Chief S.S. Obaro Vs Alhaji Sale Hassan (2013)

LAWGLOBAL HUB Lead Judgment Report

E ARIWOOLA JSC

This is an appeal against the decision of the Court of Appeal, Abuja Division, herein after called. Court below, delivered on May 2nd, 2003. The appellant was the plaintiff while the respondent was the defendant before the trial court. The court below had allowed the respondents appeal against the decision of the trial court. The facts of the case that led to this appeal are as follows:

The appellant had commenced an action before the High Court of the Federal Capital Territory, holden at Abuja with a motion exparte by which he sought the following reliefs:

“1. Granting plaintiff/applicant leave to issue the Writ of Summons in this suit for service out of the jurisdiction of this court, to wit: for service on the defendant at 202, Gangare, Jos, Plateau State of Nigeria, and a further order that the Writ shall have endorsed thereon:

‘THIS SUMMONS IS TO BE SERVED OUT OF THE FEDERAL CAPITAL TERRITORY, ABUJA AND IN PLATEAU STATE.’

2. Entering this suit for hearing in the ‘undefended List’ and marking the Writ of Summons, and entering thereon a date for hearing accordingly,
3. Deeming the Writ of Summons filed with this application as having been properly and regularly filed the requisite filing fees in respect thereof having been duly and fully paid.
4. Granting leave for service of the Writ of Summons and all other processes in this suit on the defendant through his present counsel/agent, Prince Orji Nwafor – Orizu of suite 68, Cornerships, Area 7A, behind Cultural Centre, Garki, Abuja and such service to be deemed proper service on the defendant.

And for such further or other order(s) as to this Honourable Court may deem fit and just having regard to all the circumstances of this case’

In support of the application exparte was an affidavit of 22 paragraphs. Attached to the affidavit are documents marked Exhibits SS01, SS02, SS03, SS04 and SS05 respectively.

On page 12 of the record of appeal is a specially endorsed writ of summons dated 15/5/2000 and signed on the same date. Endorsed on the top of the said writ of summons is the following:

‘THIS WRIT IS FOR SERVICE OUT OF THE JURISDICTION OF THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY, ABUJA AND IN PLATEAU STATE, NIGERIA PURSUANT TO COURT ORDER DATED 23rd DAY OF MAY, 2000.’

On 23rd May, 2000 the appellant had moved his exparte application under Order 5 rule 14, Order 23 rule 1 and Order 12 rule 5(b) of the High Court (Civil Procedure) Rules and under section 97 of Sheriffs and Civil Process Act, Cap 407, Laws of the Federation of Nigeria, 1990.

Upon hearing the application, the trial High Court granted the prayers sought in the following terms enrolled on page 16 of the record.

‘The application is HEREBY GRANTED as prayed. Leave is HEREBY GRANTED to the plaintiff/applicant to issue and serve the defendant with the writ of summons and all other court processes in Plateau State an area outside the jurisdiction of this Honourable Court. The Writ of Summons is also marked under undefended List.

Leave is granted to the plaintiff/applicant to serve the writ of summons and other court processes on the defendant through his counsel/agent ‘Prince Orji Nwafor – Orizu and this service shall be deemed proper service on the defendant. Case adjourned to 10th July, 2000 for hearing. Given under the hand and seal of the honourable High Court Judge dated this 23rd day of May, 2000.’

The appellant had claimed on the specially endorsed Writ of summons against the Respondent as follows:

‘The Plaintiffs claim against the defendant is for N5,770,875.00 being professional fees together with interest thereon up to 15th May, 2000 and interest thereon thereafter.

PARTICULARS OF CLAIMS

1(i) Settlement of Bill of Professional charge dated 31/1/97 and served on the defendant on the same date for professional legal services rendered to Defendant at his request by plaintiff as counsel in Suit No. FCT/HC/CV/566/97: Alhaji Sale Hassan Vs. Alhaji Jibrila Jauro at the Federal Capital Territory High Court, Abuja between 1994 and 1997 N2,805,000.00.

