In determining the appeal, the Supreme Court considered the provisions of section 241(2) (a) of the Constitution of the Federal Republic of Nigeria, 1999.
The apex court held inter alia, per Ariwoola, JSC., that there was no right of appeal against the ruling of the trial judge which had transferred the suit from the undefended list to the general cause list for hearing and determination, that is, since the trial judge had granted leave unconditionally for the defence of the action in favour of the appellants therein, that decision was caught in the cobwebs of Section 241(2)(a) of the 1999 Constitution of the Federal Republic of Nigeria, and therefore unappealable.

Following the above decision of the apex court and applying the ratio decidendi thereof, to the instant case, I am satisfied that the decision of Amaize, J., dated 9th November, 2012 is unappealable.
In consequence, the application for leave to appeal against the said ruling is refused. It is incompetent. I strike it out accordingly.

HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have read the ruling just delivered by my learned brother, TOM SHAIBU YAKUBU, JCA and I am in complete agreement with his reasoning and conclusion. At the hearing of the application, this court raised the issue suo motu of whether the Applicant has the right in law to appeal against the ruling of the trial judge dated 9th November, 2012 granting leave to the Respondent to defend the Suit and transferring same to the general cause list in view of S.241(2) of the 1999 Constitution. The question has been answered without any doubt by the Supreme Court decision in Bona v. ile Ltd. v. Asaba ile Mill Plc (2013) 2 NWLR Pt.1338 Pg.357 at 375. The Supreme Court, in the above case which is almost on all fours with the facts of this case, reinforced the view that there is no right of appeal against a ruling transferring a case from the undefended list to the general cause list thereby giving the defendant unconditional leave to appeal. This application is thus incompetent and is hereby struck out.

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I have had the privilege of reading in draft the lead Ruling prepared by my learned brother, TOM SHAIBU YAKUBU, JCA. His lordship has more than adequately dealt with the sole issue for determination in the matter and I cannot but say that I am in complete agreement with the exposition of the law, reasoning and conclusions in the Ruling to that extent that I have nothing useful to add thereto.
Accordingly, I too, find the application for leave to appeal incompetent and hereby strike it out.

Appearances

O. I. Osunobu Esq.For Appellant

AND

S. A. Ifadah Esq.For Respondent