Dr. Olatunji Abayomi V. Attorney-general, Ondo State (2006)
LawGlobal-Hub Lead Judgment Report
ALI ABUBAKAR BABANDI GUMEL, J.C.A.
This is an appeal against the decision of Ondo State High Court, Akure delivered on 8th day of June, 2004 in Suit No. AK/121/2004. By a writ of summons dated and filed on 28th May, 2004, the Plaintiffs/Appellants claim against the Defendant/Respondent as follows:
(a) The sum of N10,000,000.00 (Ten Million Naira) only as legal fees for filing, processing and registration of Citadel Bank for Ondo State;
(b) An order directing 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 and also directing the defendants to pay the interest of 10% upon any judgment, commencing from the date thereof or afterwards, as the case may be.
This writ was accompanied and was filed along with a 16 paragraph statement of claim. Along side these 2 processes, the Plaintiffs/Appellants also filed a motion Ex-parte seeking leave of the court below to issue, mark and place the writ of summons on the undefended list. This application was made pursuant to Order 23 Rule 1 of the Ondo State High Court Civil Procedure Rules and under the inherent jurisdiction of the court. This motion was supported by a 7 paragraphs affidavit with so many copious documents attached thereto. This motion was argued before the learned trial Chief Judge on 8th June, 2004. After the arguments of learned counsel, the court below proceeded to give its ruling wherein it decided:-
“I have carefully considered the processe (sic) filed in this case and the submission of the learned counsel for the plaintiffs and I am of the view that this is not a case that can be pleased (sic) under the Undefended List. However, this is not to say that by this order the court is pre chiding (sic)” the plaintiffs from claiming against the Defendant, rather what it is saying is that the procedure adopted is not the appropriate one they can still file pleading in the normal way if they so desire. In the present circumstances, therefore, the present application is refused and consequently struck out.”
In a notice of appeal dated 22nd June, 2004, and predicated on 2 grounds of appeal the Appellants seek for an order of this court setting aside the decision of the trial court delivered on the 8th June, 2004 and also for an order directing that the cause of action be heard by a different judge of the High Court of Ondo State. From the grounds of appeal, the appellants, in their appellants’ brief filed on 10th November, 2004, identified and put forward 2 issues for determination in this appeal. They are as follows:
- Whether the learned trial Judge properly considered the application brought before him, under the undefended list and consequently whether the learned trial judge took the correct steps notwithstanding the plethora of authorities before him to have the suit struck out without marking same as undefended or placing the suit under the general cause list as otherwise provided by the High Court Rules; and
- Whether the learned trial judge was right in holding that the plaintiffs’ case is not one that can be placed under the undefended list; and whether the learned trial judge was right in holding that the procedure adopted by the plaintiffs is not the appropriate one.
On his own part, the Respondent formulated a single issue for determination and it is:-
(a) Whether the learned trial judge was right by refusing to grant the plaintiffs/Appellants’ application for leave to issue, mark and place the Writ of Summons on the Undefended List and consequently striking out same.
At the hearing of this appeal on the 25th September, 2006, learned counsel to the Appellants, Mr. Orumen referred to, adopted and relied on the Appellants’ brief. In his arguments on the 1st issue, learned counsel, Mr. Orumen began by highlighting the premise upon which the decision of trial Appellants’ brief. In his arguments on the 1st issue, learned counsel, Mr. Orumen began by highlighting the premise upon which the decision of trial court was predicated. He went on to point out that the court below was of the view that the procedure adopted by the plaintiffs is not the appropriate one and that the plaintiffs can still file pleadings in the normal way if they so desire. After this prelude, Mr. Ommen set out to demolish the pillars upon which the court below founded its decision.
According to learned counsel, Mr. Orumen, to bring an action under the undefended list procedure an applicant has to strictly comply with Order 23 Rule 1 of the Ondo State High Court Rules. He added that in an action for recovery of debt or liquidated money demand, there must be an application to the court for the issue of a writ of summons which must be accompanied by an affidavit setting forth the grounds upon which the claim is based and the belief of the deponent that there is no defence to the action. He referred to KWARA HOTELS LTD. V. ISHOLA (2002) FWLR (PT. 135) 789 and RIVERS STATE GOVERNMENT V. SPECIALIST KONSULT (FWLR) (PT. 72) 1893 and explained that after going through the affidavit and the court is satisfied that there is no defence to the action, it will then enter the suit for hearing under the undefended list and mark the writ of summons accordingly. Learned counsel went on to underscore the key features, in the provisions of Order 23 Rule 1 (supra), more particularly with reference to the application contemplated in rule 1. He once again referred to KWARA HOTELS LTD. V. ISHOLA supra) and submitted that the application envisaged by Order 23 Rule 1 (supra) is one done by the completion of FORM 1 in the appendix to the Rules which must accord with the provisions of Order 6 Rule 1 of the Ondo State High Court Rules. Learned counsel maintained that the completion of FORM 1 coupled with an affidavit constitute the application upon which the court, if satisfied, will enter the suit under the undefended list further to which the writ will be marked and issued accordingly.