(ii) Interest thereon at the rate of 21% per annum effective from 1st March, 1997 up to 15th May, 2000 N2,865,325.00

2(i) Settlement of Bill of Professional charges dated 18th November, 1999 and served on the defendant on 20th November, 1999 for professional legal services rendered to defendant at his request as counsel in connection with Appeal No. CA/A/25/99: Alhaji Sale Hassan Vs. Alhaji Jibrilla Jauro, at the Court of Appeal, Abuja between 1997 and until defendant, purportedly terminated Plaintiffs retainer in November 1999…………… N1,012,000.00.

(ii) Interest thereon at the rate of 21% per annum effective from 20th December, 1999 up to 15th May, 2000………………N88,550.00

N5,770,875.00

3. Interest at the rate of 21% per annum on the total outstanding claims at 15th May, 2000 until judgment is given in this suit and thereafter at the rate of 10% on the judgment debt and costs until the same is fully paid and satisfied.’

Sometime on 31st May, 2000, the defendant had filed a motion on notice seeking from court the following:

‘1. Order of Court striking out the writ of summons served on the plaintiff marked ‘Undefended List’ for being irregular and incompetent as there is no affidavit verifying the facts to be tried as ‘Undefended List’.

2. Order of the court dismissing or striking out the suit for non-compliance with the conditions precedent for filing of an action for recovery of professional fees by a legal practitioner under the Legal Practitioners Act.
3. Any such further or other orders as this Honourable court will deem fit to make in the circumstances.’

The application was supported by an affidavit of 12 paragraphs. In opposing the application, the respondent filed a counter affidavit of 7 paragraphs on 10th July, 2000.

On the return date of 10th July, 2000 when the matter came up for hearing, the respondent drew the attention of the court to his preliminary objection earlier referred to in this judgment. Notwithstanding the initial objection to the hearing of the respondents application, the trial court took the application and adjourned for ruling on 24/07/2000.

In its ruling, the trial court refused the prayers sought by the respondent and proceeded to give judgment pursuant to Order 23 rule 4, High Court (Civil Procedure) Rules. The trial judge held as follows:

‘This case was placed under the undefended Cause List. Instead of filing their (sic) Notice of Intention to defend before the return date which was fixed for 10/l/2000(sic) the learned counsel for the defendant filed a Motion on Notice seeking court to strike out and or dismiss the case for being incompetent. The Court has ruled against the motion hence the court is left with no alternative than to rely under (sic) Order 23 Rules 4 by giving judgment in favour of the plaintiff as the case has not been removed out of the Undefended Cause List. The judgment is therefore hereby entered in favour of the plaintiff as per his claim against him.

The endorsed claim No. 1 and 2 are hereby granted with 10% interest from 20/12/99 to 15/5/2000 and at 10% from today till the amount is finally liquidated.’

The respondent on 3rd August, 2000 filed a Notice of Appeal of six grounds against the decision of the trial High Court delivered on 24/7/2000. The judgment of the Court below, Abuja Division on the appeal delivered on 2/5/2003 which allowed the appeal, led to the instant appeal, by the appellant who was the plaintiff before the trial Court.

Pursuant to the relevant rules of this court, briefs of argument were filed and exchanged.

On the 4th of December, 2012 when the matter came up for hearing, both counsel identified their briefs, adopted and sought to rely on their respective brief of argument.

In the appellants brief of argument filed on 1st June, 2004, four (4) issues were distilled from the six grounds of appeal earlier filed. The said issues are:

Issues for Determination

1. Whether the Court below had jurisdiction to consider and determine the correctness or otherwise of the Rulings of the learned trial Judge dated 23/5/2000 and 24/7/2000 and using the Affidavits which were used in these Rulings when there was no appeal against those Rulings and thereafter basing its judgment solely on the outcome of that consideration.
2. Whether the appellant herein had a fair hearing in the court below. And if not, whether that failure occasioned a miscarriage of justice to the appellant.
3. Whether the Court below was right in holding that under Order 23 Rule 1 of the Federal Capital Territory, Abuja High Court Rules, an applicant praying that his Writ of Summons be placed in the Undefended List must (apart from, or in addition to, the affidavit in support of the (ex-parte) application setting out the grounds of his application and stating that in his belief, the defendant has no defence also file ‘a separate affidavit verifying his cause of action’ and that failure to file that separate verifying affidavit would render the suit incompetent.
4. Whether the Court below was right in striking out the appellants suit in the circumstances of this case and having regard to the provisions of Order 23 Rules 3 and 4 of the FCT High Court (Civil Procedure) Rules.

