Alhaji Raji I. Akinwale V. Bank of the North (2000)
LawGlobal-Hub Lead Judgment Report
ONNOGHEN, J.C.A.
This is an appeal against the judgment of the Kwara State High Court of Justice holden at Ofa in suit No KWS/OF/2/91 delivered by Hon. Justice R.O. ELELU-HABEEB on the 16th day of September, 1991 in which the learned trial Judge entered judgment for the respondent under the undefended list procedure.
The facts of the case as can be gathered from the record are that on the 21st day of January, 1991 the respondent caused a writ of summons to be issue under the undefended list together with an affidavit as required by the rules, for the recovery of liquidated money demand arising from credit facilities granted to the appellant upon his request together with interest thereon amounting at the time to N45,519,96.
The writ was duly issued signed by the registrar and served on the appellant who, thereafter engaged counsel who filed a motion for leave to enter appearance out of time.
On the 17th day of April, 1991 when the matter came up for hearing counsel for both parties were present and the appellant’s counsel withdrew the application for leave to enter appearance out of time and requested for an adjournment to file a notice of intention to defend the action as required by the rules of court. The application was granted and the matter adjourned to 19th June, 1991 for hearing.
However, for reasons not apparent on the record the matter came up for hearing on the 16th of September 1991 and both counsel were present. On that date, learned counsel for the appellant rather than file the notice of intention to defend the action with an affidavit disclosing a defence argued a motion for an order setting aside the writ of summons for non-compliance with order 23 in content form. That the purported writ was signed by an agent of the appellant. That there was no application made to the court but that it was made to the registrar contrary to Order 23 of the Kwara State High Court (Civil Procedure) Rules (hereinafter referred to as the High Court Rules (1989). That since they had decided to challenge the writ, that is why they did not file the notice of intention to defend the action.
The court found no merit in the application to set aside the writ of summons and dismissed same consequent upon which learned counsel for the respondent asked for judgment since there was no affidavit disclosing a defence to the action which was for hearing that morning. In the alternative learned counsel asked for cost.
On the other hand learned counsel for the appellant argued that their failure to file notice of intention to defend was not due to neglect to comply with the rules but on reliance of the rules contained in order 2 rule 1(1)(2) and Rule 2 of the High Court Rules 1981. He urged the court to adjourn the matter for hearing.
In its ruling the lower court refused the application for adjournment and entered judgment for the respondent.
Being dissatisfied with that judgment, the appellant has appealed to this court on four grounds of appeal. See pages 14 and 15 of the record, out of which learned counsel for the appellant J.O. Ijaodola, Esq. in his brief of argument filed on 24/1/95 has formulated three issues for determination as follows:
“i. Was there a valid application for a writ when the application was unsigned and it was on a foolscap typing paper and not on a printed form and the marking as undefended list was made by the registrar without authorisation by the court.
ii. Was the purported writ properly classified when it required defendant to enter appearance within 8 days, and
iii. Was it right of the trial court to have refused the application for an adjournment in the circumstances of this case.”
It is necessary, at this stage, to reproduce the grounds of appeal since there is a preliminary objection against some of the grounds in this matter. The grounds of appeal are therefore as follows:
“GROUND OF APPEAL
- The learned trial Judge erred in law in refusing the motion on notice and giving judgment summarily thereafter.
PARTICULARS OF ERROR IN-LAW
i. It was error in law for the trial court to have refused the application which was not frivolous.
ii. Order 23 of the High Court (Civil Procedure) Rules 1989 ought to have been religiously followed.
iii. The decision of the trial court is a nullity in that it violates Order 23 rule 1 of the said rules of court.
- The learned trial Judge erred in law in holding that the matter was still under the undefended list despite the serious issues raised in respect of the typed (and not printed) foolscap paper and which was not signed by the plaintiff or its agent and the court (not the Registrar) did not authorised (sic) the placing of the matter on the undefended list.
