National Bank Of Nigeria Ltd. V. Weide & Co. Nigeria Ltd. & Ors (1996)

LAWGLOBAL HUB Lead Judgment Report

OGWUEGBU, J.S.C.

This is yet another appeal which revolves on Order 10 of the High Court of Lagos State (Civil Procedure) Rules 1972. The Rules are very often misapplied and misconstrued by some judges and practitioners. The result is that endless delays are caused while waiting for the outcome of interlocutory appeals which are the by products while the substantive cases are left in the cooler.

The plaintiff who is the appellant before this court instituted a civil action in the High Court of Lagos State in April, 1987 claiming the following reliefs from the defendants:

“1. Judgment against the First defendant in the sum of N950,015.66 (Nine hundred and fifty thousand and fifteen naira sixty six kobo) and interest thereon at the rate of 9 1/2% per annum from the 1st day of March, 1987 until the whole debt with interest is settled.

2. Judgment against the Second defendant in the sum of N2,867,932.25 (Two million, eight hundred sixty seven thousand nine hundred and thirty two naira twenty five kobo) and interest thereon at the rate of 9 ‘bd % per annum from the 1st day of March, 1987 until the whole debt with interest is liquidated.
3. Judgment against the First, Second, Third and Fourth defendants jointly and severally in the sum of N1,200,000.00 and interest thereon at the rate of 9 1/2 % per annum from the 1st day of March, 1987 until the whole debt and interest arc paid.
4. Judgment or an order that the plaintiff can exercise its powers as an equitable mortgagee to sell any or all the landed properties of the First and Second defendant (sic) at Iganmu, Lagos. Ilupeju, Lagos and Isolo Industrial Estate, Isolo, Lagos in order to use the proceeds of such sales in liquidating all or part of the debt of N3,817,947.91 payable by the defendants as at 28th February, 1987 with interest thereon at the rate of 9 1/2% per annum from the 1st day of March, 1987,”

The writ of summons was specially endorsed and accompanied by statement of claim. The 1st, 2nd and 3rd defendants entered an unconditional appearance by their memorandum of appearance 8:4:87. The fourth defendant could not be served with the writ of summons.

On 5:5:87, the plaintiff applied by summons to the court for summary judgment under Order 10, rule 1 of the High Court of Lagos State (Civil Procedure) Rules, 1972. The summons was supported by an affidavit deposed to by one Fidelis A. Ogunleye, the Loans Manager of the plaintiff’s Bank. Exhibits “A” – “D” were annexed to the affidavit. The defendants filed a counter-affidavit in opposition to the plaintiff’s application for judgment. A statement of defence was annexed to the counter-affidavit. The 3rd defendant, Dr. Onagoruwa, also filed a motion praying the court to strike out his name from the writ of summons.

The summons for judgment and the motion to strike out the name of the 3rd defendant were for convenience taken together by the learned trial Judge who in a reserved ruling, after hearing arguments, dismissed the applications for summary judgment and to strike out the name of the 3rd defendant from the summons. The defendants were granted unconditional leave to defend the action.

The plaintiff being dissatisfied with the ruling of the High Court appealed to the Court of Appeal and that court in a unanimous decision dismissed the appeal on 9:2:89. The plaintiff has further appealed to this court against the decision of the Court of Appeal. Five grounds of appeal were filed and from these grounds of appeal, the following seven issues have been identified by the appellant for determination in the appeal:-

“The first issue for determination in this appeal is whether the defendant/respondents have admitted in the letter dated 18th July, 1986 which they wrote to the plaintiffs/appellant liability to pay the loan/overdraft of N3,446,674.20 and interest thereon at the rate of 9 1/2% per annum as at 31st May 1986.

The second issue for determination is whether the onus of proof was not on the defendants/respondents who admitted liability to pay the debt of N3,446,674.20 to prove that they have settled the debt instead of putting up a sharp defence that they made a mistake in making the admission.

The third issue for determination is whether the third defendant/respondent who had executed a deed of guarantee to pay the debt of the first and second defendants/respondent can be heard to say that he is no longer the guarantor contrary to the provisions of the deed of guarantee which was executed under seal.

The fourth issue for determination is whether the written undertaking given by the defendants/respondents to pledge the landed properties of the defendants/respondents as securities for the loan/overdrafts granted by the plaintiff/applicant has created an equitable mortgage in respect of which the Court can make an order to sell the landed properties.

