Ekulo Farms Limited & Anor. V. Union Bank Of Nigeria, Plc (2006)

LAWGLOBAL HUB Lead Judgment Report

MUSDAPHER, J.S.C

In the High Court of Justice of Anambra State of Nigeria, in the Onitsha Judicial Division holden at Onitsha and in Suit No. 0/258/94, the plaintiff under the undefended list procedure claimed jointly and severally against the defendants the sum of N4,912,797.30 (Four Million Nine Hundred and Twelve Thousand Seven Hundred and Ninety Seven Naira and Thirty Kobo) with interest at the rate of 21% per annum from 1/2/1994 up to the date of judgment and thereafter at the rate of 5% per annum until the final liquidation of the judgment debt. The Writ of Summons marked “undefended” was served on both defendants and the suit was fixed for hearing on the 7/7/1994, the defendants on the morning of 7/7/1994 moved a Motion praying for enlargement of time within which to file a Notice of Intention to defend the suit and deeming the Notice of Intention to defend the action, exhibited as Exhibit “A” to the affidavit in support of the Motion as duly filed and served. The plaintiff opposed the application and filed counter-affidavits. The defendants after filing further affidavit in support of the Motion, finally moved the Motion on the 31/5/1995 and after hearing the argument of counsel, the learned trial Judge delivered his Ruling on the matter on the 25/7/1995. In concluding his Ruling, the learned trial Judge said thus:

“In the circumstances of this case I will grant the applicant in terms of the motion paper. The applicants are given up till to day to file their Notice of Intention to defend. The Notice of Intention to defend and accompanying affidavit already filed are deemed properly filed and served.”

The learned trial Judge did not stop there, he continued after granting the Motion before him:-

“I am satisfied that this case should be transferred from the Undefended List to General Cause List. I make the order accordingly.

Parties to file their pleadings in accordance with the Rules.”

The plaintiff felt unhappy with the decision and appealed to the Court of Appeal. Based on the grounds of appeal, three issues were submitted to the Court of Appeal for the determination of the appeal. The issues read:-

“1. Whether the trial court was right in granting the application of the defendants/respondents under Order 20 Rule 3(1), (2) of the High Court Rules 1988, in the circumstances of the case when the same Rules make special provisions under Order 24 Rule 9(1), (2), (3), (4), (5) for hearing of a suit placed in the Undefended List.

2. Whether the trial court had the jurisdiction to make the order transferring Suit No. 0/258/94 from the Undefended List to the General Cause List and ordering the parties to file their pleadings in the said suit when the said reliefs were not prayed for by the defendants/applicants in their Notice of Motion or in the course of moving their said Motion.
3. Whether the trial court was right in the Ruling on the application before him to go beyond the said application and deal with issues relating to the trial of the case and proper to determine the same without giving the plaintiff the opportunity of being heard on the said issue.”

In their brief as respondents at the Court of Appeal, the applicants herein raised the issue of the competency of the appeal. It was argued that once an order granting unconditional leave to defend an action is made, the plaintiff has no right of appeal against the decision in accordance with Section 220(2)(a) of the 1979 Constitution Learned Counsel relied on the case of National Bank of Nigeria Ltd. v. Weide & Co. (Nig.) Ltd. & Ors. (1996) 8 NWLR (Pt. 465) 150. Accordingly, the respondents to the appeal, the appellants herein urged the Court of Appeal to strike out the appeal.

In the lead judgment of the Court of Appeal delivered by Fabiyi, JCA., and concurred to by Akpabio and Mohammed, JJCA, the learned Justice at page 107 of the record stated thus:-

“It goes without saying that after granting extension of time to file Notice of Intention to defend the suit and deeming the same as filed and served, the trial court was duty bound to hear both sides on the next way forward. In Bello v. Farmers Supply Co. Ltd. (1994) 5 NWLR (Pt.342) 127 at page 132. It is clear that after a similar application was granted. The learned counsel for the appellants then moved and prayed the court to transfer the action to the general cause list. The position is the same in Barclays Bank DCP v. Onashile (1964) LLR 74 at 75, such tallies with reasoning, as a party should be heard before adverse order is made against him. I agree that the trial court was wrong to have gone beyond the application before it to make an order against the appellant without hearing his counsel on the same. Such was in breach of the rules of natural justice enshrined under Section 33(1) of the 1979 Constitution. To that extent, the order of the trial court transferring the suit to the General Cause List and filing of pleadings by the parties is null and void. The appellant is entitled to as a matter of justice to have same set aside xxxxxxxxxx”

On the issue of the Preliminary Objection to the competence of the appeal, the learned Justice said at page 108 of the record of appeal thus:-

“I now wish to touch on the respondents’ preliminary objection argued by their counsel towards the end of their brief. It was contended that vide Section 220(2)(a) of the 1979 Constitution, the appellant has no right to appeal against the order which transferred the suit to the General Cause List. The argument ingenious as it appeared, failed to hit the target. This is because the order has been found to be a nullity as it was made without jurisdiction. I agree that for a decision to be covered or protected by Section 220(2)(a) of the 1979 Constitution, it must not be a null decision order made without jurisdiction as in this case. The appeal touching on jurisdiction is one of law alone and there is not doubt that the appellant had the right of appeal under Section 220(1)(b) of the 1979 Constitution. The preliminary objection stands on a weak wicket. It is accordingly overruled.”

The Court of Appeal thus allowed the appeal in part and set aside the order transferring the suit to the General Cause List and remitted the matter back to the trial court for the matter to be stated de novo before another Judge. The defendants felt unhappy with the turn of events and they have now appealed with leave to this court. The Notice of Appeal contains two grounds of appeal. In the brief for the appellants filed by the learned counsel, two issues for the determination of the appeal are submitted and they read thus:-