Alhaji Aliyu Mohammed Gani V. United Bank for Africa (2000)

LawGlobal-Hub Lead Judgment Report

ZAINAB ADAMU BULKACHUWA, J.C.A 

By a writ of summons dated 28th October, 1997 supported by an affidavit sworn to by Gloria Nwosu a litigation secretary in Liberty Chambers, Minna, Solicitors to the plaintiff on 4th November, 1997, the plaintiff claimed against the defendant as follows:

The plaintiff claims against the defendant in the following terms –

1. The sum of Two Million, Eight Hundred and Twenty-Two Thousand, Four Hundred and Eighty-Six Naira, Eighty-Four Kobo (N2,822,486.84) as at August, 1997 being the amount of money due and payable by the defendant to the plaintiff for the loan granted and disbursed to the defendant evidenced by Deeds of Legal Mortgage dated 16th November, 1984. Registered as 42/42/32 and 18th December, 1984 Registered as 65/65/32 miscellaneous respectively at Lands Registry office, Ilorin which the defendant refused and neglected to pay back despite repeated demands.
2. 21% interest per annum from 30th September, 1997 till the date of judgment and 21% interest per annum on the judgment debt until the debt is fully liquidated.
3. Substantial costs of this action.

The defendant then filed a notice of intention to defend the action supported by an affidavit dated 8th December, 1997.

The trial court on 11th December, 1997 heard the parties on whether or not the case should be heard on the undefended list and ruled that the defendant has a defence to the matter that the case cannot be treated on the undefended ’cause list’ and the defendant should be allowed to defend the case.

On the issue of jurisdiction raised the trial court ruled that it had no jurisdiction to entertain the matter and referred the case to the Chief Judge for his further necessary action.

On 16th February, 1998 solicitors to the respondent wrote to the court in the following terms:

“We are solicitors to the plaintiff herein before mentioned. Pursuance to Her Lordship’s ordered of 11th November, 1997 (sic) we hereby apply for the transfer of the case file to His Lordship, Honourable Justice Jibrin Ndatsu Ndajiwo (Chief Judge) to enable him confirm “special jurisdiction on her Lordship”.

The letter was minuted to the trial Judge by the court’s Registrar and she replied thus:

“Officer in-charge refers the ‘special jurisdiction’ referred officer-in-charge is hereby set aside. This court is resuming jurisdiction in the matter by powers conferred under Order 47 of the HCCPR. Summon case for re-mention against 19th March, 1998”.

The case came up before the court on 14th May, 1998, both parties were absent and Mohammed the respondent’s counsel who was then the only counsel before the court moved an application dated 20th April, 1998 praying the court to set aside its decision of 11th December, 1997, which prayers the court granted.

On the 26th day of October, 1998 the court heard an application dated 27th July, 1998 that the case be placed on the undefended list, granted the application on 25th November, 1998 giving judgment to the plaintiff in the sum of N250,000 (Two Hundred and Fifty thousand Naira) and 21% interest per annum on the said sum from 30th September, 1997 till the liquidation of the judgment sum. A judgment order was drawn up on 25th November, 1998 on the above judgment.

At page 73 of the record on the same day the court on an ex-parte submission by Mohammed, counsel to the respondent corrected a supposed slip in its earlier judgment and rewrote it thus:

“The defendant in the case therefore have no defence (sic) to the action and this is a proper case as Mr. Mohammed has said to be placed under the undefended list. It is hereby so placed and judgment is hereby given for the plaintiff to the tune of N250,000.00 (Two Hundred and Fifty Thousand Naira) he collected plus interest which as at 31st August, 1997 stood at Two Million, Eight hundred and Twenty-Two Thousand Four Hundred and Eighty-Six Naira Eighty-Four kobo (N2,822,846.84k). And he should pay from September 30th, 1997 till judgment debt finally liquidated”.

A new judgment order was drawn up on the same date that is, 25th November, 1998.

The Defendant/Appellant became aware of the amended judgment when he paid in a cheque for N334,000.00 (Three Hundred and Thirty-Four thousand Naira) covering the judgment debt of the first judgment.

He thereupon filed an appeal consisting of six grounds of appeal against the judgment of the trial court.

The Grounds of Appeal reproduced below are:

“GROUNDS OF APPEAL:

(1) The learned trial court Judge misdirected himself on the facts when he found that the Defendant/Appellant admitted taking a total loan of N350,000 which he refused to pay.