The fifth issue for determination is whether the mere fact that the defendants/respondents filed a Statement of defence or a counter-affidavit or both is sufficient ground for ruling that the application for judgment should be dismissed in order to adduce oral evidence without considering whether or not the Statement of Defence or the Counter-Affidavit or both constituted a valid defence in law.

The sixth issue for determination is whether this Honourable Supreme Court of Nigeria should set aside the two concurrent findings of fact of the trial court and the Court of Appeal of Nigeria.

The seventh issue for determination is whether this Honourable Final Appellate Court has jurisdiction to deliver judgment in favour of the plaintiff/applicant instead of sending the case back to the trial court to start the case de novo,”

The only issue which the respondents raised in their brief of argument is whether the Court of Appeal was right in up-holding the decision of the High Court granting the defendants/respondents an unconditional leave to defend the action.

There is also an observation in the said brief to the effect that grounds 1 and 2 of the grounds of appeal are incompetent and should be struck out on the ground that each of the grounds of appeal complained of error in law and misdirection in law.

Mr. Oriade, learned appellant’s counsel adopted the appellant’s brief of argument and all the authorities cited therein. In the course of his oral submissions, the court suo motu raised the issue whether there was a right of appeal to the court below having regard to the provision of section 220(2) (a) of the Constitution of the Federal Republic of Nigeria, 1979. On this question, Mr. Oriade submitted that the appeal was not caught by the said provision of the Constitution. He relied on the case of Nishizawa Ltd. v. Jethwani (1984) 12 SC. 234 amongst other authorities he cited. It was his contention that the question of leave to defend does not apply when the court is considering the provision of Order 10, rules 1-3 of the High Court of Lagos State (Civil Procedure) Rules. He further argued that his appeal to the court below did not complain against the unconditional leave to defend granted to the defendants but the dismissal of application for summary judgment by the learned trial judge.

Mr. Okesiji for the respondents adopted the arguments contained in the respondent’s brief filed on 20:9:95. He referred to section 220(2)(a) of the 1979 Constitution and submitted that a decision of any High Court granting unconditional leave to defend an action is not appealable.

He submitted further that a court which is considering an application for summary judgment may enter summary judgment for the plaintiff or grant the defendant unconditional leave to defend the action. He further contended that a complaint that the plaintiff was not granted summary judgment is also a complaint that the defendants were granted unconditional leave to defend. He referred to relief four sought from the Court of Appeal in the Notice of Appeal. He referred the court to the two conflicting decisions of the Court of Appeal in Societe Generate Bank (Nig) Ltd. v. Panatrade Ltd & Ors (1994) 6 NWLR. (Pt. 353) 270 at 734 paras F-H and Nishizawa Ltd. v. Jethwani (1995) 5 NWLR (Pt. 398) 668 at 670.

Mr. Okesiji argued that section 220(2) (a) – (c) of the Constitution bars “any” right of appeal in each of the three situations and that section 221 thereof cannot make the decision appealable and that the two sections of the Constitution cannot be read disjunctively. He further contended that section 221 does not confer a right of appeal but a discretion on the court and when that discretion is exercised, the litigant acquires a right of appeal and not before the discretion is exercised and that the words “subject to” appearing in section 221 is a word of qualification. He finally submitted that by the clear provision of section 220(2) (a) of the Constitution, the decision of the learned trial Judge is not appealable. We were urged to dismiss the appeal on its merits, and having regard to section 220(2) (a) of the Constitution, to declare the decision of the court below null and void as there was no right of appeal to that court.

The competence of the Court of Appeal to hear and determine the appeal which is on a further appeal to this court having been raised, I will deal with that issue first and if there was want of jurisdiction in that court, any consideration of the appeal in this court will be an exercise in futility.

Section 220 of the Constitution of the Federal Republic of Nigeria, 1979 makes provision for appeals as of right from a decision of the High Court. It provides:

“220(1) An appeal shall lie from decisions of the High Court to the Federal Court of Appeal as of right in the following cases –

(a) ……………

(b) ……………

(c) …………….

(d) …………….

(e) …………….

(f) …………….

(g) …………….

