Alhaji Ahmed Ya’u V. City Security Limited (2002)

LawGlobal-Hub Lead Judgment Report

VICTOR AIMEPOMO OYELEYE OMAGE, J.C.A.

The two issues formulated in the brief dated 18/5/01 by the appellant who was the defendant in the court below are;

“Whether from the provisions of order 23 rule 3 & 4 of the Kano State High Court Civil Procedure rules 1988 the trial judge was right to have suo motu formulated three issues and called upon counsel to address him on them instead of delivering his ruling for judgment or transferring the matter to ordinary cause list after considering the affidavit before him and submissions of counsel.

Whether the judgment delivered by the learned trial judge on 31st day of July 2000 in chamber instead of the open court can be said to be valid.”

In the brief of the respondent filed on 18/10/01. He proferred reasons for what he described as the propriety of the action of the learned trial court. The trial judge formulated three issues on which he called on the two counsel for either side to address the court on, in a hearing under the undefended list procedure. The respondent counsel submitted that:

“Once the trial judge, has called upon the counsel to address him on the issues, the trial court is eligible indeed empowered to formulate issue in order to effectually deal with the issues in the trial.”

The respondent counsel cited the decision in Bank of the NORTH V. ALHAJI IDAISU OJOBA LTD & 2 ORS (1993) 4 NWLR pt. 289, p. 597. Where Achike now JSC, wrote when he was in the court of appeal as follows;

“A trial court can suo motu raise a point in the court of trial provided it invites all the parties to make their imput in respect thereof.”

The respondent also quoted, Okunola JCA in the same case above, the statement of Justice Okunola quoted viz;

“If in the interest of justice a technical point is raised suo motu by the court as in the instant case the proper course open to the court is to invite all counsel to the suit to address the court on the point.”

The respondent also submitted as follows, that even if he concedes that the procedure adopted by the trial judge is wrong or irregular in that the judge formulated issues and invited the parties counsel to address him on those issues as the appellant has consented to the and participated in the procedure which is merely wrong or irregular he cannot be heard to complain on appeal because the trial was against him. On the second issue formulated by the appellant the appellant in his reply brief agreed that the issue that the judgment was irregular which the trial court delivered in chambers. The appellant however asked the leave of court to withdraw the second issue. The appellant did this when it became clear to him upon reading the respondent brief which denied that the judgment of the court was delivered in chambers. Issue two is therefore struck out. There remains for resolutions in this appeal only issue one which on which I shall express my opinion presently. It is necessary now to relay the facts which caused the filing of the appeal. The printed record in this appeal shows that the appellant was by the judgment of the Kano State High Court coram Adamu Judge, a judgment debtor. The judgment of the court is for the sum of N1, 901680. 82 with interest and costs ordered.

The liability arose from the transaction of a short term credit facility of N2 million granted by the respondent of the appellant. The printed record shows when the time to pay accrued, the respondent demanded repayment of the money but the appellant defaulted but pleaded for time of 40 days of grace which the respondent allowed. The appellant did not deny owing the respondent, and as the appellant had written a letter to respondent dated 10th March, 1999, the respondent commenced proceedings against the appellant in the Kano State High Court for the recovery of the balance due of N1, 901,680.82. The proceedings were commenced under the undefended list procedure of order 23, of the Kano State Civil Procedure Rules and its rules of the Kano State Civil Procedure rules. With the leave of the court, the now respondent, then the plaintiff claim against the defendant now the appellant was placed on the undefended list suit. The defendant filed a notice of intention to defend. In the course of presentation of the affidavit evidence of the plaintiff and after stating the reasons why the Plaintiff was entitled to judgment and after the reply of the defendant, the learned trial ruled thus;

“Issues the court invites the parties to address on the following issues either today or on Friday so that ruling may be given on Monday 31/7/2000. Whether res judicata will not prevent the defendant from claiming the proper value of his share certificate? In early case of IJALE V. LEVANTIS (1965) 1 ALL NLR 176 at 180.

(2) The plea of res judicata applies except in special cases not only to facts in issues upon which the court is required by the parties to decide on but the very fact which relates to the fact in issue brought forward at the time.

(3) Where there is some difficulty in holding that a previous judgment is conclusive evidence under section 54 of Evidence Act such a judgment may be relevant under section 49 of Evidence Act.”

The learned trial court is shown in the printed record to supply legal authorities to each of the issue formulated by him above, on which he invited each counsel to address him in a proceedings under the undefended list.

It is the formulation by the trial judge of the issues stated above at the opening of this judgment, against which the appellant appeals.

