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MAMMAN NASIR, JCA. (Presided and Read the Leading Judgment)
EMANUEL OBIOMA OGWUEGBU, J.C.A.
NIKI TOBI, J.C.A
AFRICAN CONTINENTAL BANK LTD
G.N. Nwosu – for the Appellant
Ugochukwu Ogakwu – for the Respondent
[Sam Eleanya, Agboola Omolola Oluwafolakemi, Eleanya Kalu Vincent, Eleanya Ugochi Vine]
APPEAL- Appealable decision – Meaning of within S.277(l) 1979 Constitution.
APPEAL – Leave to appeal – Appeal from High Court to Court of Appeal – Interlocutory appeal on point of law – Whether leave required – Section 220(1) (b) of the 1979 Constitution considered.
COURT – Installment payment – Power to grant.
COURT – Raising issue suo motu – Duty on court in respect thereof .
COURT – Re-examination of ‘validity of its own judgment – Propriety of.
JUDGMENT AND ORDER – Court – Re-examination of validity of its own judgment – Propriety of
JUDGMENT AND ORDER – “Decision” in Section 277 of 1979 Constitution – Meaning of
JUDGMENT AND ORDER – Installment payment -Order of– Power of coma to giant.
LEGAL PRACTITIONER – Refusal to address court upon court’s request – Propriety.
PRACTICE AND PROCEDURE – Addresses – Refusal to address court upon coatis request – Propriety.
PRACTICE AND PROCEDURE – Raising issue .sun moot – Duty on court in respect thereof.
WORDS AND PHRASES – “Decision” in section 277 of 1979 Constitution – Meaning of.
NASIR, P.C.A. (Delivering the Leading Judgment):
The African Continental Bank Ltd. (hereinafter called the Appellants) sued the Crestline Services Nigeria Ltd. and Mr. Christian Udeh (hereinafter call the Respondents) claiming the sum of N255,406.81 being the accrued sum in respect of overdraft facility granted by the Appellant to the First Defendant/Respondent and guaranteed by the Second Respondent, who was also the Managing Director of the First Respondent. A mortgage agreement which included a foreclosure clause was entered between the parties.
The Respondents at the trial admitted the claim through a letter written by the second Respondent. Judgment was entered in terms of the claim in favour of the Appellant on 27th February 1987. The Respondents failed to pay the judgment debt and as a result of the said failure the Appellant advertised for the sale of the property (the subject of the mortgage) in the Weekly Star Newspaper of 14th May. 1989.
Having seen the newspaper advertisement the Respondents by an application dated the 15th day of May, 1989 applied for the following orders:
“(a) For an order for stay of the judgment/orders of Court in this case.
(b) For leave to defray the judgment sum by a monthly installment payment of N2,000.00 beginning from the month of June, 1989. And for such further order(s) as the Honourable Court may deem. fit to make in the circumstances.”
This application was supported by an 18-paragraph affidavit of means sworn to by the Second Respondent. This application was opposed by the Appellant on the ground that it would alter or vary the terms of the judgment given on 27th February, 1987. On the 15th March, 1990 the trial court gave its Ruling. The learned judge considered the above applications in the light of the arguments before him but he did not give orders as prayed. Instead of making the orders or refusing so to make the learned Judge considered other matters and in the final analysis he made the order that the parties should appear before him to address him on the issue as to whether the Court in this particular case had the power to reopen the substantive case and address the Court on whether part of the judgment dated 27th February, 1987 on the issue of fore-closure of the mortgage was valid or not and whether the Court could at that state extract and reverse that portion of the judgment if it was found to be a nullity. The Appellants were dissatisfied with this request. Hence this Appeal.
The Notice of Appeal filed on 21st March. 1990 contained two grounds of Appeal which. shorn of all embellishments, provide as follows:
“(1) The learned trial judge erred in law to assume jurisdiction in entertaining an application which in essence is one for a variation of his earlier judgment entered into on 27th February, 1987.
(2) the learned trial judge erred in law to invite parties suo motu to address him on the propriety of its judgment entered about two years ago when none of the parties has complained on the propriety or otherwise of the judgment.”