PARTICULARS OF ERROR IN-LAW
i. Order 5 rule 7 of the High Court (Civil Procedure) Rules 1989 was violated.
ii. No valid application was presented and it was the registrar (and not the court) which endorsed the papers filed as being “undefended list.”
- The learned trial Judge erred in law in not holding that page 1 of the filed document which asked the defendant to enter an appearance within 8 days of service of the purported writ was contrary to order 23 rule 3 of the High Court (Civil Procedure) Rules 1989.
PARTICULARS OF ERROR IN-LAW
i. The purported writ of summons was in the content of an ordinary writ.
ii. The learned trial Judge erred in law in not adjourning the case after the ruling on the motion to set aside the purported writ on the undefended list.
PARTICULARS OF ERROR IN-LAW
i. The court’s discretion was not judicially or judiciously exercised.
The application for an adjournment ought to have been granted.
As stated earlier in this judgment, learned counsel for the respondent, Mahmoud Gafar Esq., had, on the 4th day of August, 1998 filed a notice of preliminary objection to the competency of the grounds of appeal in the following terms:
“GROUNDS OF OBJECTION
- Ground 1 is vague and contains no particulars of error.
- Ground 2 is an amalgamation of errors lumped together and also raised independent complaints in its particulars.
- Ground 3 raises issues not canvassed at the trial.
- Ground 2 relates to an interlocutory decision of the court refusing an application to set aside the writ of summons and no leave was obtained.”
As required by the rules of this court arguments on the preliminary objection was incorporated in the respondent’s brief of argument filed on 1/2/2000 by leave of court.
In his submission on the objection to ground one of the grounds of appeal, learned counsel to the respondent submitted that the said ground as couched is very vague in the sense that it just alleges that the trial court erred in law in refusing the motion and giving judgment thereafter summarily.
That a ground of appeal must attack a specific ratio of the decision challenged. That it does not isolate any particular error of the trial court for attack. He referred the court to C.C.B. v. Nwokocha (1998) 9 NWLR (pt.564) 98.
That since the ground is vague, there is no need to have any recourse to the particulars since Order 3 rule 2(4) of the Court of Appeal Rules is directed at the ground not at the particulars. Learned counsel then urged the court to strike out the ground as being incompetent.
During the oral hearing of this appeal on 2nd May, 2000 learned counsel for the appellant’s attention was drawn by this court to the fact that he has filed no reply brief in reaction to the respondent’s brief and he confirmed same and stated that his grounds of appeal are explanatory enough.
I have already reproduced the grounds of appeal in this matter. I have gone through the grounds over and over again. Order 3 rule 2(4) of the Court of Appeal Rules provides as follows:-
“(4) No ground which is vague or general in terms, or which discloses no reasonable ground of appeal shall be permitted, save the general ground that the judgment is against the weight of evidence, and any ground of appeal or any part thereof which is not permitted under this rule may be struck out by the Court of its own motion or on application by the respondent.”
It is clear from the provisions of sub rule 4 of rule 2 of Order 3 quoted above that the provision is mandatory. When one looks at ground one of the grounds of appeal it is obvious that it is very general in terms and thereby vague. No particular ratio of the decision of the lower court is being attacked therein.
Under the rule of this court, the only general ground of appeal permitted is what is normally referred to as the omnibus ground of appeal, that is, that the judgment is against the weight of evidence, in civil appeals.
I agree with learned counsel for the respondent that there is no need to have a recourse to the particulars of error provided since Order 3 rule 2(4) is directed at the ground not the particulars.
I am of the view that particulars of error are not independent of the main ground of appeal they rise or fall with the main ground of appeal. Therefore, if a ground of appeal is incompetent in law, there is nothing that can sustain the particulars.
That apart, when one looks closely at the particulars supplied it becomes very clear that they do not relate to the ground of appeal in any way:- See C.C.B. v. Nwokocha (1998) 9 NWLR (Pt.564) 98; Bala v. Bankole (1986) 3 NWLR (pt.27) 141.
For these reasons I hold that ground one of the grounds of appeal is vague and therefore incompetent and is accordingly struck out.
