OCEANIC BANK INTERNATIONAL PLC V. CORPORETI SUPPORT SERVICES LIMITED & ANOR
(2011)LCN/5012(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 14th day of December, 2011
CA/L/426/11
RATIO
PLEADINGS: DUTY OF THE COURT WHERE THERE IS NO DEFENCE TO A PART OF A CLAIM
There is no doubt that the general statement of the law as expounded by the Appellant’s counsel is correct that once the language of the law is clear the court must give effect to it. Thus, ordinarily, where there, is no defence to a part of the claim, the Court is bound to enter judgment for the claimant for that part of the claim. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A
ADMISSION: POSITION OF THE LAW WHERE THERE IS ADMISSION IN THE PLEADING OF A PARTY
Also, there is no doubt that where there is admission in the pleadings of any party, that admission must be accepted without further proof. See Obmiami v. ACB (1992) 3 SCNJ 1. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A
SUMMARY JUDGMENT PROCEDURE: THE PURPOSE OF THE SUMMARY JUDGMENT PROCEDURE
There is no doubt that the raison d’etre of the summary judgment procedure under Or 11 of the Rules of Court is a stipulation in favour of creditors to deal with the speedy recovery of due debt when the matter is simple, uncomplicated, and where the evidence is largely documentary and uncontested.
Thus the circumstances under which the application for summary judgment can be brought under Or 11 r 1 is “where a claimant believes that there is no defence to his claim”. Therefore the procedure is applicable to enable a claimant obtain judgment without trial where the case is perfectly clear and unassailable. The procedure under or 11 is meant to enable a party obtain judgment summarily without the need for a full trial where the defendant cannot satisfy the court that it should be allowed to defend the action see UBA v. Jargaba (2007) 5 SC. Pg.5; Thor Ltd v. FCMB Ltd (2005) 14 NWLR Pt.946 Pg.696; Nischizawa v. Jethwani (1984) 12 SC. 234; Macauley v. Nal merchant Bank Ltd (1990) 4 NWLR Pt.144 Pg. 283. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A
SUMMARY JUDGMENT PROCEDURE: WHAT A CLAIMANT’S AFFIDAVIT IN SUPPORT OF THE MOTION FOR SUMMARY JUDGMENT MUST DISCLOSE
Or 11 r 1 states specifically that the claimant should state in the affidavit in support of the motion for summary judgment the grounds for the claimant’s belief that there is not defence to his claim. Therefore the affidavit must disclose explicit grounds for the belief and mere blanket depositions in an affidavit would not suffice. See Emuwa v. Consolidated Discounts Ltd (2001) 2 NWLR PT.697 Pg. 424. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A
SUMMARY JUDGMENT PROCEDURE: DUTY OF A DEFENDANT WHO INTENDS TO DEFEND THE ACTION UNDER A SUMMARY JUDGMENT PROCEDURE
The combined effect of Or 11. r 4 and Or. 15 r. 2 of the High Court rules is that a Defendant who intends to defend the action must within 42 days of service file a statement of defence, deposition of witnesses, exhibits to be used and written pddrgs.ses to court. The defence need not be water tight. See Macaulay V. NAL Merchant Bank (1990) 2 NSCC Pg.433. In this case the Respondents filed a statement of defence and a counter-affidavit in opposition to the motion for judgment. There were in my humble view sufficient facts given by the respondent to show that there is a bonafide defence. See Sanusi Bros v. Cotia CEISA (2000) 11 NWLR Pt.679 Pg.566. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
JURISDICTION: WHETHER A COURT LACKS THE JURISDICTION TO HEAR AN APPEAL UNLESS IT IS DERIVED FROM A CONSTITUTIONAL OR STATUTORY PROVISION
The right of appeal is created by statute or the Constitution. No court has jurisdiction to hear any appeal unless it is derived from a constitutional or statutory provision. See N.B.N. V. WEIDE Supra; See UGWU V. ATTORNEY GENERAL OF EAST CENTRAL STATE (1975) 6 SC 13, ADIGUN & ORS V. ATTONEY-GENERAL OF OYO STATE & ORS. (1987) 2 NWLR (pt. 55) pg. 197, AJOMALE V. YADUAT NO. 1 (1991) 5 NWLR Pt. 191 Pg.257 and ODOFIN & ORS. V. AGU & ORS. (1992) 3 NWLR Pt.229 Pg. 350. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
JOHN INYANG OKORO Justice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
Between
OCEANIC BANK INTERNATIONAL PLC Appellant(s)
AND
1. CORPORETI SUPPORT SERVICES LIMITED
2. MR. DARLINGTON KUTENHA Respondent(s)
HELEN MORONKEJI OGUNWUMIJU, J.C.A (Delivering the Leading Judgment): This is an interlocutory appeal against the ruling of Hon. Justice K.A. Jose of the High Court of Lagos State delivered on the 28th day of March, 2011. The facts which led to this appeal are as follows:
The Appellant being the claimant at the trial filed a claim for debt or liquidated money demand in the following terms.
