Arewa Paper Converters Ltd V N.d.i.c. (Nig. Universal Bank Ltd.) (2006)

LAWGLOBAL HUB Lead Judgment Report

MOHAMMED, J.S.C.

This is an appeal against the decision of the Court of Appeal Kaduna delivered on 22-5-2003, allowing the preliminary objection raised by the respondent in this court to the appeal of the appellant at the Court of Appeal against the decision of the Federal High Courtof 7-3-2000, refusing to set aside the judgment of the Failed Banks Tribunal Kano Zone given on 24-4-98 in the sum of N969, 572.01 with interest at 21%, against the appellant.

The appellant being a customer of the Nigeria Universal Bank limited was indebted to the Bank in its current account to the tune of N969,572.01 which remained unpaid. Banks Tribunals were established under the Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Decree, 1994. The respondent therefore as plaintiff, filed an action for the recovery of the debt from the appellant under the undefended list procedure before the Failed Banks Tribunal Kano Zone. In the course of the hearing of the matter, the Tribunal granted the respondent’s application to serve the appellant by means of substituted service which on return the Tribunal was satisfied that the appellant was duly served. In the absence of any notice of intention to defend the action in accordance with the rules, the Tribunal entered judgment against the appellant in terms of the amount claimed. This judgment was entered on 24-4-98. There was no appeal against this judgment by the appellant up to 28-5-99 when the Tribunals (Certain Consequential Amendments etc) Decree No. 62 of 1999 dissolving the Tribunals and transferring all pending part heard matters to the Federal High Court for hearing and determination, came into force.

On 22-10-99, five months after the coming into force of Decree 62 of 99, the appellant filed an application at the Federal High Court Kaduna asking the court to set aside the judgment of the Failed Banks Tribunal delivered against it since 24-4-98. In the same application, the appellant also sought for an interim relief of staying the execution of the same judgment pending the determination of the application to set aside the judgment. After hearing the parties on this application, the Federal High Court in its ruling delivered on 7-3-2000, dismissed the appellant’s application. Dissatisfied with the dismissal of its application, the appellant appealed to the Court of Appeal. However, before the appeal could be heard, the respondent filed a notice of preliminary objection to the hearing of the appeal.

When the appeal came up for hearing, the court below decided to take the preliminary objection first and upon hearing of the same, upheld it and struck out the appellant’s appeal. Therefore the appellant’s further appeal to this court now is against the striking out of its appeal by the court below on the ground that the court has no jurisdiction to entertain the appeal. In the appellant’s amended notice of appeal filed on 25-10-2004, the appellant challenged the decision of the Court of Appeal on three grounds of appeal from which three issues for determination were framed in the appellants brief. The issues are:

“1. Whether the appellant’s appeal from the Federal High Court to the Court of Appeal was incompetent by reason of the provisions of section 5(2) of Decree No 18 of 1994 (as amended) and Tribunals (Certain Consequential Amendments, etc) Decree No. 62 of 1999, which prescribes finality for the judgment of the Defunct Failed Banks Tribunal

2. Whether the appellant’s right of appeal from the Federal High Court to the Court of Appeal guaranteed by the 1999 Constitution can be defeated by the provisions of the Failed Banks Decree No.18 of 1994 when the decision being appealed against was that of the Federal High Court and not that of the Tribunal
3. Whether the court below was not in error when it failed to decide the appeal in the alternative on its merit regardless of the fact that it had hinged its decision on a preliminary jurisdictional point, which could be set aside by the Supreme Court”

Although the respondent had raised a preliminary objection to all the three grounds of appeal contained in the appellant’s amended notice of appeal, the respondent appeared to have also agreed with the appellant that there are three issues for determination in this appeal.

The versions of the respondent’s issues are:

“1. Whether the Court of Appeal rightly upheld the respondent’s preliminary objection to the appellant’s appeal Ground 1 of the amended grounds of appeal.

2. Whether the refusal of the Federal High Court in exercise of the jurisdiction of the Failed Banks Tribunal, to set aside the final judgment of the Failed Banks Tribunal appellable Ground 2 of the amended notice of appeal.
3. Whether the Court of Appeal must consider in all cases the merit of an appeal after holding that it lacked jurisdiction to entertain the appeal Grounds 3 of the amended notice of appeal”

Starting with the respondent’s preliminary objection to the appellant’s three grounds of appeal, the grounds of the objection are that ground one is uncertain, vague and general in terms; ground two read with the particulars is also vague. Ground three on the other hand was attacked on the basis that it does not challenge the ratio decidendi of the decision of the Court of Appeal being appealed against. The essence of a ground of appeal is to appraise the opposite party of the nature of the complaint being raised therein. The overriding consideration is whether the ground being attacked is clearly stated or is vague. See Aderounmu v. Olowu (2000) 4 NWLR (Pt. 652) 253. Bearing this principle in mind, although the appellant’s three grounds of appeal are drawn in such a way that they contained long quotations from the judgment of the court below with very lengthy particulars covering a number of pages, all the same the grounds cannot be described as vague because they clearly convey to the respondent the nature of the complaint of the appellant being raised in the grounds of appeal.