There is no doubt that this is an interlocutory appeal and the grounds of appeal raised only issues of law. An application for leave to appeal is necessary in all interlocutory appeals coming within the provisions of section 221 of the Constitution of the Federal Republic of Nigeria, 1979. If however the appeal comes within the provision of section 220 (I) (b) of the said constitution no leave is required. This paragraph provides: –
“220 (1) (b) An appeal shall lie from decisions of a High Court to the Court of Appeal as of right in the following cases:
(b) where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings.”
It has not been seriously argued, nor is there ground for such arguments, that the ground of appeal in this case involves any other issues except questions of law. Both the Appellant and the Respondent have raised questions for determination in relation to the judgment given at the main trial and whether the Court of trial can make further orders in respect of the said judgment. From the questions for determination raised by the Appellants and those raised by the Respondents together with all arguments thereto it seems to me that the real questions for determination are:
(1) Whether the trial court had jurisdiction to entertain the application for installment payment to satisfy the judgment given on 27th February. 1989.
(2) Whether on an application for the stay of execution of its judgment and leave to defray the judgment debt by installment payment, the Court of trial could suo motu invite the parties to address it as to whether it has jurisdiction to reopen and amend or annul a portion of its judgment which none of the parties complained against.
In his submissions both in his written brief and orally learned counsel for the Appellants approach the first question for determination on the basis that the application made by the learned counsel for the Respondents for leave to satisfy the judgment by installment payments as an application asking the Court to vary its judgment delivered on 27th February, 1987 which reads as follows:
“There is a letter addressed to the Assistant Chief Registrar High Court Enugu now before the court and it is marked Exhibit 1. The letter is signed by the Director of the company, the second defendant on behalf of himself and the 1st defendant admitting liability. I therefore enter judgment for the plaintiff in terms of this claim. Judgment is entered against the defendant jointly and severally in the sum of N255,406.81 in favour of the plaintiff.
There will he interest at the rate of 13% per annum from the 27th of September 1986 to 27th of February 1987. There will also be simple interest at the rate of 5% per annual on the judgment debt from 28th day of February 1987 until the whole sum is liquidated.
In default of the above payments the plaintiff is entitled to foreclose the second defendant’s property registered as 34/34/1037 in the Lands Registry Enugu by Public Auction or private treaty to realise either in full or in part the adjudged amount and if in part, the balance outstanding to be realised as against the defendants by due process of law.
Ibe: In view of the cordiality that existed between us and the defendants, we are only asking for out of pocket expenses which (sic) N2.182.50.”
It was argued that the above judgment must be satisfied in full and if there was no total payment of the judgment debt, the Appellants then have been given the power to foreclose the mortgage. If after the sale of the mortgaged property the total judgment debt was not satisfied then the judgment debtor could apply for installment payment of the outstanding debt. It seems to me that the learned counsel has misconceived the meaning and effect of the application for stay of execution and for the installment payment. None of these two applications challenges the accuracy or finality of the judgment given on the 27th February, 1987.
My understanding of the judgment given on 27th February 1987 is that it has made the following decisions:
There is nowhere in the judgment where the learned trial judge made any order that the judgment must be paid in bulk. In fact, the learned trial judge foresaw the possibility of partial satisfaction of the judgment debt and made consequential provisions of how the debt could be satisfied.
The issue for determination is whether the same trial court which gave judgment could make an order for installment payment of the judgment debt. The escapade into Alaka v. Adekunle (1959) LL 76 (dealing with issues of fraud). Asiyanbi v. Adeniji (1967) I All NLR 82 (on the correction of misnomer or misdescription under the slip Race and not alteration of the judgment), Sken Consult Nigeria Ltd. v. Ukey (1981) JSC 6 (on mistaken belief that court has jurisdiction) and many other authorities cannot in my view help the Appellant. All the authorities are of no assistance to the Appellant as they all dealt with issues other than the power of the Court to order installment payment of the judgment debt.