(a) The sum of N426, 718,222.57 (Four Hundred and Twenty six Million Seen Hundred and Eighteen Thousand Two Hundred and Twenty two Naira Fifty Seven Kobo) from the Defendants jointly and severally being the sum outstanding as at 31st December 2009 in respect of the overdraft facilities granted by the claimants to the 1st defendant and guaranteed by the 2nd defendant.
(b) Interest on the above stated sum at the rate 25% per annum until judgment and 7% per annum thereafter.
(c) cost of the action.
The Respondents herein being Defendants at the trial court filed their statement of defence. The Respondents later filed a motion on notice to amend their statement of defence which included a counter-claim.
In the ruling appealed against, the trial court granted the respondent the prayer to file additional list of witness to include one Babajide Ajisafe a banking/Financial consultant and to amend the statement of defence to include a counter claim.
The gist of the Respondents’ defence is as contained in paragraphs 11 and 12 of the amended Statement of Defence and counter-claim. They are set out below:
“1. The defendants would contend at the trial that the combination of the wrong and illegal interest rates charged by the claimant as well as the application of very high exchange rates at various times by the claimant is what resulted in the ballooned sum of money the claimant alleges is owed by the defendants jointly and severally.
2. The defendants are prepared for the court to appoint an independent firm of chartered Accountants to reconcile the 1st defendants Account with the claimant to arrive at the exact sum owed to the claimant if any the defendants”.
In paragraphs 26 of the amended statement of defence and counter-claim, the Respondents counter-claimed as follows:
“The defendants counter-claim against the claimant for the sum of N157,383,909.87 (One Hundred and Fifty Seven million, Three Hundred and Eighty Three Thousand, Nine Hundred and Nine Naira, Eighty Seven Kobo) plus interest at the Prevailing Treasury Bills Rate and a penal charge of 2% per annum from August 31st 2010 to the date of [payment by the Bank in line with the sub-committee on Ethics and professionalism’s practice. The above sum represents the total of the excess, illegal and over charges debited to the 1st defendants account kept with the claimant”.
The Appellant had filed a motion for summary judgment pursuant to Order 11 Rule 1 of the Lagos State High Court Procedure Rules. The motion was moved before the original statement of defence and the motion for amendment of defence and counter-claim was filed. The Appellant moved the motion for summary judgment and the trial court held in respect of that application as follows:
“In my view these are issues that cannot be determined summarily as the court cannot at this stage determine whether or not wrong rates of interest that were applied and the court will not be in a position to know the exact indebtedness if any of the defendants, it would be necessary to have this matter go to trial where both sides can fully ventilate the averments in the statement of pleadings”
The appellant has filed this appeal against the ruling of the trial court. At the hearing of the appeal, Mr. Okpoko of counsel for the Appellant indicated that he had abandoned the other grounds of appeal and will argue only the lone issue formulated from ground 2.
Ground Two with its particulars is set out below:
The learned trial judge erred in law when he held:
“The application for summary judgment is refused and leave is therefore granted to the defendants to defend this suit”.
PARTICULARS OF ERROR
(a) The Defendants admitted part of the Claim.