Ground one is only complaining against the upholding of the respondents preliminary objection by the court below. In ground two the appellant is complaining against the refusal of the court below to exercise its jurisdiction to hear the appellant’s appeal. All the appellant is saying in ground three on the other hand is that the court below not being a final court on issue of jurisdiction, acted in error in not proceeding to hear the appellant’s appeal after upholding the respondent’s preliminary objection. With this observation, I say all the three grounds of appeal contained in the appellant’s amended notice of appeal are competent. I now proceed to look into the issues arising for determination in this appeal with one issue formulated from each of the three grounds of appeal. Issues one and two in this appeal are interrelated. I will take them together. While the first issue is dealing with the competence or otherwise of the appellant’s appeal struck out by the court below, the second issue is mainly dealing with the appellant’s right of appeal from the decision of the Federal High Court under the 1999 Constitution to the Court of Appeal. Learned senior counsel to the appellant citing section 5(1) and (2) of the Failed Banks Decree No.18 of 1994 relied upon by the Court of Appeal in upholding the respondent’s preliminary objection, argued that the decision of the Court of Appeal particularly where it held that a prayer addressed to the Federal High Court to set aside the judgment of the Failed Banks Tribunal where refused should be treated exactly as a lapsed decision of the Failed Banks Tribunal, is erroneous. Senior counsel explained that the appellant’s application at the Federal High Court was based on the provisions of the Tribunals (Certain Consequential Amendments, etc) Decree No.62 of 1999, which made the Federal High Court successor of the Failed Banks Tribunal; that as the application was based on or predicated on non-service of process, it was quite in order and rightly heard by the Federal High Court which ought to have set aside the judgment of the Failed Banks Tribunal, being a nullity as it was given without due service of process on the respondent. Several cases cited in support of the submission of the appellant include Adigun v. Attorney General of Oyo State (1987) 1 NWLR (Pt. 53) 678.

Learned senior counsel observed that the court below in its ruling now on appeal, absolutely misconceived the scope and the jurisdiction of the Federal High Court vis-a-vis the provisions of Decree No.62 of 1999, the provision of section 2(3) of which states that the court process filed before the abrogated Tribunal under Decree No.18 of 1994, shall be deemed to have been filed before the Federal High Court. With regard to the right of the appellant to appeal against the decision of the Federal High Court to the Court of Appeal and ultimately to this court, learned senior counsel asserted that the right of the appellant is guaranteed under the 1999 Constitution read along with section 2(3) of the Tribunal (Certain Consequential Amendments, etc) Decree No.62 of 1999 and the case of Eyesan v. Sanusi (1984) 4 SC 115; (1984) 1 SCNLR 353. Learned counsel emphasized that the appellant’s right of appeal can only be obstructed or expressly taken away where a statute or the Constitution expressly provides as stated in the cases of Onigbeden v. Balogun (1975) 4 SC; Ugwuh v. A.-G., East Central State (1975) 6 SC 13; Boardman v. Sokoto N.A. (1965) 1 All NLR 214; Obiyan v. Military Governor of Mid- West State (1972) 4 SC 248 and Mohammed v. E.O.P. (1999) 12NWLR (Pt. 630) 331. In conclusion, learned senior counsel urged this court to allow the appeal as it is not the intention of the law makers that provisions of section 5(1) and (2) of Decree No.18 of 1994 should deprive the appellant of its right of appeal duly conferred by another statute and the Constitution. For the respondent, it was submitted by its counsel after narrating the undisputed facts of this case and relying on section 5(1) and (2) of the Failed Banks Decree No.18 of 1994 and the case of Onuaguluchi v. Ben Collins Ndu & Ors. (2001) 7 NWLR (Pt. 712) 309 at 321, that where a statute renders any judgment of a court or Tribunal final, both the Court of Appeal and this court lack appellate jurisdiction to entertain the appeal: that it is the statute that conferred the jurisdiction that had taken it away; that in the present case the judgment of the Tribunal against the appellant which was sought to be set aside before the Federal High Court, had been preserved by statute, namely Decree No.62 of 1999 and therefore cannot be set aside or appealed against. With regard to the complaint of the appellant that it went before the Federal High Court to have the judgment of the Failed Banks Tribunal obtained in default against it set aside mainly on the grounds of denial of fair hearing which cannot be waived, learned counsel to the respondent observed that since the appellant was given opportunity to be heard but failed to avail itself before the Failed Banks Tribunal, it cannot complain of any denial of fair hearing which can be waived having regard to the decision of this court in Governor of Oyo State v. Folayan (1995) 8 NWLR (Pt. 413) 292 at 306. Learned counsel further observed that as the appellant was not before the Federal High Court to enforce its fundamental rights, most of the cases cited in that line are not relevant in the present case.

On the relevance of the provisions of sections 2 and 3 of Decree No.62 of 1999, learned counsel to the respondent quoted the provisions and submitted that the application of the appellant before the Federal High Court not being in respect of a part heard matter or new proceeding instituted before that court but for proceeding in respect of suit No FBT/KNZ/CY/242/98, the Federal High Court lacked jurisdiction to entertain the application: that although the trial court heard the application and dismissed it, the decision of the trial court was still not appealable to the Court of Appeal being a final decision of a court which is a successor of the Failed Banks Tribunal under Decree No.62 of 1999, particularly when the relief sought in the appeal was to set aside the judgment of the Failed Banks Tribunal delivered on 24-4-98. Learned counsel concluded by asking this court to dismiss the appeal. On 24-2-2003, the court below heard this appeal in the course of which learned counsel adopted their respective briefs of argument which also contained arguments on preliminary objection raised by the respondent that the court below lacked jurisdiction to entertain and determine the appellant’s appeal. The notice of preliminary objection dated 13-2-2003 and filed the same day at the court below is in terms set out below:

“(a) This Honourable Court has no jurisdiction to entertain and determine this appeal.