Particulars

(a) The court found as fact that:-

“It is not in contention here that the defendant applied for a loan from the bank of N200,000.00 and an overdraft of 40,000 (sic). He later obtained an additional loan of N100,000 and N10,000 was given also. He then mortgaged his houses covered by certificate of occupancy Nos. 16 and 002318. It is this loan and overdraft that the defendant has refused to pay back the bank despite repeated demands.”

(b) By finding that “it is not in contention…” the trial court was making a finding that the defendant admitted applying and receiving a loan and overdraft of:

(i) N200,000

(ii) N 40,000

(iii) N100,000

(iv) N10,000

———

N350,000

———-

But paragraph 3(a), (b) and (c) of the defendant’s affidavit shows that he admitted APPLYING for a total of N250,000 only.

(c) The defendant never admitted receiving N350,000 or even the whole sum of N250,000.

(2) The learned trial court Judge erred in law when he held that the defendant had not made out a defence on the merit.

Particulars

(a) The Trial Court held that:

“The defendants in this case therefore have no defence to the action and this is a proper case as Mr. Mohammed has said to be placed under the undefended list. It is hereby so placed and judgment is given for the plaintiff…”

(b) In paragraph 3(d) and 4(a) (b) and (e) of the affidavit filed by the defendant, along with the defendant’s notice of intention to defend, it is deposed as follows:

“3(d) that he did not enjoy the whole sum of N250, 000 granted to him as facility.

4(b) that defendant is only liable to the plaintiff in the actual principal sum benefitted by him”.

4(e) that the court lacks jurisdiction, it being of Minna not New Bussa Judicial Division.”

(c) The affidavit shows that there is a dispute between the parties and it is not intended by the rules of court that the court should consider the merit of a defence before the trial.

(3)The learned trial court Judge misdirected himself on the facts when he held that there was a valid statutory consent to mortgage.

Particulars

(a) The learned Judge made the following observations and finding:

“What is in contention however is the issue of consent to mortgage which Mr. Isiyaku because (sic) said should have been given by the Military Governor and not the Commissioner. There is no doubt that Mr. Isiyaku just wanted to make a defence for his clients otherwise a consent supposed to be given by the Military Governor; if so given by the Honourable Commissioner whom is so delegated to give such consent, it would no doubt be said to be validly and properly made as was the case here. There was therefore a valid consent given”.

(b) The court found that the statutory duty of granting consent was delegated to the Honourable Commissioner, yet there was no iota of evidence of such delegation, if it existed.

(4). The lower court lacked jurisdiction to entertain the suit.

Particulars

(a) The suit was grounded on mortgage of landed properties situated in New Bussa, Niger State.

(b) New Bussa falls within Borgu Judicial Division.

(c) The defendant pleaded specially in objection to the jurisdiction in paragraph 4(e) of the affidavit stating also his defence on the merit.

(5). The learned trial Judge erred in law when he amended the judgment in his Chambers following an oral application, ex-parte, by the counsel to the plaintiff after the order had been drawn up, signed and sealed.

Particulars

(a) After the delivery of the first judgment in open court, the defendant’s counsel applied in writing, through the Registrar, for and was given a drawn-up order of the court signed by the learned trial Judge and sealed. Both counsel to the parties were present in court. In particular, the court recorded the following as having transpired after it delivered its judgment in the open court-

“Mr. Mohammed – We are grateful and we shall not be asking for cost.

“Court – Either party can appeal within the statutory period.

Signed and dated by the learned Judge).

Later in the evening, the court’s bailiff delivered to the defendant’s counsel in his office the said drawn up order, as applied for by the defendant’s counsel.

(b) On 1/12/98, learned counsel while preparing the notice of appeal discovered from the court’s file another drawn-up order not served on him and which was obtained after an oral application ex-parte and which was heard not in open court but in Chambers. The same was a drawn-up order made pursuant to an amendment on the first judgment.

(6). The learned trial Judge erred in law when he heard plaintiff’s oral application ex-parte and not in the open court thus denying the defendant his right of fair hearing.

Particulars

(a) Plaintiff did not file a motion on notice.

(b) The oral application was heard and granted by the learned trial Judge, ex-parte and in his Chambers after delivery of judgment in the presence of both counsel in open court.

(c) The trial court had no jurisdiction to sit on appeal over its own judgment.

The appellant pursuant to the rules of this court, filed his brief of argument in which he raised three issues for the determination by this court.

