Chief Mike Okpere & Anor V. Alhaji Garba Musa Rugoji & Anor (2002)

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VICTOR AIMEPOMO OYELEYE OMAGE, J.C.A.

 In this appeal the appellant who is the judgment debtor is dissatisfied with the judgment of Funtua High Court Coram Ibrahim M. Bako in suit No. KTH/FT/6/2000. The appellant filed four grounds of appeal, and formulated four issues which read as follows;

“Whether the learned trial court had jurisdiction to proceed to the hearing of the suit on 31st July, 2000 as it did when same was fixed for mention on the date by the Registrar of the trial court.

(2) Whether the learned trial court had jurisdiction to entertain the suit under the undefended list procedure when no writ was issued and so marked in this suit in compliance with order 22 rule 1  of the High Court Civil Procedure rules of Katsina State.

(3) Whether the learned trial court was right to have disregarded the motion on notice dated 12th August, 2000 duly filed in the trial court in which the first appellant was asking amongst other things for orders setting aside of the proceedings of 31st July, 2000 and for leave to argue the notice of preliminary objection dated 9/6/00 challenging the jurisdiction of the trial court to entertain the suit without first resolving the question of its jurisdiction in the suit.

(4) Whether the judgment in this suit against the 2nd appellant is valid in view of the fact that no writ of summons or other originating processes as the trial court was were served on it without first resolving aforesaid was entered against it.”

Before I reproduce the respondents issue for determination, I wish to comment on issue three of the respondent and to consider whether the said ground three is an innocous as it looks. The said issue three refer to the preliminary objection filed by the appellant as respondent/applicant in the court below. The objection is on an interlocutory issue. It is a preliminary objection seeking to set aside the proceedings in the court below. In the ruling of the court below on 21/9/2000, See pages 18 and 19 of the printed record, the court discountenanced the appellants prayer for failure of the applicant to appear in court to move the motion. Instead the court ruled in favour of the respondent on 21/9/2000. The printed record shows that the notice and the grounds of appeal was filed on 27/9/2000. It is therefore within time to have filed an appeal on the interlocutory order in the event the inclusion of the complaint on the ruling in the appeal is properly filed. I make that observation to set the record straight, as it appears that complaint on the ruling is enbodied is issue 3 of the appellant. The procedure also accords with the procedure recommended by Ekpe JCA in his decision reported in 2002 7 NWLR (pt.765) P.25 that an interlocutory appeal should await the final judgment. In the respondents brief he adopted the issues formulated by the appeal but submitted different reasons for the said issue. Before I state the facts of the case, I am of the view that the case turns only on the issue of non compliance with the rules of the Funtua High Court on undefended list procedure, I quote here the relevant provisions of the rules of order 22, rules 2 & 3of the Katsina High Court Civil Procedure rules on undefended list, which rules are applicable in Funtua.

(2) “There shall be delivered by the plaintiff to the Registrar upon the Issue of the writ of summons as aforesaid as many copies of the above mentioned in the affidavit as there are parties against whom relief is sought and the Registrar shall annex one such copy to each copy of the writ of summons for service.”

3(i) “If the party served with the writ of summons and affidavit as provided in rules 1 & 2″ etc delivers to the Registrar etc the court may give him leave to defend etc.”

It is when the party the defendant is served with a writ of summons and other documents that proceedings in an undefended suit may be said to commence.
The rules under the undefended list are clear in my view that the party to be served the defendant must be served the writ of summons with other documents i. e. affidavit of the applicant showing that respondent has no defence.

(iii) Order of the court placing the writ on the undefended list. It is clear to me that it is the writ of summons which is placed on the undefended list, not the bare order. The order does not commence proceedings without a writ. Besides under the Katsina High Court Civil Procedure which is applicable in Funtua, the form of commencement of action is contained in order 1 of the said rules.