As regards ground two of the grounds of appeal, learned counsel for the respondent has submitted that the said ground relates to an interlocutory decision of the trial court and since no leave to appeal was obtained, the ground is incompetent, learned counsel concedes that the appellant is entitled to combine the appeals in respect of the two decisions but contends that he still has the duty to seek and obtain leave in relation to the interlocutory appeal. He therefore urged the court to hold that the ground of appeal is incompetent.
It is very clear from the record and the facts of this case that ground two of the grounds of appeal attacks the interlocutory decision of the lower court. This is an established fact. Apart, from that ground of appeal being on an interlocutory decision, it is also of mixed law and fact you cannot do justice to that ground, without coming to a decision whether the writ was typed on a foolscap paper and not printed; whether it was signed or not signed by the plaintiff or its agent and whether it was the court and not the registrar who authorised the placing of the suit under the undefended list.
It is therefore my considered view that the fact that the ground of appeal complained of is of mixed law and fact makes it very mandatory for the appellant to seek the leave of the court before that ground can be competent. In the case of Ayalogu v. Agu (1998) 1 NWLR (Pt.532) 129 this court held, per Salami, J.CA, at page 141 as follows:-
“The three grounds of appeal, that is to say grounds 2, 3 and 4 of the grounds of appeal were filed in respect of the interlocutory decision of Onyia J., given as a court of first instance. An aggrieved party can only appeal, if the grounds of appeal are of law as of right within 14 days of the decision but if the ground is of fact or mixed law and fact the aggrieved party would only appeal with the leave of this court or the court below within 14 days. For the appeal to be valid leave must be sought and the notice of appeal filed within 14 days of the ruling.”
I agree entirely with the statement of the law as quoted supra. The position of the law being what it is, it is my view that ground two of the grounds of appeal being a ground on the interlocutory decision of the lower court and being on mixed law and is incompetent since no leave of either the lower court or this court was obtained before filing same. The ground is therefore struck out.
In relation to ground three of the grounds of appeal, learned counsel for the respondent argued that it relates to an issue which was not canvassed at the trial court and that the leave of this court has not been obtained before filing same. That the issue of being ordered to appear within 8 days is a fresh issue which can only be raised after leave of the court has been obtained. He urged the court to hold that this particular ground is incompetent and to strike same out.
I have gone through the record of appeal carefully and I confirm that the appellant did not contest the issue of having been ordered by the writ of summons to appear in court within 8 days neither did the lower court consider that matter in its ruling subject of this appeal. That being the case, it is very obvious that the issue being raised in the ground of appeal is a fresh issue for which the leave of this court is needed. It is true from the record that no such leave was sought for by the appellant neither did this court grant him any. I therefore agree with learned counsel for the respondent that this ground of appeal is incompetent in law: See Nigerian Breweries Ltd v. Obioha (1999) 6 NWLR (Pt.605) 115 at 131.
Consequently, ground three of the grounds of appeal is therefore struck out. In short the preliminary objection of the respondent is meritorious and is therefore sustained.
What is now left of the appeal is ground four and the issues formulated therefrom. This is contained in the appellant’s brief of argument on issue No.3
On this issue, learned counsel for the appellant submitted that it was improper of the learned trial Judge to have given summary judgment as at pages 21-22 of the record.
Learned counsel referred to page 17 of the record and stated that on 17/4/91 the matter was adjourned to 19/6/91 but the matter came up for motion to set aside the writ on 1619/91 which application was heard and dismissed. That it was obligatory for the court to fix another date for hearing in the circumstances of the case. He then urged the court to allow the appeal.
On his part, learned counsel for the respondent treated the matter as issue No. 2 in his brief of argument.
He stated that the matter was taken in undefended list and that the appellant failed to file a notice of intention to defend the action as he undertook but rather a motion to set aside the writ which was refused. That at that stage what was left for the court to do was to enter judgment since there was no notice of intention to defend. Learned counsel referred to the case of Franchal (Nig.) Ltd. v. NAB. Ltd. (1995) 8 NWLR (pt.412) 176 at 188.