The issues for determination are:

(1) Whether the lower court has jurisdiction to hear the suit when it was of a wrong Judicial division, and if it had such jurisdiction whether having itself earlier sustained an objection that it lacked jurisdiction, if court later, without hearing both parties, reverse itself and proceed to hear the suit.

(2) Whether, having earlier ruled that the Defendant had made out a defence on the merit and ordered the suit to be transferred to the ordinary cause list the court was right in later reversing itself and hearing the suit as undefended even as the writ was never so marked, and if it could whether the defendant had not by his counter-affidavit made out a defence on the merit.

(3) Whether the lower court was right when it amended its judgment ex-parte and after a drawn-up order had been signed, sealed and issued.

The respondent similarly raised three issues in his brief to wit:

(1) Whether the High Court of Justice, Minna, Niger State has jurisdiction to hear and determine this suit since the cause of action arose in New Bussa,Niger State and the defendant/appellant resides in New-Bussa, Niger State?.

(2) Whether the Defendant/Appellant Affidavit discloses a defence on the merit?.

(3) Whether the learned trial Judge has jurisdiction to correct an error in a judgment or order arising from a slip or accidental omission.

The three issues formulated by the appellant incorporates within their scope the issues raised by the respondent. I will accordingly opt for the issues raised by the appellant which fully touch on all the relevant points raised by the parties in their case.

Arguing the first issue, learned counsel for the appellant submitted that the trial court lacked jurisdiction to determine the case pointing out that it was the case of the plaintiff that the defendant applied for a loan and overdraft facilities from the plaintiff at the plaintiff’s branch office at New Bussa, Niger State which is within the Borgu Judicial Division of Niger State. Similarly, it has shown that the defendant resides at New Bussa, Niger State and the properties said to be mortgaged are all in New Bussa.

It was the appellant contention that by the provisions of Order 10 Rules 3 and 4 of the Niger State Civil Procedure Rules, suits for breach of contract and in any other cases, ‘SHALL’ be commenced and determined in the judicial division in which such contract ought to have been performed or in which the defendant resides or carries on business or in which the cause of action arose.

That where a case is commenced in a wrong judicial division Order 10 rule 5 of the Nigeria State High Court Rules allows the trial of such a case providing however that:

(1) the court itself may direct the transfer of the case to the proper judicial division after declining to entertain the case; or

(2) where the defendant object to the jurisdiction of the court, the court cannot proceed to entertain it.

It was submitted for the appellant that, the defendant had at the earliest opportunity objected to the jurisdiction of the trial court, which objection the court upheld and ruled declining jurisdiction in the case on 11th December, 1997.

Directing that the case should be referred to the Chief Judge for his further directives.

That the court however without referring the matter to the Chief Judge assumed jurisdiction by setting aside its ruling of 11th December, 1997 under powers conferred by Order 47 of the High Court Rules. Counsel for the appellant further submitted that the trial Judge lacks jurisdiction to set aside its ruling of 11th December, 1997 as it would amount to sitting on appeal on that ruling. That Order 47 rule 1 (supra) does not confer power on the court to act where there is no jurisdiction, and that an order made without jurisdiction will be null and void.

In reply, it is the contention of the respondent that each state of the Federation has one High Court with various judicial division within the State created mainly for administrative convenience, that the learned trial Judge therefore has the power and the jurisdiction to hear and determine any matter within Niger State. Pointing out that at the time the case was filed before the trial court there was no Judge appointed to New Bussa, Borgu judicial division. That it was therefore wrong of the trial Judge to rule that the court lacks jurisdiction and its order of 14th May, 1998 was therefore a nullity which was rightly set aside on 14th May, 1998, relying on the principle of law that any court of record has an inherent power to set aside its order or judgment which is a nullity – Sken consult (Nig.) Ltd. v. Ukeh (1981) 1 SC 6 and Godwin Chime & Anor v. Nelson Ude & Others (1996) 7 SCNJ 81. Submitting further that the jurisdiction of the State High Court, in this instance the Niger State High Court, Minna, is jealously guided by Section 272 of the 1999 Constitution of the Federal (formerly Section 236 of the 1979 Constitution).

The facts of the case which relate to this issue show that the defendant who resides in New Bussa of Borgu judicial division of Niger State on being served with a writ of summon filed at Minna High Court filed a notice of intention to defend accompanied by an Affidavit whereby he raised 3 defences and an objection that the court lacks the jurisdiction to determine the matter which ought to have been filed before the New Bussa High Court. The court at page 28 lines 18-22 sustained the objection and ruled. The court then at page 30 suo motu set aside that ruling and assumed jurisdiction on the matter and proceeded in hearing the case.