In his own submission learned counsel for the Respondents has drawn our attention both orally and in his written Brief to the Rules of Court applicable at the time of the main trial in the High Court. that is the High Court Rules. 1963. He submitted that Rules 7 and 8 of Order XLIX applied to the issue under consideration at the time of the trial and that the trial Court has. under the said rules, ample powers to make orders as to how the debt could he paid. There is a lot of substance in the submission of learned counsel. There is a lot of difference between a Court altering or amending its own judgment and the power of that same Court to implement or get its own judgment complied with. There is no valid reason why a Court should not order the satisfaction of its judgment. If there is an undisputed power inherent to the jurisdiction of a Court it is the power of that Court on proper application to see that its judgment is respected and obeyed.
In the present appeal the solution has been well provided for by the High Court Rules. 1963 in Order XLIX Rules 7 and 8 (now Order 25 Rules 9 and 10 of the High Court Rules of 1988). At the time of the application for stay of execution and for the installment payment of the judgment debt on 25th May, 1989 the relevant Rules of court were the High Court Rules of 1988. Unlike questions based on substantive law the provisions of the Rules of Court or other procedural rules apply to a case as at the time resort is made to the Court for the exercise of the powers under the Rules. It follows therefore that the applicable Court Rules areas in Order 25 Rules 9 and 10 of the High Court Rules, 1988 which provides as follows:
“9. The Court at the time of making any judgment or order, or at anytime afterwards may direct the time within which the payment or other act is to be made or done reckoned from the date of the judgment or order, or from some other point of time, as the court thinks fit.
These Rules are in all material respects identical to Order XLIX Rules 6 and 7 of the 1963 Rules.
The above Rules are very clear in their purport and intention.. There is therefore no need to refer to any other authority before applying them in the present Appeal. Rule 9 gives to the trial court the power to direct the time within which payment of a judgment debt should be made. Rule 10 gives to the trial court the power to order payment of judgment debt by instalments with or without interest, and that rich order could be made at the time of giving judgment or at any time afterwards. The Court may also rescind the order made at the time of giving judgment or that made afterwards. With the above clear provisions it is wishful thinking to ask this Court to declare the application for instalmental payment as interference with or alteration of the judgment of the trial Court. This aspect of the Appeal therefore fails.
The second question for determination raises the question as to whether the trial judge was right to reopen an issue in the main judgment of 27th February 1987 in respect of the order made by the judge therein on foreclosure. There is no doubt that none of the parties raised the issue of foreclosure in the application before the Court. The mania under consideration before the Court on which Ruling was delivered on 15th March, 1990 was limited, as earlier stated, to stay of execution and installment payment. The learned trial judge for reasons not clearly explained in the Ruling decided to invite counsel to address him on whether he was right to decide in the .judgment of 27th February, 1987 that the Plaintiff could foreclose the – mortgage. Putting it mildly, I do not see its relevance to the matter before him. There is no application for the reconsideration of that aspect of the judgment. There is no complaint. While there is no doubt that a court has power to raise an issue, suo motu, in respect of any matter before it that power must be exercised judicially in respect of matters relevant and necessary for the determination of the dispute before the Court. Looking at the attitude of the Court in its request for counsel to address it as to whether the judgment given was a nullity or not in respect of the foreclosure order is in fact a request for the Court to reconsider its own judgment and if necessary to reverse it. This no doubt is wrong for at least two reasons. Firstly the trial Court should not raise or doubt the validity of its own judgment determination as to whether the learned judge has power to invite the parties to address him must be answered in the affirmative. The Court has power to request counsel to appear before it. This is different from the power to exercise jurisdiction on the matter under consideration.
This appeal therefore fails. It is hereby dismissed with N300 costs for the Respondents.
OGWUEGBU, J.C.A.: I agree.
TOBI, J.C.A: I have had a preview of the judgment of my learned brother. Nasir, P.C.A. just delivered and I agree with him. I just want to add this bit in support. A trial Judge has the right to raise issues in a matter before him suo motu. The right is however not open-ended. He has to exercise the right cautiously and only in the overall interest of justice in the case. He is required to hold the balance evenly in the adjudication process to vindicate his role as an umpire in the adversary system that we operate. See generally Commissioner for Works Benue State v. Devcon Ltd (1988) 3 N.W.L.R. (Pt. 83) 407; Governor of Gongola State v. Tukur (1989) 4 N.W.L.R. (Pt. 117) 592.