The respondent in his brief of argument filed on 3rd August, 2004 also formulated two issues for determination as follows:

‘(i) whether the conclusion of the court below that the Writ as irregularly commenced under the undefended list procedure is correct.

(ii) if the answer to issue one that the procedure was incorrect whether reference or non reference to other matters in the judgment occasioned miscarriage of justice in the case.’

I have examined the issues formulated for determination of the appeal by both parties, in particular, by the appellant. The issues as couched by the appellant appear clumsy and unclear, in particular, issues 1 and 3.

Generally, it is settled that the main purpose of the formulation of issues for determination is to enable the parties to narrow down the issue or issues in controversy in the grounds of appeal filed. This is in the interest of accuracy, clarity and brevity. The court is therefore at liberty to reformulate the issues for determination in order to give it precision and clarity and achieve substantial justice in the resolution of the matter in controversy. See; Musa Sha(Jnr.) & Anor Vs. DaRap Kwam & Ors, (2000) 8 NWLR (pt 670) 685, (2000) 2 NSCQR 802, (2000) LPELR 3031; Unity Bank Pic & Anor Vs. Bonari (2008) 2 SCM 193; Yadis Nig. Ltd. Vs.Great Nig, Insurance Company Ltd. (2007) 10 SCM 183.

I shall therefore reformulate the issues for determination in this appeal from the grounds of Appeal filed by the Appellant as follows:

1. Whether the appellant was not denied fair hearing in the determination of the respondents appeal by the court below (Grounds 1,2 and 3).
2. Whether the Court of Appeal was right in the interpretation it gave, Order 23 Rules 1 and 2 of the High Court (Civil Procedure) Rules of FCT in the determination of the respondents appeal before it. (Grounds 4,5 and 6).

As earlier indicated, the appellant had commenced this action before the trial High Court under the undefended list procedure, pursuant to Order 23 of the High Court of the Federal Capital Territory, Abuja (Civil Procedure) Rules then applicable, but now

Order 21 of 2004 which rule provides thus:

“1. Whenever application is made to a court for the issue of a writ of summons in respect of a claim to recover a debt, liquidated money demand or any other claim and the application is supported by an affidavit setting forth the grounds upon which the claim is based and stating that in the deponents belief, there is no defence thereto, the court shall, if satisfied that there are good grounds for believing that there is no defence thereto, enter the suit for hearing, on what shall be called the ‘Undefended list’ and mark the writ of summons accordingly and enter thereon a date for hearing suitable to the circumstances of the particular case.

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 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 summonsfor service.

3(i) If the party served with the writ of summons and affidavit delivers to the registrar, not less than five days before the day fixed for hearing, a notice in writing that he intends to defend the suit, together with an affidavit declosing a defence on the merit, the court may give him leave to defend upon such terms as the court may think just.

(ii) where leave to defend is given under this Rule, the action shall be removed from the undefended list and placed on the ordinary cause list; and the court may order pleadings or proceed to hearing without further pleadings.

4. where any defendant neglects to deliver the notice of defence and affidavit prescribed by rule 3(i) of this order or is given leave to defend by the court, the suit shall be heard as undefended suit and judgment given thereon without calling on the plaintiff to summon witnesses before the court to prove his case formally.
5. Nothing herein shall preclude the court from hearing or requiring oral evidence should it so think fit, at any stage of the proceedings under rule (4) of this Order.’

I shall take and deal with the second issue above first on the way the court below handled the appellants case and the interpretation it gave to Order 23 rules 1 and 2 of the FCT High Court (Civil Procedure) Rules earlier quoted above.

