UMMAH MICROFINANCE BANK NIGERIA LIMITED v. AHMED TIJJANI ABUBAKAR & ANOR
(2019)LCN/13814(CA)
In The Court of Appeal of Nigeria
On Friday, the 18th day of October, 2019
CA/YL/122/2017
JUSTICES
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria
ABDULLAHI MAHMUD BAYERO Justice of The Court of Appeal of Nigeria
Between
UMMAH MICROFINANCE BANK NIG. LTD – Appellant(s)
AND
1. AHMED TIJJANI ABUBAKAR
2. ALH. ABUBAKAR ABDULKADIR – Respondent(s)
RATIO
WHETHER OR NOT THE LEAVE OF THE LOWER COURT IS REQUIRED TO BE SOUGHT AND OBTAINED BEFORE AN APPEAL AGAINST AN INTERLOCUTORY APPEAL IS FILED
On the other hand, the leave of the lower Court or this Court is required to be sought and obtained before an appeal against an interlocutory appeal could be filed. There is nothing on record to show that leave was sought and obtained by the appellant before the Notice of Appeal was filed. See, EKEMEZIE VS. IFEANACHO & ORS (2019) LPELR ? 46518 (SC) PP. 13 ? 28, Paragraphs E-F and DESTRA INVESTMENTS LTD VS. FRN & ANOR (2018) LPELR ? 43883 (SC) Page 8, Paragraphs D-F. PER UWA, J.C.A.
JAMES SHEHU ABIRIYI, J.C.A. (Delivering the Leading Judgment): This appeal is against the ruling delivered on 26th April, 2017 in the High Court of Adamawa State sitting at Yola.
In that Court, the Appellant was the Plaintiff/Applicant while the Respondents were Defendants/Respondents.
By a writ of summons and statement of claim, the Appellant claimed against the Respondents for the following:
?a. The sum of Six Million, One Hundred and Seventy-Nine Thousand One Hundred and Twelve Naira Ninety Kobo (N6,179,112.90 being money due and payable by the Defendants to the Plaintiff as principal, interest on a loan facility granted by the Plaintiff to the Defendant.
b.10% interest on the sum claim (sic) from the date of judgment until final payment.
c.An order of this honourable Court directing that the 1st Defendant?s property covered by Grant of Right of Occupancy No. ADS/14975 and situate at No. 37 Chiroma Street, Yola be sold by the Plaintiff to recover the debt owed by the 1st Defendant.
d. Cost of this suit.
?Before the suit was scheduled for hearing, the Appellant brought a motion on notice
pursuant to Order 22 Rule 1 of the Adamawa State High Court (Civil Procedure) Rule 2013 praying for the following:
?1. That summary judgment be entered for the Plaintiff/Applicant against the Defendant/Respondent in terms of the Prayers contained in the statement of claim of the Plaintiff/Applicant.
3. Any other order or orders as the honourable Court may deem fit to make in the circumstances.?
The Respondents opposed the Application for summary judgment. To this end they filed a counter affidavit in opposition.
After considering the affidavit evidence of both parties and written addresses of learned counsel for the parties, the Court below did not enter summary judgment. Rather it transferred the suit to the general cause list from the undefended list.
The Appellant was dissatisfied and therefore appealed to this Court against the ruling by a notice of appeal dated and filed 8th May, 2017. The notice of appeal contains one ground of appeal. From the ground of appeal, the Appellant presented the following issue for determination:
Whether having regard to the finding of facts of the trial Court, the trial Court was
right in transferring the appellant?s suit to the general cause list.
?
The Respondents on their part submitted the following issue for determination even though they filed a notice of preliminary objection:
Whether from Respondent?s counter-affidavit to the application for summary judgment and the joint statement of defence filed before the trial Court, the Respondents have disclosed defence on the merit to the Appellant?s application for summary judgment to justify transferring the matter to the general cause list. (Distilled from ground 1 of the grounds of Appeal).
The Respondents? preliminary objection is hinged upon the following grounds:
1. The Appellant?s notice of appeal filed on the 8th of May, 2017 with Appeal No: CA/YL/122/2017 is incompetent as same was filed against the ruling of the High Court of Justice, Adamawa State transferring the Appellant?s case to the general cause list and granting unconditional leave to the Respondent to defend the Appellant?s action.
2. Ground one of the Appellant?s notice of appeal is incompetent as same do (sic) not arise from the ruling of the High
Court of Justice, Adamawa State appealed against.
3. Ground one of the Appellant?s notice of appeal which is the only ground of appeal is a ground of mixed law and fact and leave of the trial Court or this Court was not sought and obtained before the notice of appeal was filed.