But once a Judge raises an issue, suo motu, he has to give an opportunity to the parties to react to it one way or the other. In other words, counsel should be given an opportunity to address him on the issue so raised. By this procedure he must have satisfied the audi alteram partem rule. See Maiyaki v. Maidoya (1988) 3 N.W.L.R. (Pt. 81) 226: Brown v. Adebanjo (1986) 1 N.W.L.R. (Pt. 16) 383: Adejumo v. David Hughes and Co. Ltd. (1989) 5 N.W.L.R. (Pt. 120) 146. Where a trial Judge, after raising an issue sun motif and in limine, gives judgment to one of the parties based on his own concept or conception of the legal position of the issue so raised without calling counsel to address him on same, the procedure will be a subject of appellate attack as it is definitely against the fair trial or fair hearing provisions of the constitution.
In the instant case the learned trial Judge, after raising sun motif the issue of the propriety of the court making a foreclosure order in the circumstances of the case, requested both sides to address him further on “this aspect to enable me make the appropriate orders.” The issue he raised sun motif may be wrong, but he took the correct procedure in the matter by calling counsel to address him. In my view, counsel was under some professional duty to respond to the call of the Judge. That he refused to so respond and took the legal process to appeal in the circumstances of the case is rather unfortunate.
And that takes me to the second issue and it is this. Was there a decision appealable within the meaning of section 277 (1) of the Constitution of the Federal Republic of Nigeria 1979′? By the subsection. which is the interpretation clause, a decision is defined, in relation to a court as “any determination of that court and includes judgment, decree, order, conviction, sentence or recommendation.” Was the invitation of counsel by the learned trial Judge a judgment” Was it a decree? Was it an order? Was it a conviction? Was it a sentence? Or was it a recommendation? Perhaps the closest to it is an order. But is the invitation really an order of a court of law as such? I think not. An order of a court is a command which has some element of finality. It also carries some element of coercion; the refusal to obey may result in some form of punishment.
Let me state here verbatim ad literatim the two telling sentences of the learned trial Judge:
“I think the proper approach is to call on counsel on both sides to address me further on this aspect to enable me make the appropriate orders. This is because the issue is being raised sun mote by the court – see Ugo v. Obiekwe and another (1989) 2 S.C.N.J. 95. (1989) 1 NWLR (Pt.99) 566.
That was what the learned trial Judge said. It was a very humble, innocent and apparently harmless statement. All he wanted was for counsel to address him further on the issue he raised suo motu. He did not mean any harm. He could be wrong in inviting counsel in the circumstances of the case. But that is a different kettle of fish altogether. It has nothing to do with counsel appearing before the learned trial Judge in obedience and address him.
In litigation, counsel is not expected to unnecessarily anticipate the next action of the court by way of breeding unnecessary suspicion. Somebody must have some confidence in the ability of the court to do justice to the parties. And one such person is counsel. In the instant case, counsel refused to appear before the learned trial Judge to address him on the issue because of his impression that, come what may, rain or sunshine, the learned trial Judge would give judgment or order against his client. That to be is an unfortunate speculation or conjecture which is not fair to the adversary or accusatorial system we operate. I do not want to say that it is not fair to the person of the trial Judge.
Least I forget, I posed some questions earlier on section 277 (1) as the subsection relates to the definition of “decision.” I have not provided an answer to the questions. Let me just do that now. In my humble view, the two sentences of the learned trial Judge I quoted above do not qualify as decision within the meaning of section 277 ( I ) and 1 so hold. See generally Western Steel Works Limited and Another v.. Iron and Steel Workers Union of Nigeria and Another (No. I) (1986) 3 N.W.L.R. (Pt.30) 617; Nwosu v. The State (1990) 7 N.W.L.R. (Pt. 162) 322; Williams v Daily Times (1990) I N.W.L.R. (Pt. 124) I. And since the invitation by the learned trial Judge to counsel to address him on the issue was not a decision within the meaning of section 277 (1) of the Constitution, no right of appeal lies in the matter within the meaning of section 220 (1) of the constitution. Accordingly, this court has no jurisdiction to entertain the so-called appeal,
For the above reasons and the fuller and abler reasons given in the leading judgment, I too will dismiss the appeal.
I too will award N300 costs in favour of the respondents.