Jagal Pharma Limited V. Alhaji Salisu Hussaini (2007)
LawGlobal-Hub Lead Judgment Report
ABUBAKAR ABDULKADIR JEGA, J.C.A.
This is an appeal from a final and two interlocutory decisions of his Lordship Justice S.H. Makeri of the Kaduna State High Court of Justice and which decisions and or rulings were delivered by the Honourable Judge on 21st July 2000, 4th April 2000 and 20th June 2000 respectively.
The facts of this case as can be gathered from the record of proceedings before the court are as follows: The respondent had in a suit initiated under the undefended list (Order 22 Rules 1-4 of the Kaduna State High Court (Civil Procedure) Rules 1987) sued the appellant for the sum of N3,250,000.00 and 10% interest rate on the judgment sum until final liquidation and the cost of instituting the suit.
The learned trial Judge had heard arguments on several interlocutory applications two of which are very relevant in this appeal-
(i) An application to set aside the writ for non compliance with relevant statutory procedure and to strike out the action for abuse of process. This is at pages C1-C4 of the record, the counter affidavit at pages F1 – F3; and the Ruling dismissing it at pages 5- 13. The appellant had by a Notice of Appeal (pages 44-47) of the printed record) appealed but on reflection found that leave to appeal was necessary.
(ii) An objection (pages E1 record on the commencement of the suit on the undefended list without specifically asking for leave to do so. The court dismissed it (pages 20-23 of the printed record).
By a Notice of Appeal dated 1st August 2000 at pages 48 and 49 of the printed record, the appellant appealed from the decision entering judgment for the respondent in the substantive hearing by the undefended list procedure. The appellant had filed a Notice of Appeal against the interlocutory decision of 4/2/00 within time. The appellant abandoned the Notice which is at pages 44-47 of the record as some grounds therein are of mixed law and fact. The Honourable coming on 12/3/03 granted extention of time to seek leave and extention to the appellant to appeal in respect of the two interlocutory decisions set out above. The appellant accordingly filed Notices of appeal in respect of them within the extended time.
Taking the two interlocutory appeals and the final appeal together as frequently counseled by the Supreme Court there are 7 grounds of appeal. The first three are on the final appeal, three on the Ruling on the interlocutory application at pages C1-C4 of the record .and one on the Ruling on the objection at page E1 of the record. Out of the total seven grounds of appeal, the appellant formulated three Issues for determination. The Issues are as follows:-
(1) “Had the court below jurisdiction to have heard the Suit having regard to the following matters
i. that leave was not sought to place the suit into the undefended list.
ii. that the writ and ancillary processes had been filed before leave was sought by the respondent to proceed against the appellant who reside outside the jurisdiction of the court below.
iii. that the writ though to be served outside the jurisdiction was not endorsed within the statutory 30 days.
(2) Is the court below right in its conclusion that the suit was not an abuse of court process considering the suit of the appellant against the respondent in the High Court of Lagos.
(3) Did the court below demonstrate a proper understanding of the defence presented by the appellant and if it did, was it right in its conclusion that no defence was disclosed to necessitate the removal of the suit into the General Cause List from the undefended list.”
The respondent also formulated four Issues for determination. The Issues are stated thus:-
(1) “Whether it can be said that the appellant was misled by the endorsement on the writ, when the trial Judge had in his ruling of 27/9/99 accommodated the statutorily required 30 days by adjourning the hearing of the suit to 4/1/99.
(2) Whether the suit constituted an abuse of court process.
(3) Whether the trial lower court was properly moved by the appellant with respect to the Notice of preliminary objection dated 8th day of March, 2002.