It is the submission of the appellant that at the hearing in the proceedings under the undefended list, the duty of the court, where leave has been granted for the claim to be so placed is to decide on the affidavit evidence filed by both parties whether or not the case should be summarily determined or whether the claim of the plaintiff, should be contested in the general cause list, upon the defence deposed to by the defendant. The respondent in its brief does not deny the submission of the appellants but submitted that the trial court has the right even the duty to formulate issues in order to effectually determine the issues in dispute between the parties. Secondly, the respondent submits that the proceeding where the learned trial judge formulated issue for determination, and invited the counsel to address him was only an irregularity or wrong at the most. Since the appellant had participated in the proceeding without objection he is estopped said the respondent counsel from protesting against it.

It is evident that the respondent’s submission which compares proceedings under the undefended list with a regular trial of facts is misinformed. Proceedings under the undefended list are a hearing. In my view the only issue to be determined is whether liability exists or not and an order to pay if it exists. If there is any conflict in the evidence tendered, proceedings must go to trial. It is therefore not a trial when rights are declared under the undefended list. The proceedings end and it is concluded, where the defendant thereto has no defence or where the court is satisfied that the defendant has no triable defence or in any case in the alternative where the plaintiff’s claim does not disclose a viable claim. Such a claim must be on a liquidated money demand from the defendant. Put in another way it means a definite settled sum, which the defendant cannot deny. In my understanding of the provisions of the rule, except where the issue of interest has been previously agreed upon where the interest payable is contestable, the issue of interest may be sent for resolution on the general cause list if the judgment had been ordered where no triable defence exist. Therefore on the hearing on the undefended list procedure either hearing ends where the defence of the defendant has no merit, and judgment is awarded to the plaintiff, or the claim is sent for trial on the general cause list. The jurisdiction of the court is limited to a liquidated money demand. See M. M. GOMBE V. P. W. NIG LTD. & ORS (1995) 7 SCNJ 19. In the alternative, if the defence shows merit, a dispute has arisen, the case should be sent to the general cause list for trial. See F.M.G. V. SANI (1990) 4 NWLR Pt. 147 at 699. The complaint of the appellant simply put on issue one is founded on a judgment being awarded to the plaintiff when the defendant has offered a triable defence. It was on the basis of the defence tendered at the hearing that the presiding judge felt compelled to formulate issue for determination. When the judge had to formulate issues the dispute was better placed in the general cause list for trial.

The implication of the situation in my view is that the judge acknowledged that a dispute has arisen, which he sought to resolve at that stage. In doing this the judge was wrong. Well the judge in that proceeding is not possessed of a judrisdiction to resolve the issue in a hearing under the undefended list. If the judge felt as he did the need to formulate issues on which he sought the address of counsel, he must send the case for trial under the general cause list. It is in the failure of the trial judge to comply with provisions of order 23 Kano State Civil Procedure Rules that he rendered the judgment of the court a nullity because the judge did not comply with the rules under which he acted, order 23, rules 2&3. There is no doubt that the complaint of the appellant is founded on technicality, and it is an established rule; See NWOSU V. IMO STATE ENVIROMENTAL SANITATION AUTHORITY (1990) 2 NWLR Pt.135 at 717, that the court should not prevent undue technicality to becloud its sense of true justice on merit. It is also true that the rules of court must be obeyed See HON KALU ANYA V. AFRICAN NEWSPAPER (1980) 7 SCNJ at 57. To ignore the rules is to stultify the provisions made by the legislation which is not the concern of the judge. See also MOHAMMED V. KAYODE (1977) 11 NWLR Pt. 530 at 578. On the need of court to obey the rules of the court.

It is trite law that words of legislation such as provided in order 23 of the Kano State Civil Procedure Rules, must be given its ordinary meaning See OLANREWAJU & ORS V. AREWA & ORS (1998) 11 NWLR Pt. 573 at 244. In response to the respondents submission that the appellant is estopped from complaining having participated in the hearing. It is settled law that parties cannot agree to confer jurisdiction on a court which does no possess it CHARLES EYOBE V. NWANKWO 16, SCNJ.

In proceedings under the undefended list, as in the instant case, once the defendant raises a substantial issue of fact or law in his affidavit it is not the duty of the court to determine the issue at that stage. See AGRO MILLERS LTD. V. C.M.B. (1997)10 NWLR Pt.525 at 477. (ii) DANIEL V. SOMAD NIG. LTD, (1997) 7 NWLR Pt. 514, 673. If as in the instant appeal the court proceeds at the stage to seek to determine finally the issue and produce a final judgment instead sending it to the general cause list, where the defendant has tendered a good and triable defence, the judge ceases to have jurisdiction on the claim under the undefendant list rule, because he has breached the rules of order 23 of the Kano State Civil Procedure Rules. His final judgment thereon becomes a nullity. In consideration of the above, I am of the view and so rule that the trial before Adamu J. of the Kano State High upon which the appeal is made is inconsistent with the provisions of order 23 of the Kano State Civil Procedure Rules it is therefore a nullity.

I hereby set aside the proceedings and direct that the claim be heard before another judge in Kano.

I make no order for costs.

Other Citations: 2002)LCN/1151(CA)