Order 10 Rules 3 and 4 of the Niger State High Court Civil Procedure Rules either of which is applicable to this case provides:

“3. All suits for specific performance or upon the breach of any contract shall be commenced and determined in the judicial division in which such contract ought to have been performed or in which the defendant resides or carries on business.

4. All other suits shall be commenced and determined in the judicial division in which the defendant resides or carries on business or in which the cause of action arose…………….”

Order 10 rule 5 (supra) further provides;

“In case any suit shall be commenced in any other judicial division than that in which it ought to have been commenced, the same may, notwithstanding, be tried in the judicial division in which it shall have been so commenced, unless the court shall otherwise direct, or the defendant shall plead specially in objection to the jurisdiction before or at the time when he is required to state his answer or to plead in such cause”.

(underlining is mine)

The use of the word ‘SHALL’ in the above provisions, have made compliance with them mandatory.

Although Order 10 rule 5 (supra) allows for the trial of a case commenced in a wrong judicial division it gave two exceptions.

1. Where the court declines jurisdiction and directs the transfer of the case to the proper judicial division; and
2. Where the defendant raises objection to the jurisdiction of the court, the court cannot proceed with the matter.

In this case the defendant had at the earliest opportunity, when he was filing his notice of intention to defend, raised an objection that the matter was filed at the wrong judicial division thus ousting the jurisdiction of the court.

The trial court upheld that objection on 11th December, 1997 at page 29 of the records and declined jurisdiction.

The learned counsel to the respondent submitted that Section 272 of the 1999 Constitution of the Federation, confers unlimited jurisdiction on all State High Courts and judicial divisions were merely created for administrative convenience. However, in as much as each court within a state has unlimited jurisdiction to determine any matter within that state, the High Court rules provides the way and manner each matter that is to come before the High Court is to be initiated and subsequently determined. A court can only be competent to determine a matter only if all the conditions to its having jurisdiction are complied with Western Steel Works Ltd. v. Iron and Steel Workers Union of Nigeria (1986) 3 NWLR (Pt.30) 617.

In this case, the High Court Rules provide that the case must be commenced in the judicial division the defendant resides or carries on business, particularly if he raises objection to the competence of the court to determine the matter which the defendant did at the earliest opportunity.

Where there is a non-compliance with a stipulated precondition for setting a legal process in motion, any suit initiated in contravention of the pre-condition is incompetent and the court is equally incompetent to entertain the suit”. – Per Achike, J.C.A (as he then was) in Gambari v. Gambari (1990) 5 NWLR (Pt.152) 572 at 587; Madukolu v. Nkemdilim 1962 1 All NLR (Part. 4) 587.

The trial court had rightly sustained the objection of lacking jurisdiction on 11th December, 1997, it therefore had no business re-opening the case again. As at that instance it lacks jurisdiction in the matter.

Where a trial court lacks jurisdiction to entertain a case, it lacks competence to proceed with the matter. Aunam (Nig.) Ltd. v. Leventis Motors Ltd. (1990) 5 NWLR (Pt. 151) 458.

The first issue must therefore be determined in favour of the appellant and I so hold.

ISSUE NO.2

It was the submission of the appellant that before the trial court declined jurisdiction on the case, it ruled that the defendant had disclosed a case on the merits and granted him leave to defend the action ordering that the cases should be placed on the ordinary cause list, pointing out that the effect of that ruling was to give the defendant leave to defend and to have the matter transferred from the undefended to the ordinary cause list pursuant to Order 23 rules 3(1) (2) of the Niger State High Court Civil Procedure Rules. That the court should have then proceeded to order pleadings or call on the plaintiff to call his witnesses. This the court did not do but took a motion on notice on the 25th November, 1998 whereby it ruled that the defendant had no defence on the merits and entered judgment for the plaintiff.

Learned counsel submitted further that the lower court was in error to have reversed itself.

The respondent’s submission is all based on whether or not the defendant before the lower court had made out a defence on the merits.

I will not at this stage touch on the issue of whether or not the defendant affidavit has disclosed a defence on the merits or not in view of the subsequent orders I might make.

Order 23 of the Niger State Civil Procedure Rules made specific provisions in all cases initiated under the undefended list.

Order 23 rule 3(2) (supra) provides:

“Where leave to defend is given under this rule, the action shall be removed from the undefended list and placed on the ordinary cause list; and the court may order pleadings or proceed to hearing without further pleadings.”