(4) Whether or not a miscarriage of justice has been occasioned by the refusal of the learned trial Judge to transfer the suit to the General Cause list. ”
We heard this appeal on 17th January 2007. Mr. P.Y. Garuba learned counsel for the respondent informed the court that he has filed a Notice of preliminary objection dated 1st March 2005 and filed on the 4th March 2005, same is also incorporated at pages 3-4 in the respondent’s Brief of Argument. Learned counsel moved the Notice of preliminary objection which argument in respect thereof are contained in the brief of argument of the respondent and urged the court to uphold the Notice of preliminary objection and strike out the appeal. In respect of the main appeal, learned counsel for the respondent adopted his brief of argument dated 8th December 2004 and filed on 9th December 2004 and urged the court to dismiss the appeal. At the hearing of the appeal, learned counsel to the appellant was not in court even though he has been served with hearing notice on 2nd August 2006. The appellant’s brief of argument dated 31st March 2003 was deemed filed on 9th November 2004. The appellant also filed a Reply Brief dated 16th December 2004 and filed on 20th December 2004. The appellant’s brief of argument and reply brief are deemed duly argued under Order 6 Rule 9(5) of the Rules of this Court.
As earlier stated, the respondent filed a Notice of preliminary objection dated 1st March 2005 and filed on 4th March 2005. In accordance with Order 3 Rule 18 of the Rules of this Court which was subsequently incorporated in the respondent’s brief of argument. The Notice reads:-
“TAKE NOTICE that at the hearing of this appeal, the respondent intends to raise a preliminary objection as to the competence of the instant appeal on the following grounds:-
(1) That the leave of this court was not sought for and obtained before the consolidation of the two interlocutory appeals with the final appeal.
(2) that this Honourable Court on the 12th day of March 2003 granted the appellant/respondent extention of time to appeal against the two interlocutory decisions of the trial lower court and as delivered on the 04/02/2000 and 20/06/2000 respectively in Suit No.KDH/KAD/560/99.
(3) That having regard to the decision of the Supreme Court in the case Elom Onwe Oke & Ors v. Eze Nwaogbuiya & Ors (2001) 1 SCNJ 157, it is settled law that an interlocutory decision may be included in the appeal against the final appeal though the leave of the court will have to be obtained.
(4) The appellant/respondent failed and/or neglected to obtain the leave of this Honourable Court
before consolidating the two interlocutory appeals with the final appeal in the instant appeal hence same is incompetent and ought to be struck out. ”
Arguing the preliminary objection in the respondent’s brief of argument dated 8/12/04 and filed 9/12/04 learned counsel for the respondent submits that leave of this Honourable court was not obtained before the consolidation of the two interlocutory appeals with the final appeal. That it is settled law that an appeal against an interlocutory ruling/decision may be merged with the appeal against the final judgment but with the leave of court – reference made to Alhaji Mohammed Sanusi Daggash V Hajia Fati Ibrabim Bolama (2004) All FWLR (Pt.212) 1666 at 1752; Alhaji Umaru Abba Tukur V Government of Googola State (1988)1 SC 78 at 83; Ogigie & 3 Ors v. Obioyan (1997)10 SCNJ I at 15.
Learned counsel for the respondent contends that the leave of this Honourable Court is a condition precedent to the consolidation of the three Notices of Appeal and same having not been carried out by the appellant renders the filed consolidated appeal null and void and of no consequence – reference made to Deacon J. K. Oshtoba & Anor v Chief Johnson OIujitan & Anor (2000) 2 SCNJ 159 at 172-173. Learned counsel for respondent urged us to strike out the instant appeal as the leave of the Honourable court was not obtained before the consolidation of the interlocutory appeals dated 17th day of March, 2003 respectively with the final appeal dated the 1st day of August, 2000, hence same is incompetent and ought to be struck out.