As earlier noted, the appellants action was commenced under a special procedure known as ‘Undefended List Procedure’. By this procedure, generally the action is commenced by an application by the plaintiff for issuance of a writ of summons by the Registrar of the High Court concerned. The application is usually made exparte, though it could be by ordinary application, whereby the other party is not to be involved at that stage of the proceedings. The application is to be supported by an affidavit to which the proposed claim against the defendant must be attached with any other documents considered relevant and available to the applicant as exhibits. The judge shall order that a writ of summons be issued by the Registrar and to be marked as ‘Undefended List’ after having taken the application and the court, upon consideration of all the bundle of documents filed, is satisfied that the case is one fit to be brought under the undefended list. In other words, the writ of summons as an originating process under Order 23 of the High Court (Civil Procedure) Rules is a specially and peculiarly endorsed writ of summons. It should be noted that the writ of summons initiated pursuant to this rule and under this procedure cannot be issued by the Registrar prior to the presentation and consideration of the application for issuance of same by the court, otherwise it goes without saying, that such writ of summons which is issued before the courts order so to do becomes incompetent and shall be liable to be declared a nullity by the court. See; Cash Affairs Finance Ltd, Vs. Inland Bank (Nig) Plc (2000) 5 NWLR (pt 658) 568 at 587, Idris Vs Archibong (2001) 9 NWLR (Pt.718) 447 at 457 and 459, Equity Bank of Nigeria Ltd- Vs. Halilco Nigeria Ltd. (2006) 7 NWLR (pt 980) 568; Bavero Vs Mainasara & Sons Ltd. (2006) 8 NWLR (Pt.982) 391 at 425; (2006) 36 WRN 136.

In the instant case, a careful perusal of all the processes filed shows that the appellants application for leave of the court to issue the writ of summons in the suit by the trial court was filed on 15th May, 2000. The said application, being an exparte application which does not require the defendant/respondents presence, was taken by the court on 23 May, 2000. This is clearly shown in the order on pages 15 – 16 of the record. It is noteworthy that the writ of summons had been issued by the Registrar on 15th May, 2000 before the court so ordered. This is apparent on page 14 of the record and would have rendered the writ of summons improperly issued and thereby incompetent. Ordinarily, the writ of summons had not been properly issued and being an originating process it affects the competence of the trial court in the first place.

However, this point had never been taken up by the Respondent before the two courts below and not even before us now. Worthy of note is that the instant appeal is by the plaintiff who caused the said writ of summons to be issued and served. Neither the trial court nor the court below raised it as they are entitled to do, even when it was not raised by the defendant/respondent. I shall come back to this anon.

my Lords, I must say it here clearly that the respondent did not even directly complain that the Writ of Summons was not properly issued nor that he was not served with the appellants writ of summons. His grouse is that the said writ of summons was not accompanied with a verifying affidavit upon which he would have based his defence, if he had any.

Indeed, the respondent admitted that he was served with the writ of summons, copy of the motion exparte and the enrolled order of court.

In its judgment, the court below had found as follows:

“…………the plaintiff in his counter affidavit did not depose that he filed any affidavit as a separate process ‘setting forth the grounds upon which the claim is based and stating that in the deponents belief, there is no defence thereto…………..’as provided under Order 23 rule 1 of the FCT, Abuja High Court Rules.’

Still in the judgment of the court below, it was opined as follows:

‘Although the affidavit filed in support of the exparte application contained the substance and material needed as a verifying affidavit, it is not in accordance with the Rules of Court to convert an exparte affidavit used for obtaining leave to place a writ on the undefended list as an affidavit verifying the cause of action the attempt made by the plaintiff was to use his affidavit in support of the motion exparte to serve a dual purpose. He wanted to use the same affidavit as the one postulated under Order 23 rule 1 of the FCT High Court Rules.’

There is no doubt that the appellant did not file a separate affidavit in support of the writ of summons after the writ was ordered to issue and became issued. At least there is nothing on record to so indicate. The said affidavit referred to in Order 23 rule 2 as ‘the above-mentioned affidavit’ is no doubt the same affidavit containing the same facts setting forth the grounds upon which the plaintiffs claim is based. And as required, the registrar is to annex a copy of the said affidavit to the writ of summons for service on the defendant upon issuance of the said Writ pursuant to the courts Order to do so.

It is trite that the purpose of Order 23 of the High Court (Civil Procedure) Rules – under Undefended List procedure is for obtaining summary judgment without proceeding to trial requiring calling of witnesses. The rule is for disposing with despatch, cases which are virtually uncontested.