No other method beyond those recording therein may commence a suit in the court of law. It will not matter if the writ of summons is in the courts file it should reserved on the defendant. The facts in this appeal which I now state beneath will show that the suit in this appeal did not commence. Which since the writ of summons was not served. Here are the facts which in this appeal encapstulates the complaints of the appellant. The respondent made an application under the rules of court in order 22 rule of the Civil Procedure Rules Katsina State for the issue of a writ of summons against the appellant hereunder the undefended list procedure.
The court did not issue the writ of summons, instead the court marked the plaintiffs application for the issue of the issue of the writ “undefended.”
No writ of summons was issued or attached to the order served on the defendant.
The court in purported compliance with the rules under order 22, Katsina State Civil Procedure rules attached to the application to issue a writ the affidavit intended to support the writ, showing that the defendant has no defence, and despatched these to the appellant without a writ of summons. I repeat; no writ was issued and served on the appellant. The sum of money being claimed by the respondent is N3,255.678.00. Upon the service of these documents on the appellant, he filed, a notice of objection, the trial court proceeded to adjourn the motion for ruling after hearing the respondents.
Subsequently, on the due date, the court delivered it’s judgment and awarded judgment in favour of the respondent for the sum of three million two hundred and fifty five thousand six hundred and seventy eight naira. The two respondents/defendants filed notice and ground appeal from which they formulated the issues as recorded above. In my view, issue 2 deals with and determines the vital issue in the appeal. It reads;-

“Whether the learned trial court had jurisdiction to entertain the suit under the undefended list procedure when no writ was issued and so marked in this suit in compliance with order 22 rule 1 of the High Court Civil Procedure rule of Kano State.”

In his response to the appellants issue two, the respondent admitted that no writ was issued in the proceedings and listed the processes served on the appellant as follows:

(a) “An application for the issuance of a writ of summons under the undefended list.

(b) The court order placing the suit under the undefended list and to serve the court processes on the appellant out of jurisdiction.

(c) A duly sworn affidavit attached to the application for summons under the undefended list disclosing the claim against the appellant together with several annexures.”

The respondent asked whether the above do not disclose sufficient information to the appellants that the suit initiated against the defendant by the plaintiff shows a valid claim. In the face of the respondent admission that no writ was issued in the proceedings there is no further need to belabour the appeal. The error is admitted. However it is worthwhile to consider the respondents submission. Below is the submission of the respondent in his brief in answer to the question raised above by the appellant on the issues raised. The Respondent submitted that it is true that order 22 rule 1 of Katsina State High Court Civil Procedure rules of 1987 provides that a writ of summons in respect of a matter to be placed under the undefended list must be issued by the trial court. There must exist a writ of summons for him to issue with the order to place the writ on the undefended list for hearing. This is the rule of court and rules of court are meant to be obeyed that is why they are written. In the given case though a writ was filed no writ of summons was issued for service with the affidavit on the respondent.

The respondents submission is a “non a sequitor when he submitted thus “but then there must be a caveat to the effect that obedience (to the rules) cannot or should not be slavish to the point that justice of the case is destroyed or thrown overboard.”

The respondent does not appear to appreciate the enormity and consequences to his claim, of the absence of the writ of summons in the proceedings.
Without a writ of summons or another form of commencement of a suit prescribed by the rules of court served on the defendant there is no claim before the court whatever. In the suit in the court below the application which purported to order the issue of a writ of summons is not a writ of summons because the writ of summons is in the courts file. Nothing therefore was before the court below and no claim exists on which the judgment purported to have been delivered by Ibrahim M. Bako J. of the Funtua High Court on 21/9/2000 exists.
It is a judgment without a claim. At no time was the writ of summons served on the appellant. In my view the alleged proceedings is a nullity.

In this appeal, in the face of the admission by the respondent of the situation of the proceedings in the court below as being wrong in fact and in law, the appeal succeeds and the proceeding before Bako J. is set aside. As there was no judgment delivered by Bako J. being that no proceedings was commenced in the Funtua High Court with a writ of summons between the appellant and respondent there can be no decision made by the court as the so called proceedings was a no decision made by the court as the so called proceedings was a non stater. A non sequitor. The proceedings will not abide. It is a nullity. There is no need to consider the other issue in this appeal, as issue 2 has terminated the so called hearing in the court below. The proceedings on 21st September, 2000 is set aside and the appeal succeeds.
The appeal is allowed. I make no order for costs.

Other Citations: 2002)LCN/1217(CA)