In his response to the submissions on the Notice of preliminary objection as argued by learned counsel to the respondent, learned counsel to the appellant submits that the Notice of Appeal against the final decision is shown at pages 48 and 49 of the printed record while a Notice of Appeal was filed against each of the interlocutory decisions of 4/2/2000 and 20/6/2000 after extension of time to apply for leave to appeal, that leave and extension of time to appeal against them were granted on 12/3/03, That they were certainly not consolidated into one Notice of Appeal although indeed this was the 6th prayer in the motion dated 11/5/01 which this court considered unnecessary leading to its withdrawal. Learned counsel argues that the basic principle that an appeal in respect of interlocutory decision may be argued together with one from a final decision is not disturbed in this case. That the kind of leave necessary before that could be done was sought in this appeal by the orders of 12/3/03. Counsel for the appellant contends that the cases cited in support of the objection, support the course taken by the appellant. That the dictum of Obaseki, JSC in Tukur v Government of Gongola State (1988)1 SC 78 at 83 cited for the respondent does not disturb it either. Moreover, one of the two questions considered in that case was the validity of filing more than one Notice of Appeal in respect of the same decision and the dictum was a counsel on what should be done in such a case which is different from the present appeal. Further, counsel for the appellant argues that the lead judgment of Uwais, CJN in Ogige v Obinyan (supra) followed by Ejiwunmi, JSC in Onwe v Ogbunya (supra) restates the desirability of presenting an interlocutory appeal with a main appeal provided that leave, if leave of any sort is required to ordinarily present the interlocutory appeal, the same should be obtained before doing so. Learned counsel for the appellant urged us to hold that the leave required was obtained by the appellant and the objection lacks merit.
The main complaint of the respondent in his Notice of preliminary objection is that the leave of this Honourable Court was not sought for and/or obtained before the consolidation of the two interlocutory appeals with the final appeal. It is glaring from the records before the court that the appellant filed an application before this court dated 1/15/01 among the prayers sought in this application was the 6th prayer which reads thus:-
“6. An order allowing a consolidation of the interlocutory appeals in Exhibits C & D with the appeal in the Notice of Appeal on the final decision of the court below dated 1/8/2000 and already filed by amending the Notice of Appeal to Include the grounds of appeal from the interlocutory decisions which are included as grounds of Appeal Nos. 4, 5, 6 and 7.”
On the 12/3/03, this Honourable Court heard and granted the motion dated 11/8/01 which included prayers for extension of time to apply for leave to appeal the two interlocutory decisions of 4/2/2000 and 20/612000. The appellant was granted orders granting leave to appeal in respect of each of the said interlocutory decisions.
Appellant’s prayer No.6 which had earlier on been produced in this judgment was considered unnecessary since he has already applied for extension of time to apply for leave to appeal against the two interlocutory decisions of 4/2/2000 and 20/6/2000 and accordingly leave and extension of time to appeal against them were granted by this Honourable Court on 12/3/03. In view of the foregoing, the appellant does not need to apply and obtain leave to consolidate the two interlocutory decisions of 4/2/2000 and 20/6/2000 with the final appeal. Accordingly, the respondent’s Notice of preliminary objection dated 1st March 2005 and filed on the 4th of March 2005 lacks merit and ought to be dismissed and it is hereby dismissed.
On the main appeal, the appellant formulated three Issues for determination while the respondent formulated four Issues for determination. It is my view that the Issues as formulated by the appellant would adequately dispose of this appeal.
Issue No. 1- Had the court below jurisdiction to have heard the suit having regard to the following matters:-
(i) That leave was not sought to place the suit into the undefended list.
(ii) That the writ and ancillary processes had been filed before leave was sought by the respondent to proceed against the appellant who resides outside the jurisdiction of the court below.
(iii) That the writ though to be served outside the Jurisdiction was not endorsed within the statutory 30 days.
On the first sub-issue learned counsel for the appellant submits that Order 22 of the Kaduna State High Court (Civil Procedure) Rules 1987 in permitting the trial of Causes by the undefended list procedure clearly intends that the court be satisfied that the Cause is a proper one for trial by that procedure. That court at Rule 1 is defined by section 2 of the High Court Law Cap 67 Laws of Kaduna State 1991 to mean the judge and application means an application by motion as provided at Order 8 Rule 2 of the High Court Rules. Learned counsel for the appellant argues that it is no answer if this procedure is skipped to say that the court would have granted leave or that the cause was one in which the Judge would have granted leave if it was not sought. That leave must be sought and heard – reference made to Maley v. Habibullah Isah (2000) 5 NWLR (Pl.68) 651 at 664; Sincerity & Truth Multi Purpose Co-operative Society Ltd v. Loyeday Emenue (2000) FWLR (Pt.99) 1103; Cash Affairs Ltd v Inland Bank Nig Plc (2000)5 NWLR (Pt.658)568; Nwakanma v. Ikot LGA of Cross River State (1996)3 NWLR (Pt.469)732 at 739. Learned counsel for the appellant contends that the process and justification outlined by the learned trial Judge at page 22 and 23 of the record offend this principle and authority and that he is bound by the authority of this court. Admittedly no such leave was sought by the respondent. That the only answers of the respondent’s counsel at pages 17 of the record which the learned Judge upheld at page 23 were: (a) that the court was satisfied that the case was a proper one for the undefended list hence it placed it there (without a motion to that effect) and the Judge said “on 12/8/99 the court approved the placing of same under the undefended list and a date was then fixed for hearing” page 23 of the printed record.