However, for the Rules on Undefended List procedure to successfully apply and enable the court to proceed to summary judgment, the following preliminary requirements must exist.

(i) The defendant must not only have been served with the required processes, he must also have entered appearance.

(ii) A claim must have been indorsed on, or attached to the writ of summons served upon the defendant.

(iii) There must be a definitive affidavit (which is evidence on oath) verifying the cause of action and the amount claimed and also that the defendant has no defence to the action.

(iv) The defendant must not have filed a defence to the action.

See; Chief Harold Sodipo Vs. LemninKainen Oy & Anor (No. 2) (1986) 1 NWLR (pt 15) 220 at 230 – 231, per Eso, JSC.

On the action initiated pursuant to the Rules on Undefended List Procedure, this Court had opined as follows – per Eso, JSC at page 231 of Chief Harold Sodipo Vs. LemninKainen (supra)

‘An action in the undefended list, following these Rules, is not a real substitute to trial of actions, but it serves the purpose of reducing congestion in the courts, by way of creating an avenue for the speedy determination of actions. If a defendant is served with a writ and a statement of claim, and he enters an appearance to the action, having read the affidavit that he has no defence, he cannot be seen to complain after, that he has not had a fair trial.’

There is no doubt, the procedure under undefended list Rules is a bit technical and must be understood properly to be of benefit to parties employing it and the court.

As clearly shown in the Rules, an application being made to court for issuance of a writ of summons is to be accompanied with a supporting affidavit and other necessary and relevant documents to be considered by the court to make a firm decision, before the adversary is brought in, whether or not the action is fit for trial under the undefended list. Yet, after the court is convinced that, with the facts disclosed in the endorsed claim, the affidavit and if any, the documents attached as exhibits, a writ is ordered to be issued by the Registrar, there shall then be delivered by the plaintiff to the Registrar upon the issue of the writ of summons as stated in rule 1 of Order 23, as many copies of the said affidavit as there are parties against whom relief is sought, and the Registrar shall then annex one such copy of the affidavit to each copy of the writ of summons for service on the defendant(s). See; Order 23 rule 2 (supra). In other words, the plaintiff is expected to file a definitive affidavit as evidence on oath separately, verifying the cause of action, the amount being claimed and state clearly that the defendant does not have a defence to the action. Where the writ of summons served on the defendant by the court upon issuance under undefended list procedure does not have the required definitive separate affidavit, the defendant cannot be said to have been served with the required processes.

My Lords, one may then ask, will the trial court be competent to adjudicate on such matter when all the required processes were not served on the defendant? When then does a court become competent to assume jurisdiction to adjudicate over a matter?

This court has settled the matter and has restated it over and over again, that a court is competent when:

‘(a) it is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another;

(b) the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction; and

(c) the case comes before the court initiated by due process of law, and upon fulfilment of any condition precedent to the exercise of jurisdiction.

Any defect in competence is fatal, for the proceedings are nullity, however well conducted and decided, because the defect is extrinsic to the adjudication.’

See; Gabriel Madukolu & Ors- Vs, Johnson Nkemdilim (1962) 1 All NLR 587; (1962) 2 SCNLR 341; (1962) 2 NSCC 374, Mark Vs. Eke (1997) 11NWLR (pt 527) 501, SLB Consortium Ltd- Vs. Nigerian National Petroleum Corporation (2011) 9 NWLR (pt) 317, (2011) 5 SCM 187.

From the records, it is clear that the appellant did not file the required definitive affidavit separately in support of the writ of summons setting forth, the grounds upon which the claim is based and stating that in the deponents belief, there is no defence thereto. This is a condition precedent to enable the court, on the return date, proceed to judgment, in the absence of the defendants defence properly filed before the return date.