That after granting the earlier adjournment for the appellant to file notice of intention to defend which he failed to utilise, it would amount to condoning abuse of court process to grant the appellant another adjournment five months after he had obtained an adjournment to do the same thing.
That the appellant has not said why the lower court’s exercise of discretion is wrong thereby making it necessary for this court to interfere. He cited the case of University of Lagos v. Aigoro (1985) 1 NWLR (Pt.1) 143. He therefore urged the court to dismiss the appeal.
I have gone through the record and the briefs of argument in this appeal. I had earlier on in this judgment reproduced the facts of this case.
Proceedings under the undefended list procedure, are very special and unique in that they are designed to enable a plaintiff in an action for a liquidated money demand to obtain judgment in the shortest possible time where the defendant has no defence to the action.
The facts of this case show that the matter was originally adjourned to 19/6/91 for hearing by consent of both counsel and the court but was not heard till 16/9/91 when the motion for setting aside was heard and dismissed and the court proceeded there and then to hear the substantive case originally fixed for hearing on 19/6/91. It heard it and entered judgment same day. I know by order 23 rule 3(1) of the High Court Rules 1989 the appellant ought to have filed his notice of intention to defend together with the affidavit disclosing a defence not less than five days before the date fixed for hearing but could still have taken steps to put his house in order. For instance, by the provisions of Order 22 rules 3(1) of the High Court Rules, 1989:
“The High Court may, on such terms as it thinks just, by order extend or abridge the period within which a person is required or authorised by these provisions or by any judgment, order or direction, to do any act in any proceedings”.
See also order 22(3)(2) which provision clearly confers a right on the appellant under the circumstances to present application for appropriate orders to remedy the situation. By the lower court refusing the application for adjournment it denied appellant that opportunity which is unequitable.”
That apart, I do not understand the learned counsel for the respondent as saying that because undefended list proceedings are very unique and technical the normal process of objections such as to the writ of summons, as in this case, cannot be raised, and if raised and overruled the party raising same cannot be allowed to put his house in order thereafter. In the first place, the objection by the appellant challenged the jurisdiction of the lower court to hear the matter on the ground that the matter was incompetent. By order 2 of the High Court Rules 1989 the appellant has the right to apply to the court for an order setting aside any proceeding etc in which there is a failure to comply with the requirements of the rules, whether in respect of time, place, manner, form or content or in any other respect provided that the application is made within a reasonable time “and before the party applying has taken any fresh step after becoming aware of the irregularity.”
It is my considered view that filing of a notice of intention to defend together with an affidavit disclosing a defence to the action after the appellant became aware of the alleged irregularities in this matter and without the court deciding on the application by way of objection would have amounted to a waiver of the right to complain against the irregularity.
In view of the facts and circumstances of this case I am of the view that the learned trial Judge ought to have granted the adjournment sought by learned counsel for the appellant particularly as learned counsel for the respondent had requested in the alternative, for the cost of the adjournment. I am also of the view that the award of cost would have better met the justice of the situation than the wielding of the big stick. The adherence to technical justice has resulted in more injustice than justice considering the number of years it has taken so far; judgment was entered on September 16, 1991 now we are in July, 2000 and the matter has not ended.
In conclusion, I am of the opinion that the learned trial Judge did not exercise his discretion to adjourn or not to adjourn the matter on the 16th day of September, 1991 judicially and/or judiciously and thereby making it possible for this court, being a court of appeal, to interfere with that exercise. Accordingly, I am of the view that there are merits in the surviving sole ground of appeal and the issue formulated therefrom to necessitate the appeal being allowed. I accordingly allow the appeal.
It is further ordered that the judgment of the Kwara State High Court in Suit No. KWS/OF/2191 delivered by Hon. Justice R.O. Elelu-Habeeb on the 16th day of September, 1991 under the undefended list against the appellant be set aside and the matter remitted to the High Court of Kwara State for retrial de novo before another Judge.
Parties to bear their costs.
Appeal allowed.
Other Citations: (2000)LCN/0862(CA)