(2) nothing in this section shall confer any right of appeal

(a) from a decision of any High Court granting unconditional leave to defend an action

(b) …………….

(c) …………….

Section 221 of the 1979 Constitution which was also referred to the court by both counsel provides:

“221 (1) Subject to the provisions of section 220 of this Constitution, an appeal shall lie from the decisions of a High Court to the Federal Court of Appeal with leave of the High Court or the Federal Court of Appeal.”

The decision of the learned trial Judge (Adeniji J.) which gave rise to this appeal is the dismissal of the plaintiff’s summons for summary judgment and the unconditional leave to defend the action granted to the defendants who are respondents in this court. The first question to be answered is whether the said decision dated 23: 10:87 comes within the provision of section 220(2) (a) of the Constitution. The learned appellant’s counsel submitted that his appeal to the court below is against the dismissal of his application for summary judgment and not on the unconditional leave to defend granted to the defendants. This argument is without substance having regard to the provisions of Order 10 of the High Court of Lagos State (Civil Procedure) Rules, 1972.

Order 10 rule 1(a) reads:

“(a) Where the defendant appears to a writ of summons specially indorsed with or accompanied by a statement of claim under Order 3 Rule 4, the plaintiff may on affidavit made by himself or by any other person who can answer positively to the facts verifying the cause of action and the amount claimed (if any liquidated sum is claimed), and stating that in his belief there is no defence to the action except as to the amount of damages claimed, if any, apply to a Judge in Chambers for liberty to enter judgment for such remedy or relief as upon the statement of claim the plaintiff may be entitled to. The Judge thereupon, unless the defendant shall satisfy him that he has a good defence to the action on the merits or shall disclose such facts as may be deemed sufficient to entitle him to defend the action generally, may make an order empowering the plaintiff to enter such judgment as may be just, having regard to the nature of the remedy or relief claimed.”

How a defendant may show cause is provided in rule 3 of Order 10 which reads:

“(a) The defendant may show cause against such application by affidavit, or the Judge may allow the defendant to be examined upon oath.

(b) The affidavit shall state whether the defence alleged goes to the whole or part of the plaintiff’s claim.

(c) The Judge may, if he thinks fit, order the defendant, or in the case of a corporation, any officer thereof, to attend and be examined upon oath, or to produce any leases, deeds, books, or documents, or copies of or extracts therefrom.”

Order 10 rules 5 and 6 read:

“5. If it appears to the Judge that any defendant has a good defence to or ought to be permitted to defend the action, and that any other defendant has not such defence …… the former may be permitted to defend, and the plaintiff shall be entitled to enter final judgment against the latter ….

6. Leave to defend may be given unconditionally, or subject to such terms as to giving security or time or otherwise as the Judge may think fit.”

Having gone through the above rules of Order 10, it is quite clear that the defendants are not permitted to defend except with the leave of the Judge; leave will only be granted upon the defendants satisfying him that they have a good defence to the action on the merits or upon disclosing such facts as may be deemed sufficient to entitle them to defend generally and such facts are to be given on oath either by affidavit or by examination on oath.

The trial court cannot consider the application for summary judgment without considering the affidavit of the defendants showing cause where there is one and generally complying with the requirements of Order 10 rule 3. The application for summary judgment is inseparable from the affidavit showing cause. If it appears that the defendant or any of them has a good defence to or ought to be permitted to defend the action, the Judge may permit him to do so either conditionally or unconditionally.

We were referred to two conflicting decisions of the Court of Appeal involving the interpretation of section 220(2) (a) of the 1979 Constitution. The two cases are Nishizawa Ltd v. Jethwani delivered on 31:3:82 and reported in (1995) 5 NWLR (Pt. 398) 668 and Societe General Bank Nig. Ltd. v. Panatrade Ltd. & Ors. delivered on 22:4:94 and reported in (1994) 6 NWLR (Pt. 353) 720. Even though Nishizawa’s case was delivered in 1982, it was not reported until about twelve years after. The latter case must have prompted the reporting.