(b) The Court failed to see that Order 11 Rule 5(3) of the High Court of Lagos State (Civil Procedure) Rules gives the court power to enter judgment for that part of the claim to which there is no defence and grant leave to defend that part to which there is defence.
(c) There is no ground in law to support the court’s decision to grant leave to defend the entire claim.
The issue distilled from the above ground is set out below:
“Whether having regards to the provisions of order 11 Rule 5(3) of the High Court of Lagos State (Civil Procedure) Rules 2004 the Appellant is not entitled to judgment for the part of the claim to which there is no defence”.
The respondents identified 3 issues for determination. However since the Appellant, the protagonist in this appeal has abandoned the other grounds and other issues in its Appellant’s brief, it would be superfluous to consider other issues argued by the respondent’s counsel save the response to ground 2 argued as issue 2 and couched in terms similar tot he appellant’s wordings.
On this sole issue already stated above the appellant submitted that order 11 Rule 5(3) of the High Court of Lagos Civil Procedure Rules 2001 provides categorically as follows:
“Where it appears to a Judge that the defendant has a good defence to part of the claim but no defence to other part of the claim, the judge may thereupon enter judgment for that part of the claim to which there is no defence and grant leave to defend that part to which”.
Mr. Okpoko argued that this is a case in which the Respondents, based on the report of the Bank and Financial consultant (one Mr. Babajide Ajisafe) appointed by them for the purpose of reconciling the account admitted owing the claimant herein the sum of N121,624,190.06 (One Hundred and Twenty one Million Six Hundred and Twenty Four Thousand One Hundred and Ninety Naira and Six Kobo). The said report is on pages 234 – 235 of the records of appeal. The Respondents in their statement of defence averred that they will rely on the said report at the trial of the suit.
Counsel argued on the application of the legal principle that once the language of the rules of court is clear, the court is duty bound to give it its ordinary and natural meaning, thus, where there is a defence to a part of the claim, the judge is duty bound to enter judgment for that part of the claim to which there is no defence and grant leave to defend that part to which there is a defence. He submitted that failure by the trial court to comply with the provisions of order 11 rule 5(3) makes the order for leave to defend the suit incompetent in law and prayed this court to set aside the ruling of the lower court. He cited Niki Tobi JSC in COTECNA INT. LTD. V. M.B. PLC (2006) 9 NWLR Pt.985 Pg.275 at Pg.290, ATIKU ABUBAKAR V. A.G. FEDERATION (2007) 3 NWLR Pt.1022 Pt.601 at 642; NNABUDE V. G.N.G. (W/A) LTD (2010) 15 NWLR Pt.1216 Pg.365 at 372; OGBEBOR V. DANJUMA (2003) 15 NWLR Pt.843 Pg.403 at 411; ADEWUMI AND ANOR V. THE A.G. EKITI STATE AND ORS. (2002) 2 NWLR Pt.751 Pg.474 at 507.
Learned Respondents’ counsel Mr. Kudaya submitted in reply that the Appellant was in error to assume that the Honourable court had no discretion whether to grant its prayer judgment in accordance with order 11, Rule 5(3) of the High Court of Lagos State (Civil procedure) Rules 2004. By the very essence of the grant of the leave to defend the action, the Honourable court cannot grant the Appellant’s prayer for summary Judgment and granting leave to the Defendants to defend the suit in view of the Statement of Defence and counter-claim filed by the Respondents. By virtue of Section (6) (a) and (b) 1999 Constitution of the Federal Republic of Nigeria, the Learned Judge at the Lower Court has the, unfettered powers to grant the leave to the Respondents to defend the entire claim of the Appellant in view of the Defence and counter- claim filed by the Respondent as graciously granted by the Honourable Court.
Counsel argued that the wording of order 11 Rule 5 (3) shows that the trial court has wide discretion to grant the motion for judgment or not. Counsel submitted that an Appellate court would ordinarily not interfere with a trial court’s exercise of discretion except in exceptional circumstances where same is found not to have been exercised judicially and judiciously. He argued that the Appellant has not been able to establish that the discretion was exercised arbitrarily or illegally. Counsel cited WILLIAMS v. HOPE RISING (1982) 2 SC 145; UBN PLC v. LUOBAI NIG. LTD (2008) 2 NWLR Pt.1071 Pg.257 at 281.