In the opinion of learned counsel, Mr. Orumen, it is clear from Order 23 Rule 1 that the only time the court will refuse placing or marking a suit under the undefended list is when the affidavit of the applicant does not disclose sufficient grounds to warrant so doing. Learned counsel referred to the cases of FIRST BANK OF NIGERIA LTD. V. KHALADU & ORS. (1993) 9 NWLR (PT. 315 14 and J. BAERTHLE & CO. LTD. V. LIMA SERVICES LTD. (1992) 1 NWLR (PT. 217) 273 to explain in greater detail the entire undefended list procedure under the various rules of Order 23 and the nature and character of a judgment made thereunder. To drive his position home, learned counsel submitted that a court cannot suo motu strike out a case under the undefended list procedure because the rules have made ample provisions as to the step by step handling of any such application. He then offered to say that what a court faced with that application could do was to decline to designate the action as an undefended list suit and transfer same to the general cause list if it was not satisfied that the grounds as disclosed by the affidavit in support did not support or merit the action being placed under the undefended list. In another explanation, learned counsel said that assuming, though without conceding, that there was a defect in the application filed before the lower court by the Plaintiffs/Appellants, that should not be a sufficient ground to warrant the action being struck out in its entirety. He then maintained that striking out the suit was a superfluous and an unnecessary burden on the Appellants and went further to opine that substantial justice should prevail over form embodied in technical rules. Learned counsel Mr. Orumen referred to UNION BANK OF NIGERIA PLC. V. EKULO FARMS LTD. (2001) FWLR (pt.67) 847 and FALOBI V. FALOBI (1976) 9-10 SC 1 and submitted that a court should not allow mere form to deter it in the path of doing justice between the parties before it.
On the decision of the learned trial Chief Judge that the plaintiffs/Appellants can still file pleadings in the normal way if they so desired, learned counsel submitted that this decision amounts to taking the matter outside the provisions of Order 23 Rule 1. He urged us to hold that this decision of the court below is not supported by the rules and therefore perverse. He also urged us to disregard it as what the learned trial Chief Judge should do was to have placed the suit under the general cause list and not to strike out the suit. Learned counsel added that striking out the suit and asking the plaintiffs/Appellants to file pleadings in the normal way amounted to putting undue hardship on them. In closing his arguments, though without any reference to his 2nd issue, learned counsel Mr. Orumen pointed out that the court below was clearly wrong in introducing the issue of filing pleadings in the normal way in respect of cases that fall under the undefended list. He referred to the case of OJO V. VICTINO FIXED ODDS LTD. 9 NWLR (PT. 673) 649 AT 660-661. He urged us to allow the appeal on the basis that the court below was wrong to have struck out the suit on the basis that this suit was not one that could be placed on the undefended list.
Also at the hearing of the appeal before us, learned counsel to the Respondent, Uche Anesoh-Anebui adopted, relied and referred to the Respondent’s brief which was deemed to have been filed on 14th April, 2005. After reproducing the provisions of Order 23 Rule 1, learned counsel to the Respondent submitted that the Appellants did not comply with its requirements. According to learned counsel, Order 23 Rule 1 requires the Appellants to file an affidavit stating the grounds upon which the Defendant is believed to have no defence. Learned counsel referred to a part of the ruling of the trial court at page 52 of the record of appeal. While agreeing with the view of the court below, learned counsel pointed out that the Appellants confused the affidavit required in support of the application setting forth the grounds upon which the claim is based and stating that in the deponents belief the Defendant has no defence thereto whatsoever with an ordinary affidavit in support of an ex-parte motion.
Learned counsel, Uche Anesoh-Anebui referred to the case of OKPERE V. RUGOJI (2004) FWLR (PT. 194) 463 AT 477 where Umoren, JCA outlined the nature of the affidavit in support of an application for a suit to be under the undefended list. He further referred to the case of NIGERIA VICTORY ASSURANCE CO. LTD. V. GRAINS PROCESSING CO. LTD. (1999) 3 NWLR (PT. 386) 681 where the decision of the Supreme Court in U.T.C. NIGERIA LTD. V. PAMOTEI (1989) 2 NWLR (PT. 103) 244 was referred to and applied. Based on the foregoing, learned counsel to the Respondent submitted that an application made to court for the issue of a writ under Order 23 Rule 1 requires its own affidavit in support of the Ex-parte motion that is different from the affidavit which is filed along with the writ setting out the claim and stating that the defendant has no defence to the action. Learned counsel submitted further that the plaintiffs’ /Appellants’ failure to file the necessary affidavit, as observed by the court below, amounted to a non-compliance with the provisions of Order 23 Rule 1 and added that the court below was right in declining to grant the application for leave to place the Appellants’ suit under the undefended list.