Be that as it may, in both cases, section 220(2)(a) was considered. In Societe General Bank Nig. Ltd. v. Panatrade Ltd. & Ors. supra the Court of Appeal by a majority decision, dismissed on the merits, the plaintiff’s appeal against the unconditional leave to defend the action granted to the defendants therein. (Kalgo, J .C.A. and Sulu-Gambari, J.C.A. (as he then was), Uwaifo, J .C.A. also dismissed the appeal not on the merits but on the ground that the appellant therein had no right of appeal by virtue of section 220(2)(a) of the 1979 Constitution. He gave no reasons for taking that stand and I am sure if the attention of that panel had been drawn to the earlier decision of the same court in Nishizawa Ltd. v. Jethwani supra, he would have given reasons for his conclusion.

The panel of the Court of Appeal which decided the earlier case construed section 220 (2) (a) extensively. In the view of Nnaemeka-Agu, J.C.A. (as he then was) who wrote the lead judgment to which the other members concurred (Ademola, J.C.A. and Kutigi, J.C.A. (as he then was), an appeal lies under section 220 (2)(a) of the Constitution with leave of the High Court or the Court of Appeal.

In the course of his judgment, he considered section 221 of the 1979 Constitution, section 117(2) of the 1963 Constitution, section 31(1)(c) of the English Judicature Act, 1925, the cases of Barrel v. Fordree (1932) A.C. 676, Rabiu v. Kano State (1980) 8-11 SC 130 and Nabhan v. Nabhan (1967) 1 All NLR. 47 amongst others. He came to the conclusion that it is not the intendment of section 220(2) (a) of the Constitution of 1979 to bar altogether the right of appeal by a person who is a party to a decision of any High Court granting an unconditional leave to defend an action

and that such an intending appellant could appeal with the leave of the High Court or the Court of Appeal.

Before construing sub-section 220(2) of the Constitution, I have in mind the views of Udoma, J.S.C. in Rabiu v. Kano State supra that the approach of this court to the construction of the Constitution should be, as it has been, one of liberalism and that it is not the duty of the court to construe any of the provisions as to defeat the obvious ends the Constitution was designed to serve. I should also bear in mind that where the words of the legislature are clear, there is no room for applying any of the principles of interpretation which are merely presumptions in cases of ambiguity in the statute.

When Nishiizawa Ltd. v. Jethwani (1984) 12 SC 234 came before this court, the issue of section 220(2) (a) of the Constitution was not raised and this court had no opportunity of expressing its views on it. Sub-section 220(2) starts as follows:

“Nothing in this section shall confer any right of appeal …. ” (Italics is for emphasis)

It seems to me that the legislature having set out the situations where an intending appellant can appeal to the Court of Appeal as of right in section 220(1) of the Constitution and made other provisions in section 221 (1) where appeals lie with leave, it intentionally excluded any right of appeal in the three cases set out in sub-sections 220(2) (a), (b) and (c) of the 1979 Constitution. Infact the exclusion in my view is absolute in sub-section (2) (a) and (b) whereas sub-section 2(c) is qualified in the sense that with leave of the High Court or the Court of Appeal, the right of appeal against a decision made with the consent of the parties or as to costs only is preserved.

Strictly speaking, section 220(2) (c) of the Constitution belongs to the family of decisions governed by section 221 (1).

Reading sections 220 to 225 together and most importantly, sections 220 and 221, I am satisfied that the words used in section 220(2) are unambiguous and ought receive the construction according to their plain meaning. Section 220 cannot read and construed in isolation from section 221. While section 220(1) deals with appeals as of right, section 221 (1) deals with appeals with leave. The specific provision made by the legislature in section 220(2) must have been deliberate and for good reasons.

At this Stage, I will consider section 117 of the Constitution of the Federal republic of Nigeria, 1963 and the case of Nabhan v. Nabhan (1967) All NLR … (1990 Reprint).

Section 117(2) provides:

“(2) An appeal shall lie from the decision of the High Court of a territory to the Supreme Court as of right in the following cases …………….”

It proceeded to mention six situations where appeals lie as of right:

“2(a) final decisions in any civil proceedings before the High Court sitting at first instance;

(b) …………………..

(c) …………….

(d) …………….

(e) …………….

(f) such other cases as may be prescribed by any law in force in the territory.

Provided that nothing in paragraph (a) of this subsection shall confer any right of appeal –

(i) from any order made ex-parte;

(ii) from any order relating only to costs;

(iii) from any order made with the consent of the parties; or

(iv) in the case of a party to proceedings for dissolution or nullity of marriage who, having had time and opportunity to appeal from any decree nisi in such proceedings, has not so appealed, from any decree absolute founded upon such a decree nisi.”