Indeed, the appellant admitted in a way, that he did not file a separate affidavit in support of the writ in his personally deposed counter affidavit to the respondents application which sought an order of court striking out the said writ. In paragraph 3, the appellant stated those documents that were served on the respondent as follows:

‘That in answer to paragraphs 2 and 3 of the said affidavit in support of this motion, the documents served on the defendant/applicant herein somewhere in the second half of May 2000 by the bailiff of this honourable court were (i) My specially endorsed writ of summons marked by this court ‘Undefended List’: Return date 10/7/2000, (ii) My motion exparte dated 15/5/2000 together with the supporting affidavit and exhibits SS01, SS02, SS03, SS04 and SS05 attached hereto and (Hi) the Enrolment of Order of this court dated 23/5/2000 granting all the prayers in my motion exparte aforesaid.’ The court below had found on page 73 of the record as follows:

‘It is note worthy that the plaintiff in his counter affidavit did not depose that he filed any affidavit as a separate process ‘setting forth the grounds upon which the claim is based and stating that in the deponents belief, there is no defence……………’as provided under Order 23 rule 1 of the FCT Abuja High Court Rules. Although the affidavit filed in support of the exparte application contained the substance and material needed as a verifying affidavit, it is not in accordance with the Rules of court to convert an exparte affidavit used for obtaining leave to place a writ on the undefended list as an affidavit verifying the cause of action.’

The court below went further on page 74 of the record to hold as follows:

“……………the affidavit filed in support of the Motion exparte was not one to which the defendant could react under Order 23 rule 1 above. The said affidavit in support of the motion exparte was only for use as between the plaintiff and the court and its life was terminated when the lower court used it for the only purpose for which it was filed. It could not be expected that the defendant would file an affidavit disclosing a defence on the merits in reaction to an affidavit exparte which life had expired………………… the plaintiff had irregularly commenced his writ. To allow the writ to stand when it had no verifying affidavit would occasion grave injustice to the defendant as the defendant was precluded thereby from meeting plaintiffs claim in accordance with the rules.’

In his brief of argument, the appellant after referring to the procedure he employed in commencing his action before the trial court, quoted the learned justices of the court below on his failure to file a separate affidavit in support of the writ of summons. Learned counsel referred to the way the court below set out the provisions of Order 23 of the FCT High Court (Civil Procedure) Rules and contended that reading through it, he could not see anything to suggest that an applicant/plaintiff under that rule must file a separate affidavit verifying his cause of action apart from the affidavit in support of his exparte application under Order 23 rule 1. He contended further that Order 23 rule 2 makes it clear that it is the same affidavit in support of the exparte application that must be delivered in sufficient numbers.

There is no doubt, the appellant who incidentally is a counsel himself has, to say the least, misconceived the Rules under reference.

Curiously, the appellant had also contended that Order 23 rule 1 does not say whether the writ shall be issued before or after the courts order.

Indeed, this is not only a misconception but misleading, to say the least. As earlier stated in this judgment, the issuance of writ of summons pursuant to Order 23 under undefended list procedure cannot precede the order of court so to do. In other words, contrary to the misconception of the appellant, even though the writ of summons is issued by the Registrar, he cannot issue one before the court so orders. It is a judicial function that cannot be delegated to an officer. See Nwakanma Vs. Ikot Local Govt. Authority (1996) 3 NWLR (pt 439) 732. Such a Writ of Summons that was issued before judicial decision so to do, upon consideration of an application becomes incompetent and will ordinarily rob the trial court of its competence to try the matter. It is like a Notice of Appeal, which requires leave before being filed, to be filed without leave of court, it shall be incompetent and be so declared by the court as a nullity. Mohammed vs. Olawunmi & Ors. (1990) 2 NWLR (pt 133) 458. Writ of Summons therefore being an originating process must be initiated properly to enable the court assume jurisdiction over the matter.

As shown above, the issue on the time to issue a writ was raised by the appellant himself but was not directly determined by the court below.

In other words, in a case initiated pursuant to the relevant Rules on ‘Undefended List’ due process of law and fulfilment of condition precedent to the exercise of jurisdiction will include the properly issued writ of summons and filing of a definitive affidavit verifying the plaintiffs cause of action. Where this is not done or not shown to have been done, the case cannot be said to have been initiated by due process of law and a condition precedent could not have been said to be fulfilled to enable the trial court proceed to adjudicate on the matter.

I am therefore not in the slightest doubt that the court below was right to have held that failure of the appellant to file a separate affidavit verifying the cause of his action robbed the trial court of competence. This issue is resolved against the appellant.

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SC. 98/2004