There is no doubt that the general statement of the law as expounded by the Appellant’s counsel is correct that once the language of the law is clear the court must give effect to it. Thus, ordinarily, where there, is no defence to a part of the claim, the Court is bound to enter judgment for the claimant for that part of the claim. Also, there is no doubt that where there is admission in the pleadings of any party, that admission must be accepted without further proof.
See Obmiami v. ACB (1992) 3 SCNJ 1. Also, the decision law is that admission by a party of part of the claim of the adverse party entitles the court to grant part of the claim admitted in any event to the adverse party. See Jeric Nig. Ltd v. Union Bank Plc (2001) 12 SCNJ 184.
Let us however look at the facts and circumstances of this case. Afterall, facts are the fountainhead of law. There is no doubt that the raison d’etre of the summary judgment procedure under Or 11 of the Rules of Court is a stipulation in favour of creditors to deal with the speedy recovery of due debt when the matter is simple, uncomplicated, and where the evidence is largely documentary and uncontested.
Thus the circumstances under which the application for summary judgment can be brought under Or 11 r 1 is “where a claimant believes that there is no defence to his claim”. Therefore the procedure is applicable to enable a claimant obtain judgment without trial where the case is perfectly clear and unassailable. The procedure under or 11 is meant to enable a party obtain judgment summarily without the need for a full trial where the defendant cannot satisfy the court that it should be allowed to defend the action see UBA v. Jargaba (2007) 5 SC. Pg.5; Thor Ltd v. FCMB Ltd (2005) 14 NWLR Pt.946 Pg.696; Nischizawa v. Jethwani (1984) 12 SC. 234; Macauley v. Nal merchant Bank Ltd (1990) 4 NWLR Pt.144 Pg. 283.
The application for summary judgment is supported by an affidavit sworn to by one Kayode Michael a Litigation Clerk in the chambers of Counsel to the appellant.
The facts contained in the affidavit are briefly that the Appellant is a bank which granted multiple credit facilities to the 1st Respondent in the sums of $5,000,000.00 (Five Million Dollars), N500,000,000.00 (Five Hundred Million Naira) and N100,000,000.00 (One Hundred Million Naira) The terms of the facility were contained in the offer letter dated February 26th 2008 which was as Exhibit A to the affidavit and the facility was also secured by the Personal Guarantee of the 2nd Respondent (Exhibit B). The 1st Respondent also provided a Board resolution authorizing the facility (Exhibit C). Based on the respondents’ request for enhancement of the facility, the Appellant offered the 1st Respondent additional credit facility in the sum of N90,000,000.00 (Ninety Million Naira) vide its offer of 28th July 2008 (Exhibit D) which was also secured inter alia by the Personal guarantee of the 2nd Respondent (Exhibit E).
The Respondents are said to have failed to liquidate these facilities in spite of repeated demands. (A demand letter dated August 28 2009 was attached as Exhibit F). The total amount outstanding on the facilities as at 31st December 2009 is 426,718,222.57 (Four Hundred and Twenty-Six Million Seven Hundred Eighteen Thousand, Two Hundred and Twenty Two Naira and Fifty Seven Kobo) and the statement of account of the 1st Respondent was attached as Exhibit G.
The Appellant also instructed its Solicitors to write to demand for payment and the Solicitor’s letter was attached as Exhibit H.”
The Respondents filed a statement of defence and a counter affidavit in Respect of the application for summary judgment. In the two documents the Respondents admitted taking facilities from the Appellant but stated that the Appellant had been applying illegal, oppressive and punitive charges in violation of Central Bank of Nigeria (CBN) guidelines and regulations which charges the Respondent claim they have protested through letters written to the appellant vide Exhibit MN1 and MN2 to the Counter affidavit. The Respondents also averred that they had forwarded a schedule of overcharged interest for the period of July 2009 to January 2010 to the Appellant in the sum of N26,755,718.49 (Exhibit MN4) for verification and correction but to no avail.