Arguing the notice of preliminary objection, learned counsel for the Respondents submitted that the right of appeal is created by statute or the Constitution and no Court has jurisdiction to hear any appeal unless it is derived from a statutory provision. It was submitted that the right of appeal to the Court of Appeal and circumstances under which such right can be exercised are basically provided for in the 1999 Constitution (as amended). The Court was referred to Section 241(1) of the Constitution (as amended) which has stated the circumstances in which an appeal shall lie from decisions of the Federal High Court and High Court to the Court of Appeal.
?
It was submitted that the right of appeal is not absolute. The Court was referred to Section 241(2) (a) of the 1999 Constitution. It was submitted that by virtue of this proviso in Section 241 (2) (a) of the Constitution
an order of a High Court granting an unconditional leave to a defendant to defend an action is not appealable.
The instant appeal, it was argued, is against a ruling of the High Court, Adamawa State transferring a case to the general cause list and granting an unconditional leave to the Respondents to defend the case.
It was submitted that transferring the case to general cause list is akin to an order granting unconditional leave to the Respondents to defend the action. The Court was referred to Odu v. Agbor-Hemeson (2004) All FWLR (Pt. 188) 935 at 952 and Order 22 Rule 5 (1) of the Adamawa State High Court (Civil Procedure) Rules, 2013, Bona ile Ltd V. Asaba ile Mill Plc (2013) All FWLR (Pt. 669) 995 at 1000-1002, National Bank of Nigeria Ltd V. Weide & Co. Nig. Ltd (1999) 8 NWLR (Pt. 465) 150 and Afro Shelters Ltd V. FAAN (2004) All FWLR (Pt. 208) 941 at 943 ? 944.
This Court, it was submitted, lacks the jurisdiction to entertain the appeal.
Furthermore, it was submitted that the only ground of appeal contained in the notice of appeal does not arise from the ruling of the Court below. The Court below, it
was submitted, nowhere held that it solely based its reason for transferring the matter to the general cause list on the ground that the Appellant had once used an unlawful means to recover the debt. The Court was referred to Ajobena v. Mujakperuo (2015) All FWLR (Pt. 779) 1005 at 1018. It was submitted that since the only ground of appeal does not arise from the ruling of the Court below, the appeal is incompetent and should be struck out.
The only ground of appeal, it was submitted, is a ground of mixed law and fact and leave of the Court below or this Court ought to have been sought before appealing. Leave of Court having not been sought, the appeal is incompetent and should be struck out, was submitted.
In his reply, learned counsel for the Appellant submitted that the crux of the appeal is not about the transfer of the Appellant?s suit to the general cause list. According to learned counsel for the Appellant the Court below having found that the Respondents were owing the Appellant, ought to have entered judgment in its favour. It was submitted that the Court below did not make a finding that the Respondents had disclosed a defence to the
suit. It was only when such finding was made that it could be said that the Appellants appeal is against an unconditional leave to appeal. Learned counsel for the Appellant maintained that the crux of the appeal is the failure of the Court below to enter judgment in favour of the Appellant in the light of its finding.
Learned counsel for the Appellant submitted that the ground of appeal related to and directly emanates from the judgment of the trial Court. That is the recovery or payment of the debt. It was further submitted that the ground of appeal is not a ground of mixed law and fact as contended by learned counsel for the Respondents.
It was submitted that a careful perusal of the ground of appeal will reveal that it relates to the misapplication of the law to the facts already admitted. That the facts admitted are the debt and the outstanding balance. That the Appellant?s ground of appeal did not question any of the findings of the lower Court. That it only questions the conclusion or decision reached from the admitted facts. Such ground, it was submitted, is a ground of law. The court was referred Njemanze V. Njemanze(2013) Vol. 217 LRCN
at 24. It was submitted that the ground of appeal that questions misapplication of law to the facts already admitted is a ground of law.
The Court was urged to so hold.
The issues presented by both parties reproduced elsewhere in this judgment are identical. I will if need be determine the appeal on the issue presented by the Appellant.
Arguing the appeal, learned counsel for the Appellant submitted that it is clear from the findings of fact of the trial Court that the Respondents had admitted the loan and that out of N6,179,112.90 they paid a total of N1,860,000.00. Despite this finding, the trial Court nevertheless transferred the suit to the general cause list simply because some of the payments were made at the police CID Yola or they were made through ?different institution.?
It was submitted that in the circumstances of this case, the trial Court erred in law when it transferred the case to the general cause list.
?