Learned counsel to the Respondent called in aid the case of OKEKE v. NICON HOTELS LTD. (1996) NWLR (PT. 586) 216 at 222 where it was held that the entry of a suit in the undefended list is not automatic but the court must be satisfied that there are good grounds for believing that there is no defence to the claim before same could be so placed and marked for service on the Defendant(s). Learned counsel added that in the case of OKPERE V. RUGOJI (supra) the court held that the provision of Order 22 Rule 1 of the Katsina State High Court Rules, a provision which is pari materia with Order 23 Rule 1 (supra), was mandatory. Based on the foregoing arguments and submissions, learned counsel to the Respondent urged us to strike out this appeal because it is misconceived and added further in another breathe that this appeal should be dismissed because the court below was right in declining to grant the Appellants application for leave to place the suit under the undefended list and striking out same.
I have carefully read the briefs of both sides to this appeal. I believe that the 1st issue formulated by the Appellants, though a bit inelegant, is apt for the determination of this appeal and I would shortly discuss same in greater detail. The lone issue formulated by the Respondent appears to me to be fully encompassed in the appellants’ 1st issue. To start on a very good footing, Order 23 Rule 1 of the Ondo State High Court Rules provides as follows:-
“Order 23 Rule 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 or liquidated money or any other claim and such application is supported by an affidavit setting forth the grounds upon which the claim is based and stating that in the deponent’s 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 in what shall be called the “Undefended List”, and mark the writ of summons accordingly, and enter thereon a date for hearing suitable to the circumstance of the particular case.”
By virtue of this provision whenever an application is made to a court for the issue of a writ of summons in respect of a claim to recover a debt or liquidated money demand and such application is supported by an affidavit setting forth the grounds upon which the claim is based and stating that in the deponent’s 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 in what shall be called the undefended list. Just by the way, it may be explained that a liquidated demand is a debt or other specific sum of money usually due and payable and its amount must be already ascertained or capable of being ascertained as a mere matter of arithmetic without any other or further investigation. See NIGERIAN POSTAL SERVICES V. IRBOK NIGERIA LTD. (2006) ALL FWLR (PT. 326) 331.
There is no doubt at all that Order 23 Rule 1 gives the court a discretion to place and mark a writ of summons for service on the Defendant, upon the application of a plaintiff as an action under the undefended list. It is only in respect of claims to recover a debt or liquidated money demand that the court is permitted and empowered to entertain applications for writ of summons meant for placement on the undefended list. If the action is not for the recovery of a debt or liquidated money demand, then no application for placement of the matter on the undefended list can be entertained by the court.
Before going further let me try to set the records in this appeal very clearly and straight. Learned counsel to the Appellants appears to be of the view that it was entire suit No. AK/121/2004 that was struck out by the lower court in its ruling of 8th June, 2004, while learned counsel to the Respondent appears to be of the view that it was the Ex-parte motion of the Appellants at pages 1 to 44 of the record of appeal that was struck out in consequence of the ruling of the lower court of 8th June, 2004. Respective learned counsel argued their issues for determination in this appeal from these respective stand points. If not timeously resolved, this is capable of bringing about a very serious confusion that could lead to miscarriage of justice. Based on the records of appeal, more particularly the ruling of the learned trial Chief Judge and especially the part earlier on reproduced in this judgment, it appears to me that the view held by learned counsel to the Appellants is erroneous and a total misconception. I am inclined to agree with learned counsel to the Respondent that the lower court merely struck out the Ex-parte motion dated and filed by the Plaintiffs/Appellants on 28th May, 2004, together with its annexures contained at pages 1 to 44 of the record of appeal. In the latter part of its ruling the trial court said:-
“In the present circumstance, therefore, the present application is refused and consequently struck out.”
It is reasonable to hold that what the learned trial Chief Judge struck out was the Ex-parte motion together with its affidavit and documentary Exhibits. I accordingly so hold.”
The facts and circumstances in this appeal are quite distinguishable from the ones in all the cases referred to by respective learned counsel.
There are quite a number of important points of departure. It is quite clear that the Plaintiffs/Appellants had filed a statement of claim. See pages 47 to 49 of the record. When the court below refused to grant the plaintiffs’/Appellants’ ex-parte application to place and mark the suit under the undefended list it struck out without making any order as to the fate of the writ of summons and statement of claim. Rather than make specific orders as to the status of these processes, the court below went into what I consider to be a half-hearted attempt to justify its decision in declining to grant the application when it informed the Plaintiffs/Appellants that:-
“However, this is not to say that by this order the court is pre chiding (sic) the plaintiffs from claiming against the Defendant, rather what it is saying is that the procedure adopted is not the appropriate one they can still file pleading in the normal way if they so desire.”