Learned counsel argues that as at 12/8/99 the respondent had not filed any motion. That the motion for leave to issue the writ as one to be served outside the jurisdiction (pursuant to Order 5 Rule 6 of the Kaduna State High Court Rules) and for substituted service was filed on 23/9/99 a month and 11 days after a motion was heard and granted, as to these two prayers only on 27/9/99.
Moreover, as at 12/8/99 the respondent’s counsel had not appeared in court for any purpose, the first appearance being on 27/9/99;
(b) And that there was waiver by the appellant – counsel to the appellant submits that the issue of waiver is unsupported. That the appellant filed a conditional memorandum of appearance (page 134 of the record) and a motion in the nature of a preliminary objection (pages C1-C14 of the record of proceedings and subsequently the objection at page E1. That it was contended by the respondent that the Judge agreed that the motion at pages C1-C14 amounted to taking steps in the proceeding.
Counsel contends that this is a reduction ad absurdum of the concept of waiver by taking steps particularly since the protests of the appellant are the chief contents of the record of proceedings.
Counsel further submits that by the chronology which the Judge gave at page 23 of the record of proceedings, assuming that there was a proper motion to seek this necessary leave which is not conceded and in any case both the Judge and the respondent’s counsel plainly saw that the respondent’s motion of 23/9/99 was as to leave to issue a writ for service out of the jurisdiction only. That the court by its own account having suo motu granted leave to commence the suit by the undefended list procedure earlier on 12/8/99, the leave granted on 27/9/99 was to the issuance of writ and as to service by substitution. The pervasive assumption at the time of granting these prayers was that a writ on the undefended list already existed on 12/8/99 before the motion was filed on 23/9/99 and granted on 27/9/00.
Learned counsel submits that on the authority of Madukolu v. Nkemdilim (1962)1 ALL NLR 587 at 594 the case did not come before the court initiated by due process of law which requires the fulfillment of the condition precedent that leave must be sought and had by the respondent’s motion to place the suit on the undefended list before it could be heard as such.
Throughout the submissions of the learned counsel for respondent as contained in his brief of argument dated 8/12/04 and filed on 9/12/04, he refused or neglected to respond to the submission of the appellant’s counsel on sub-issue (i) of Issue No.1. I will safely assume that learned counsel to the respondent conveniently refused to join issues on this sub-issue or he has no answers to the submissions on the said sub-issue.
Sub-Issue (i) of Issue No.1 relates to the jurisdiction of the trial court to hear the case on the undefended list procedure when apparently no leave was sought and had when the case was heard and determined under the undefended list procedure. The provisions of Order 22 Rule of the Kaduna State High Court of Justice (Civil Procedure) Rules 1987 governed trials under the undefended list procedure. The Order states thus:-
“Or.22 R.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 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” and marked the writ of summons accordingly, and enter thereon a date for hearing suitable to the circumstance of the particular case.”
It is crystal clear that from the clear and unambiguous provision of Order 22 Rule 1 of the Kaduna State High Court (Civil Procedure) Rules that before a suit is placed under the undefended list there must be formal application for the suit to be so placed and the application has to be by motion as provided by Order 8 Rule 2 of the Kaduna State High Court Civil Procedure Rules, and placement of the suit is formal judicial function of a judge when satisfied that the suit is a proper one to be placed on the undefended list.