It was submitted that in summary judgment proceedings a suit can only be transferred to the general cause list when there is a defence on the merit. In the instant matter, there was no defence or dispute as
to the loan granted to the Respondent by the Appellant, it was submitted. That it was the finding of the trial Court that the 1st Respondent paid a total sum of N1,860,000.00 out of N6,179,112.90.
It was submitted that from the findings of facts of the trial Court, the Appellant ought to have had judgment in its favour.
The Court was referred to Okoli V. Morecab Finance (Nig.) Ltd (2007) All FWLR (Pt. 369) 1164 at 1181 A-B, Imoniyame Holding Ltd & Anor V. Soneb Enterprise Ltd (2010) All FWLR (Pt. 517) 527, Cotia Commercio Exportacoa E, Importacao S.A. V. Sanusi Brothers (Nig.) Ltd (2000) 79 LRCN 2381.
Learned counsel for the Respondents submitted that in an application for summary judgment, the primary duty of the Court is to ascertain whether there are facts sufficient to entitle the defendant to defend the action. This, the Court does by looking at all the processes filed. The Court was referred to Macgregor Associates V. N.M.B. (1996) 2 SCNJ 72 and Order 22 Rules 4 and 5 (1) of the Adamawa State High Court (Civil Procedure) Rules 2013.
It was submitted that upon a perusal of the processes filed by the Respondents, it was clear that
the Respondents had a good defence on the merit to the Appellant?s action. Therefore the trial Court was on sound legal footing when it granted the Respondents leave to defend the suit.
It was contended that the 1st Respondent rebutted the Appellant?s assertion that the 1st Respondent?s indebtedness stood at N6,179,112.90.
It was submitted that in a summary judgment procedure once the defendant shows in his counter affidavit that he has a defence on the merit or there is a serious conflict in the affidavit of the parties or the affidavit raises an issue that is triable, he will be granted leave to defend the suit. The defendant, it was submitted, need not show a complete defence. It suffices if the defence set up shows that there is a triable issue or that for some other reasons there ought to be a trial. The Court was referred to Nkwo Market Community Bank (Nig.) Ltd V. Paul Ejike Uwabuchi Obi (2010) 4-7 SC (Pt. 11) 30.
It was further submitted that where there is conflict in the affidavit evidence of the parties oral evidence is the only way through which the conflict can be resolved. Thus it was mandatory to transfer the
suit to the general cause list. The Court was referred again referred to Nkwo Market Community Bank (Nig.) Ltd V. Obi (Supra) at page 30.
It was submitted that from affidavit evidence before the trial Court there are serious conflicts as to the indebtedness of the 1st Respondent to the Appellant. The Appellant, it was argued, refused or failed to admit/acknowledge the fact that the 1st Respondent made payments to it at the Criminal Investigation Department, Yola and Upper Area Court No. 3 Yola.
It was further argued that the amount charged as interest contravened the interest agreed upon by the parties. It was contended that the Appellant having failed to comply with the terms of the agreement for the loan facility and the letter of guarantee, there was an issue which ought to be tried. Therefore, the respondents are entitled to defend the suit.
It was further argued that in an application for summary judgment where documents are put forward by the parties which require explanation, and which explanation may likely tilt the scale of justice in favour of the defendant, the temptation to shut the defendant out must be resisted. The Court was
referred to Okanbah Ltd V. Sule (1990) 11-12 SC 47.
The documents put up before the trial Court, it was submitted, require some sort of explanations from the parties. As such the Respondents were entitled to leave to defend the Appellant?s suit as rightly granted by the learned trial Judge.
It was further submitted that the grant of leave to a defendant to defend an action is discretionary and such discretion once exercised should not be easily interfered with by a superior Court unless there is justification for doing so. The Court was referred to Federal Military Government V. Sani (1990) 7 SC (Pt. 11) 89.
Section 241 (2) (a) of the 1999 Constitution (as amended) provides as follows:
?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 uncondition leave to defend an action.”
By virtue of this provision of the 1999 Constitution FRN (as amended) there is no right of appeal against the order of the Court below transferring the matter from the undefended list to the general cause list by whatever way or means. The only option open to
the parties was to proceed to file their pleadings. See Bona v. Asaba ile Mill Plc (2013) All FWLR (Pt. 669) 995 at 1015 per Ariwoola JSC.
Learned counsel for the Appellant contends that the appeal is not about the transfer of the suit to the general cause list. I do not agree. As the Appellant is complaining about the failure or refusal to enter judgment in its favour, it goes without saying that it is complaining about the transfer of the suit to the general cause list. As it is complaining about the refusal to enter judgment in its favour and transferring of the matter to the general cause list it is not permitted by the Constitution to appeal. The only option open to it is to proceed to file pleadings. The order transferring the suit to the general cause list is not appealable as rightly submitted by learned counsel for the Respondents. On this ground the appeal should be struck out for being incompetent.