Another schedule of overcharge on the second facility for the period of July 2008 to June 2009 in the sum of N70,309,773.19 was attached as Exhibit MN5 to the counter affidavit.
The Respondents averred that the Appellant applied higher exchange rates than the ones in the Risk Assessment Report of the Appellant and an instance when the rate of 147.50 to a dollar was applied instead of N116.73 allegedly resulting in a difference of N39,204,594.49 was cited. It was also stated that the average rate of rate of interest on the two facilities ranged between 23% and 17.5% but the appellant charged illegal and punitive rate of 22.5.% and 34.5% The Respondents said they were not refusing to meet their obligations but could not to same because the appellant had refused to reconcile the 1st respondent’s accounts and that they had engaged a consultant to review and reconcile the accounts of the 1st respondent.
It is apt to note that the motion for summary judgment was filed with the writ on 16/2/2010. The original Statement of Defence was filed on 12/5/2010.
On 27/10/2010, the respondents filed a motion to amend their statement of Defence and filed a list of additional witness. Or 11 r 1 states specifically that the claimant should state in the affidavit in support of the motion for summary judgment the grounds for the claimant’s belief that there is not defence to his claim. Therefore the affidavit must disclose explicit grounds for the belief and mere blanket depositions in an affidavit would not suffice. See Emuwa v. Consolidated Discounts Ltd (2001) 2 NWLR PT.697 Pg. 424.
The combined effect of Or 11. r 4 and Or. 15 r. 2 of the High Court rules is that a Defendant who intends to defend the action must with in 42 days of service file a statement of defence, deposition of witnesses, exhibits to be used and written pddrgs.ses to court. The defence need not be water tight. See Macaulay V. NAL Merchant Bank (1990) 2 NSCC Pg.433. In this case the Respondents filed a statement of defence and a counter-affidavit in opposition to the motion for judgment. There were in my humble view sufficient facts given by the respondent to show that there is a bonafide defence. See Sanusi Bros v. Cotia CEISA (2000) 11 NWLR Pt.679 Pg.566. The motion for judgment was argued on 11/10/2010 more than a month after the defendant filed the motion for amendment of the defence and counter-claim but before it was argued.
I share the view of the learned trial judge that as at the time the motion for judgment was argued, the averments in the respondents’ original statement of defence raised allegations of overcharging of interest and application of wrong exchange rates. The respondents also averred that they engaged a forensic expert who made findings of said overcharges and other discrepancies in the financial transactions between the parties.
The, trial judge was obliged to consider, the defence put up by the Respondent in compliance with or 11 r 4. The complaint of the Appellant is that the trial Court did not apply Or 11 r 5(3) to enter judgment for the claimant on that part of the claim to which there is no defence. I agree with the learned trial Judge that the defence raised by the Respondents that there cannot be ascertained a specific sum of indebtedness without a reconciliation of accounts is worthy of consideration. What was proferred was a tentative figure and the learned trial Judge was right to hold that no decision to force payment of an admitted sum could be made without hearing evidence.
There is a point I must make, here to the effect that the aspect of the learned trial Judges reasoning that because her ladyship had taken the application to amend the statement of defence, she could not use the materials in the latter for the former is with, greatest respect an undue reliance on technicality. In so far as the court is sized of the facts in both applications on the day the composite ruling on the different applications were given, I am a the humble opinion that the learned trial judge should not close its eyes to the processes in the court’s file which were already in, the application having been taken before the ruling was delivered. My opinion expressed above is mere obiter for reasons I will give hereinafter.
This court raised the issue of whether it has jurisdiction to hear this matter in view of the decision of the supreme court in NBN v. WEIDE (1996) 8 NWLR Pt.465 Pg.150 where the provisions of S.220(2) (a) of the 1979 constitution which is in pari material with section 241(2)(a) of the 1999 Constitution was interpreted vis a vis the provisions of or 10 of the Lagos High Court Rules 1972 which is essentially the same as or 11 of the 2004 rules of Lagos State High Court. Section 241 (2) (a) of the 1999 Constitution provides as follows:
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 an action”.