The court having given the defendant leave to defend cannot reverse itself and re-put the case on the undefended list again as there is no such provisions in the rules. The court has to proceed as above in either ordering the parties to enter their pleadings or hear the plaintiffs witnesses.

The trial court was therefore wrong in holding at page 72 lines 15-21 of the records on 25th November, 1998 that the defendants have no defence to the action and entering judgment for the plaintiff. Issue 2 is resolved in favour of the Appellant.

Issue No.3 centres on whether or not the trial court was right to have amended its judgment ex-parte after a judgment order had been drawn.

Learned counsel for the apellant submitted that a court having decided an issue, in this case the amount payable, which decision is embodied in its judgment and an order drawn up, that court becomes functus officio and it cannot re-open the matter again and substitute a different decision to the one already recorded and drawn up. That to do otherwise would amount to the court reviewing its own judgment and exercising appellate jurisdiction over its own decision.

In reply, learned counsel for the respondent submitted relying on the case of Berliet (Nig.) Ltd. v. Kachalla (1995) 5 SCNJ.

That a court of law has power to correct an error or order arising from a slip or accidental omission in order to do substantial justice to the parties or where the order or judgment does not represent what it had intended to record.

The facts of the case show that on 25th November, 1998 the court made the following ruling on a Motion on Notice.

“The defendant in this case therefore have no defence to the action and this is a proper case as Mr. Mohammed has said to be placed under the undefended list. It is hereby so placed and judgment is given for the plaintiff to the tune of N250,000.00k he collected from them as loan overdraft and he is additionally to pay interest of 21% per annum on the same from September 30th, 1997 till the date this judgment sum is finally liquidated”.

The above order was drawn up on the judgment of the court on the same day.

A new judgment was subsequently entered on the same day on an ex-parte application of Mohammed counsel to plaintiff where the court corrected a supposed slip in the first judgment, it reads:

“The defendant in the case therefore have no defence (sic) to the action and this is a proper case as Mr. Mohammed has said to be placed under the undefended list. It is hereby so placed and judgment is hereby given for the plaintiff to the tune of N250,000.00k he collected plus interest which as at 31st August, 1997 stood at Two Million, Eight Hundred and Twenty-Two Thousand, Four Hundred and Eighty-Six Naira Eighty-Four kobo (N2,822,486.84k). And he should pay from September 30th, 1997 till judgment debt is finally liquidated”.

A new judgment order was drawn up on the same date. The Appellant became aware of that judgment when he paid a cheque for N334,000.00 (Three Hundred and Thirty-Four Thousand Naira) which covers the total judgment debt of the 1st judgment. In effect there are two judgments of the court one at page 72 where the following entry was made after the judgment:

“Mr. Mohammed – We are grateful and we shall not be asking for costs.

Court: Either party can appeal within the statutory period.

SGD

Justice Maria Sanda Zukow

Judge

25/11/98

and another quoted above on page 73 of the records. There was nothing at page 73 to show whether it was in open court, whether parties or their counsel were present, there was only the entry of the judgment on the page.

Order 26 rule 7 of the Civil Procedure Rules of Niger State provides as follows:

“Clerical mistakes in judgments or orders, or errors arising therein from any accidental slip or omission, may at any time be corrected by the court or a Judge in Chambers on motion or summons without an appeal”.

The requirement of the above provision is that before the correction can be made it must be by way of summons or motion which implies that both parties must be aware of what the court intends to do.

The amount payable in the second judgment is drastically different from that of the first judgment that it cannot be said to be an accidental slip which can easily be corrected without changing the intendment of the first judgment.

Where an order to a judgment had already been drawn-up a trial court has no business revisiting the case again, further amendments or alterations become that of an appellate court – Minister of Lagos Affairs v. Akin-Olugbade (1974) 9 NSCC 489. The trial court was therefore wrong to have amended its judgment.

I have gone into all the issues raised in this appeal only to show the many discrepancies and the non-compliance with laid down procedures before the trial court, as the whole case could have been determined on the first issue. In determining that issue, I have found that the court lacks jurisdiction to adjudicate on the case as a pre-condition to the exercise of its jurisdiction has not been satisfied.

The legal effect of such a situation is that all subsequent proceedings in the case will be a nullity.

The whole procedure before the trial court was therefore as from the 11th of December, 1997 null and void and I so hold and hereby set aside the case, remit it back to the High Court of Niger State for retrial before another Judge. I make no orders as to costs.

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Other Citations: (2000)LCN/0761(CA)