?
A ground of appeal must relate to the judgment complained against. Where this is not so, the ground of appeal should be struck out. See Odom & Ors v. The Peoples Democratic Party & Ors (2015) LPELR 24351 and
Omisore & Anor V. Aregbesola (2015) LPELR ? 24803. The only ground of appeal and the particulars reproduced immediately hereunder read thus:
?GROUND 1
The learned trial judge erred in law when he refused appellant?s application for summary judgment solely on the ground that the appellant had once used an unlawful means to recover its debt
PARTICULARS OF ERROR
(a) From its ruling the trial Court ruled that the respondents are indebted to the appellant.
(b) There is finding of fact made by trial Court that the respondent has admitted owing the appellant and has even made some payment.
(c) Allegation of alleged use of unlawful means to recover the debt does not constitute a defence on the merit.”
The portion of the judgment or ruling of the Court below complained of in my view is the penultimate paragraph of judgment/ruling which reproduced immediately hereunder reads as follows:
?This shows that the 1st defendant had been repaying the loan through different institutions. For this reason, the matter had now turnout to be contentious, as such the dispute could not be conveniently settled through summary trial.”
Learned counsel for the Appellant contended that the ground of appeal is directly from the judgment/ruling appealed against. I am afraid I have to reject this argument. Nowhere in the judgment did the Court below state that the Appellant had used an unlawful means to recover its debt. It is therefore my opinion that the only ground of appeal as submitted by the Respondents? counsel did not arise from the judgment/ruling of the Court below. It should therefore be struck out. On this ground too the appeal should be struck out.
As the only ground of appeal is not from the decision of the Court below the question whether or not leave of the Court below or this Court ought to have been sought and obtained before appealing does not arise.
By virtue of Section 242 of the 1999 Constitution FRN (as amended) where an appeal is from an interlocutory decision of the High Court and the ground of appeal is not on law alone, a party must obtain the leave of either the High Court or the Court of Appeal. As the Appellant is questioning the exercise of discretion by the Court below on whether the suit be transferred to the general cause list or
not, and since the decision is an interlocutory decision which was not on law alone, the Appellant could not approach this Court as of right.
Having not sought the leave of either the Court below or this Court, the appeal is incompetent. On this ground too it should be struck out.
As the only option open to the parties following the order of the Court below transferring the suit to the general cause list is for the parties to file and exchange pleadings for a full blown trial, it is not open to this Court to consider the only issue in the appeal.
The preliminary objection is upheld. The appeal is hereby struck out for being incompetent.
Parties shall bear their respective costs.
CHIDI NWAOMA UWA, J.C.A.: I read before now the judgment delivered by my learned brother, JAMES SHEHU ABIRIYI, JCA.
I agree with his reasoning and conclusion arrived at in striking out the appeal for being incompetent.
?I would chip in a few words in respect of the nature of the decision appealed against. The Ruling of the High Court of Adamawa State, sitting in Yola, delivered on 26/4/17 which gave rise to this appeal is an
interlocutory decision which is not appealable under Section 241 (2)(a) of the 1999 Constitution of the Federal Republic of Nigeria. On the other hand, the leave of the lower Court or this Court is required to be sought and obtained before an appeal against an interlocutory appeal could be filed. There is nothing on record to show that leave was sought and obtained by the appellant before the Notice of Appeal was filed. See, EKEMEZIE VS. IFEANACHO & ORS (2019) LPELR ? 46518 (SC) PP. 13 ? 28, Paragraphs E-F and DESTRA INVESTMENTS LTD VS. FRN & ANOR (2018) LPELR ? 43883 (SC) Page 8, Paragraphs D-F. For these reasons and the fuller reasons in the leading judgment, I also strike out the appeal for being incompetent and abide by the order made as to costs in the leading judgment.
ABDULLAHI MAHMUD BAYERO, J.C.A.: I was privileged to read the draft copy of the judgment just rendered by my learned Brother Abiriyi JCA. I agree that since the interlocutory decision of the lower Court was not on law alone, the Appellant ought to have sought the leave of either the Court below or this Court. I therefore uphold the
preliminary objection. The Appeal is struck out for being incompetent. I abide by the order as to costs.
Appearances:
Yakubu Ahmadu
For Appellant(s)
R. M. Agav with him, P. O. IjaborFor Respondent(s)
Appearances
Yakubu AhmaduFor Appellant
AND
R. M. Agav with him, P. O. IjaborFor Respondent