This court raised the issue of jurisdiction suo motu and counsel were asked to come and address the court on whether this court has jurisdiction to entertain this appeal in view of Section 241(2) of the 1999 Constitution and the degisior6of the Supreme Court in N.B.N. V. WEIDE (1995) 8 NWLR Pt. 465 pg. 150. Learned appellant’s counsel argued during the re-address that the case of N.B.N. v. WEIDE and Section 241 (2) (a) of the 1999 Constitution does not apply to the facts of this case. He argued that there was an admission of part of the claim pursuant to order 11 rule 5(3). He argued that MOSHESHE v. GENERAL MERCHANTS (1987) 2 NWLR Pt.55 pg.110 had jettisoned the case of N.B.N v. WEIDE.
Learned Respondents counsel in reply urged the court to hold that it lacked jurisdiction to entertain this appeal based on the case of N.B.N v. WEIDE Supra and section 241 (2) of the 1999 Constitution.
He further argued that the motion filed by the appellant was a motion for judgment not a motion on admission which are different. The admission of the respondent was not complete until the appellant had agreed with the respondents’ independent report which they did not. Counsel submitted that no provision of a rule of court can supercede the provisions of section 1 (3) of the 1999 Constitution. He argued that the ruling was based on order 11 rule 1 and not order 11 rule 5 (3).
There is no doubt in my mind that the decision appealed against comes within the provisions of Section 241 (2) (a) of the 1999 Constitution because the application for summary judgment was refused and unconditional leave was granted to the Respondents to defend the suit under order 11 rule 5 (1) of the state Rules. The right of appeal is created by statute or the Constitution. No court has jurisdiction to hear any appeal unless it is derived from a constitutional or statutory provision. See N.B.N. V. WEIDE Supra; See UGWU V. ATTORNEY GENERAL OF EAST CENTRAL STATE (1975) 6 SC 13, ADIGUN & ORS V. ATTONEY-GENERAL OF OYO STATE & ORS. (1987) 2 NWLR (pt. 55) pg. 197, AJOMALE V. YADUAT NO. 1 (1991) 5 NWLR Pt. 191 Pg.257 and ODOFIN & ORS. V. AGU & ORS. (1992) 3 NWLR Pt.229 Pg. 350.
In N.B.N. V. WEIDE Supra all the esteemed Justices of the Supreme Court who sat on the appeal agreed that the right of appeal conferred by Section 221 (1) of the 1979 Constitution now Section 242 of the 1999 Constitution is subject to the right of appeal conferred by Section 220 (1) now 240 (1) of the 1999 Constitution and the denial of the right of appeal provided in Section 220 (2) (a) now Section 241 (2)(a) 1999 of the 1999 Constitution. The right of appeal or denial of a right of appeal must be provided for in the clearest possible language since the conferment of a right of appeal is a curtailment of the jurisdiction of the court whose decision is being appealed from, and an extension of the jurisdiction of the court to which the appeal lies. It is thus clear that no appeal lies to this court in respect of a decision of the trial court to grant unconditional leave to defend an action. See ISULIGHT NIG. LTD. V. JACKSON (2005) 11 NWLR Pt. 937 Pg. 531 at pg. 654, EKULO FARMS LTD. & ANOR V. UNION BANK OF NIGERIA PLC (2006) 4 SCNJ 164.