I have carefully examined the issue placed before this court for determination in this appeal and the submissions of respective learned counsel. It is of great importance to emphasise that it has been decided in a number of Supreme Court decisions that whenever an application is placed before a court for an order for the trial of a civil cause to proceed under the undefended list procedure, the trial judge is under a duty in law to examine those processes presented very carefully to ensure first and foremost that the Plaintiffs/Applicants complied with the provisions of the rules under which the summons was founded. This is to ensure the safeguards which must of necessity be available to the defendant. If satisfied with the compliance and the grounds upon which the claim was founded, the trial judge must then enter the suit on the undefended list and cause the writ to be so marked.
A defendant who, upon the service on him of the process placed on the undefended list wants to be heard in the matter must deliver to the registrar of court a notice in writing that he intends to defend the suit together with an affidavit disclosing a defence on the merit. It is also the function of the court to decide on quality of the purported defence filed by the defendant by assessing same and deciding that the circumstance justified the defendant being allowed to enter a formal defence to the action and for the suit to be heard and determined after a full blown trial. Where the court is of the opinion that the affidavit filed by a defendant does not disclose a defence on the merit it shall proceed to enter judgment for the plaintiffs without or without any further evidence as the circumstances may permit. See Order 23 Rules 1,2,3 and 4 and UTC V. PAMOTEI (supra) and OLUBUSOLA STORES V. STANDARD BANK NIGERIA LTD. (1975) 4SC 51.
Order 23 Rule 1, as submitted by learned counsel to the appellant, provides for the making of an application supported with an affidavit urging a court to place and mark a suit under the undefended list. While learned counsel to the Appellants maintained that an ex-parte motion with a supporting affidavit, as in the instant case suffices to satisfy the initial requirement of an application under Order 23 Rule 1. However, learned counsel to the Respondent took a different view when he maintained that the writ of summons must be accompanied by an affidavit in addition to an application for the suit to be placed and marked under undefended list. Learned counsel failed to elaborate the real nomenclature of the application contemplated and envisaged under Order 23 Rule 1.
An Ex-parte motion is one of the usual methods through which an application can be made to a court. For any motion to be competent it must be supported by an affidavit.
As I observed earlier in this judgment placing a suit under the undefended list or otherwise is within the discretion of the lower court in this appeal. This discretion, like any other must be exercised judicially and judiciously.
A discretion is said to have been exercised well and judiciously and judicially when it was based only on the materials placed before the court and not on any extraneous or whimsical considerations. Every exercise of a discretionary power must aim at the attainment of substantial justice. See KWAJAFA V. BANK OF THE NORTH (2004) 13 NWLR (PT. 889) 146.
Rules of court must be obeyed where they are consistent with fundamental principles of justice and aimed at deciding cases and appeals on the merit. The rules are made to guide the court in the administration of justice. They should not however to be seen as immutable. Rather, they are for convenience and orderly hearing of causes in court, to help the cause of justice and not to defeat justice. Now, interest of justice will abhor a situation where the parties to an action or even the courts follow rules slavishly which impede or hinder the promotion of justice. The current thinking in the administration of justice is to refrain from technical justice for substantial justice. See FSB INTERNATIONAL BANK LTD. V. IMANO NIGERIA LTD. (2000) 11 NWLR (PT. 679) 620 as was approved and applied recently by this court in the case of OSIFO V. OKOGBO COMMUNITY BANK LTD. (2006) 15 NWLR (PT. 1002) 260 AT 276 F-G.
In the instant case, Order 23 Rule 1 merely provides for the making of an application and an affidavit stating that the claim is for a liquidated amount and in the opinion of the deponent the defendant has no defence to the action whatsoever. The claim of the plaintiff must ex-facie satisfy the court that it was for a liquidated money demand and the defendant has no defence whatsoever. In the circumstance of this case, the trial court ought to have considered the ex-parte motion of the Plaintiffs/Appellants and decide same on its merit based on the facts’ contained in the affidavit in support. Striking out the motion without making any specific order on the fate of the already filed writ of summons and statement of claim was an improper exercise of discretion and therefore a miscarriage of justice. I accordingly so hold. I therefore now adjudge this appeal to be meritorious and same must be allowed. This appeal succeeds and it is hereby allowed.
The order of the Ondo State High Court, Akure in Suit No. AK/121/2004 striking out the application of the Plaintiffs/Appellants for leave to place and mark their suit under the undefended list ought to be set aside and same is hereby set aside. In consequence of this, it is hereby ordered that the Ex-parte motion of the Plaintiffs/Appellants dated 28th May, 2004 be heard and determined on its merit by another judge of the Ondo State High Court. I order N5,000.00 costs for the Appellants against the Respondent.
Other Citations: (2006)LCN/2128(CA)