In the instant appeal, the respondent applied for a writ of summons dated 27th September 1999 which was marked in the application as undefended list. It was processed in the registry on the 3/8/99 apparently it, was processed before it was applied for. On the 12/8/99 it was claimed that the court approved the placing of same under the undefended list and a date was fixed for hearing. As at that 12/8/99 the respondent has not filed any motion. In a ruling dated 20/6/2000 on a Notice of preliminary objection to the hearing of the motion on the undefended list the learned trial Judge attempted to justify the procedure adopted at page 23 of the printed record thus:-
“On 12/8/99 the court approved the placing of same under the undefended list and a date was then fixed for hearing. On 27/9/99 learned Counsel applied for service of the same writ of Summons out of jurisdiction of this court and this Court approved same. The orders made by this Court to that effect is in the record of the court.
Of recent, a practice has been developed quite rightly in my view whereby counsel apply by an ex-parte application for the suit to be placed as undefended and same to be marked by the court when the application is granted the suit is automatically placed as an undefended suit pursuant to Order 22 Rule 1 and a date fixed for hearing. This recent procedure has shortened so to say the old procedure which I have enumerated above but that is not to say that the old procedure has no validity in law.”
I have carefully checked the printed record before the court and I have not found any formal application requesting that the suit be placed under the undefended list by the counsel to the respondent. In fact the first formal sitting of the court after the writ has been issued was on the 27/9/99. It is on record that the suit was alleged to be placed under the undefended list on 12/8/99. I have not also found any document indicating or suggesting that any judicial officer either the Chief Judge who assign cases or the trial Judge formally approved the placement of the suit under the undefended list.
The law is settled that before a suit is placed under the undefended list, there must be a formal application applying for same and there must be a formal judicial action by a judge placing same on the undefended list after being satisfied that the case is a proper one to be so placed.
In Maley v. Isah (supra) this court held thus:-
“The application to the court for the issuance of a writ of summons under the undefended list in Order 22 Rule 1 is to be made by a motion Ex-parte to the court. Since the application is to be supported by an affidavit, the fact that it has to be by way of motion prescribed by Order 8 Rules 1 to 3 is obvious. In the instant case where the application to place the respondent’s suit on the undefended list was not made ‘by a motion supported by an affidavit but by a written note which was passed on the Judge who approved the suit to be placed on the undefended list. The requirement of Order 22 Rule 1 was not satisfied or complied with.”
This court went further to state thus:-
“The decision to place a case on the undefended List of the court is essentially a judicial decision which must be taken judicially and judiciously in a judicial proceeding which is capable of being scrutinized from the record of the court by any Appellate court in order to determine whether or not that discretion of the trial court was exercised judicially and judiciously on the relevant material placed before the court.”
In the instant appeal, it is my definite finding that the provisions of Order 22 Rule 1 of the Kaduna State High Court (Civil Procedure) Rules 1987 was not satisfied or complied with, therefore the trial court is deprived of the necessary jurisdiction to entertain the suit on the undefended list. In Nwakama v. Ikot LGA of Cross-River State (supra) 732 at 739, this Court held thus:-
“If the trial Judge is satisfied that the case should be placed on the undefended list, he marks the Writ of summons issued in this regard “undefended list” and endorses it. The writ of summons signed by the judge or the court order in this regard is attached to the writ of summon and then served on the defendant. It is therefore a condition precedent to the invocation of its ‘undefended list’ jurisdiction that the trial judge must be fully involved in respect thereof and must personally take a decision having regard to the material placed before it whether or not to place a case in the undefended list.”
Sub-Issue (i) of Issue No.1 is resolved in favour of the appellant against the respondent. Since the sub-issue is squarely on jurisdiction, it disposes of the entire appeal. It is no longer necessary to wade into the remaining Issues which can hardly arise in the absence of a competent suit.
In the result, this appeal succeeds and it is hereby allowed. The judgment of the Kaduna State High Court in Suit No. KDH/KAD/560/99 delivered on 21st July, 2000 by Makeri, J. without jurisdiction to hear the suit on the undefended list is hereby set aside and the plaintiffs suit in this regard is struck out.
There shall be N5,000.00 costs to the appellant.
Other Citations: (2007)LCN/2312(CA)