Nabhan v. Nabhan supra revolved around S.117 (2) of the 1963 Constitution and proviso (iv) to the said sub-section dealing with decree nisi. As a result of various issues which might arise (such as status, property, alimony and custody of children) if section 117(2)(a) did not confer a right of appeal from a decree nisi, this Court construed section 117(2) (a) of the 1963 Constitution to include a decree nisi Nabhan v. Nabhan supra.

It is in recognition of those issues which might arise that this court in the said case treated a decree nisi as a final decision under section 117(2) (a). The peculiar situation was recognised by the court when Brett, J.S.C who wrote the lead judgment observed at page 61 as follows:

“To sum up, we hold that it is open to the Court on the wording of section 117 (2)(a) of the Constitution to treat the decision appealed from in this case as a final decision for the purposes of that paragraph, and that a consideration both of the history of such appeals in Nigeria, und of the consequences to innocent persons which might follow if no appeal could be brought until after a decree absolute had effected a change in the matrimonial status of the parties ………………….”

It should be remembered that there was no intermediate appellate court when the 1963 Constitution came into force and appeals from the High Courts went to the Supreme Court.

The 1979 Constitution to some extent altered the language and the arrangement of the sub-sections where an intending appellant can appeal as of right and with leave as well as the proviso from what they were in the 1963 Constitution. Section 220(2) which is a clause of exception in the section may in exceptional circumstances have the effect of a substantive enactment but the natural presumption is that, but for the proviso, the enabling part of the section would have included the subject matter of the provision and in this case, the right to appeal against the grant of an unconditional leave to defend the action. See Rhondda U.D.C. v. Taff Vale Rly Co. (1909) A.C. 253 at 258.

As I said earlier the legislature when it inserted section 220(2) did so deliberately having regard to the history of appeals in such cases and the peculiar nature of the three cases covered by the proviso.

I am therefore in no doubt that having regard to section 220(2) (a) of the Constitution, the plaintiff possessed no right of appeal against the decision of Adeniji, J. delivered on 23:10:87. 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. See Ugwu v. Attorney-General of East Central State (1975) 6 SC 13, Adigun & ors v. Attorney-General of Oyo State & ors (1987) 2 NWLR (Pt. 56) 197, Ajomale v. Yaduat No.1 (1991) 5 NWLR (Pt. 191) 257 and Odofin & ors v. Agu & ors. (1992) 3 NWLR (Pt. 229) 350.

It was also proper for this court to raise the issue suo motu since it is crucial to the appeal and any proceedings leading to a judgment given without jurisdiction is a complete nullity however well conducted. See Sule v. Nig. Cotton Board (1985) 2 NWLR (Pt.5) 17, Onyema & ors. v. Oputa & or. (1987) 3 NWLR (Pt.60) 259, Ojokolobo & Ors. v. Alamu & Ors. (1987) 3 NWLR (Pt. 61) 377, Moses v. Ogunlabi (1975) 4 SC 81 and Petrojessica Enterprises Ltd. & Or. v. Leventis Technical Co. Ltd. (1992) 5 NWLR (Pt.244) 675 at page 693 where Belgore, J.S.C. observed as follows:

“Jurisdiction is the very basis on which any tribunal tries a case; it is the lifeline of all trials. A trial without jurisdiction is a nullity ………….

This importance of jurisdiction is the reason why it can be raised at any stage of the case, be it at the trial, on appeal to the Court of Appeal or this Court, a fortiori the court can suo motu raise it.”

See also Osadebay v. Attorney-General Bendel State (1991) 1 NWLR (Pt.169) 525, Owoniboys Technical Services Ltd. v. John Holt Ltd. (1991) 6 NWLR (Pt. 199) 550 and Kano v. C.B.N. (1991) 9 NWLR (pt.214) 126 and Osafile v. Odi (No.1) (1990) 3 NWLR (Pt. 137) 130.

In conclusion, I hold that the Court of Appeal had no jurisdiction to hear and determine the appeal. Its decision delivered on 9:2:89 is a nullity. The appeal before us is incompetent and it is hereby struck out with N1,000.00 costs to the respondents.

SC.220/1989