There is a clear distinction between the facts of this case and the case of ASABA ILE MILL PLC V. BONA V. ILE LTD & ANOR (2007) 1 NWLR (pt. 1015) Pg. 259 at Pg. 280-281. In that case, which was on the undefended list procedure of the Delta State High Court Rules, the Appellant filed a suit at the High Court of Delta State claiming a sum of indebtedness against the Respondents and interest on the entire sum. The Respondents filed notice of intention to defend and the trial court after hearing parties transferred the suit from the undefended list to the general cause list for hearing. In the affidavit in support of its notice to defend, the Respondent had admitted a portion of the claim. The Appellant thereafter filed a motion on notice for judgment under order 30 rule 3 (1) of the High Court Rules of Bendel State (1983) applicable in Delta State praying the court to enter judgment in the admitted sum. The trial court dismissed the motion for judgment and the Appellant appealed. This court allowed the appeal on the basis of the admission of a specific amount of indebtedness made by the Respondents in its notice to defend. This court was categorical that even though the Appellant had no right of appeal against the ruling granting leave to defend the suit and transferring same to the general cause list, by virtue of Section 241 (2) (a) of the Constitution, this court can entertain an appeal against the later ruling refusing to give judgment on the admitted sum. Thus it would have been different if the Appellant was appealing against a refusal to give judgment under Order 19 Rules 4 of the Lagos State Rules. Order 19 Rule 4 states as follows:-
“4. The Judge may, on application, at a pre-trial conference or at any other stage of the proceedings where admissions of facts have been made, either on the pleadings or otherwise, make such orders or give such judgment as upon such admissions a party may be entitled to, without waiting for the determination of any other question between the parties.”
The Applicant brought a motion under Order 11 Rule 1 and not under Order 11 Rule 5 (3). Thus the court could exercise its discretion under Order 11 Rule 5 (1) to refuse the Applicant and grant unconditional leave.
In sum, this court is constitutionally barred from considering any appeal which challenges the trial court’s order granting leave for the Respondents to defend the suit. The constitution has thus recognised the fact that the trial court must determine the right to be heard by a Defendant and such exercise of discretion by the trial Judge should not be subject or consideration on appeal by a superior court considering the constitutional provision of the right to fair hearing.
Thus there is a distinction between Order 11 Rule 5 (3) where the claimant believes the Defendant has no defence to a part of a claim and the Judge agrees with that stand and enters judgment as opposed to Order 19 Rule 4 which deals with where there is an admission by the Defendant. In the first scenario the learned trial Judge may refuse to grant leave to defend the suit. In the second one issue of leave to defend does not arise. All that is required is for the claimant to prove unequivocal admission on the part of the Defendant and he is given judgment in the liquidated sum. Where judgment is refused on an application under Order 19 Rule 4, an appeal will lie.
Suffice it to say that no appeal can lie to this court in the circumstances.
This appeal was heard on the merit and would therefore be dismissed.
N=30,000.00 costs to the Respondents against the Appellant.
JOHN INYANG OKORO, J.C.A.: I was obliged in advance a copy of the Judgment of my learned brother, Ogunwumiju, JCA, just delivered and I agree that this appeal lacks merit and ought to be dismissed. My learned brother has ably dealt with the salient issue raised suo motu by this court for which the parties were recalled to address the court. I shall add a few words of mine.
Section 241(2)(a) of the 1999 Constitution of the Federal Republic of Nigeria states:-
“241(2) Nothing in this Section shall confer any right of appeal –
from a decision of the Federal High court or any High court granting unconditional leave to defend an action”.
The above constitutional provision is clear and unambiguous and as such should be given effect as it is. The intendment of that provision is to take away any right of appeal from a decision of the Federal High court or a High Court of a State granting unconditional leave to defend an action. Right of appeal is usually granted by the constitution or the enabling statute and no court is allowed to assume Jurisdiction in any matter which the law does not confer same, moreso, where the constitution or statute expressly bars the parties from exercising any right of appeal. See N.B.N. V. Weide (1996) 1 N.W.L.R. (pt.465) 150.
It is my view that the Appellant herein has no right of appeal against the decision of the court below which granted leave to the Respondents to defend the suit. This right is clearly taken away by Section 241 (2)(a) of the 1999 Constitution of Nigeria. It follows that this court lacks the requisite Jurisdiction to hear this appeal. In the circumstance, I agree with my learned brother, Ogunwumiju JCA, that this appeal is unmeritorious and I also join in dismissing it. I abide by alt the consequential orders made therein, including order as to costs.
RITA NOSAKHARE PEMU, J.C.A.: I have had a preview of the judgment just delivered by my learned brother, H.M. OGUNWUMIJU JCA and I agree with the reasoning and conclusion. I adopt same as mine, as well as the consequential order made.
Appearances
Emeka Okpolo EsqFor Appellant
AND
George O. Kudaya EsqFor Respondent
