AKPAN & ORS v. EKWERE (2020)

AKPAN & ORS v. EKWERE

(2020)LCN/14095(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Friday, March 13, 2020

CA/C/68/2016

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Between

HON. ANTHONY AKPAN 2. TONS POOLS COMPANY LTD 3. ANTHONY AKRA (Doing Business In The Name And Style Of M.V. Pools) APPELANT(S)

And

HON. (BARR) FIDELIS B. M. EKWERE RESPONDENT(S)

RATIO

THE PROCEDURE FOR UNDEFENDED LIST

The provisions of Order 11 Rules 8 – 11 of the High Court (Civil Procedure) Rules of Akwa Ibom State 2009 deals with undefended list procedure.
It provide as follows:-
“8(1) Where a claimant in respect of a claim to recover a debt or liquidated money demand believes that there is no defense to his claim he shall make an application to a Court for the issuance of a writ of summons in respect of the claim to recover such debt or liquidated money demand and shall support the application by an affidavit setting forth the grounds upon which the claim is based and stating that in the deponent’s belief there was no defence thereto.
9.There shall be delivered by the claimant 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 summons for service.
10(1) If the party served with the writ of summons and affidavit delivers to the registrar, before the day fixed for hearing a notice in writing that he intends to defend the suit together with an affidavit disclosing a defence on the merit, the Court may give him leave to defend upon such terms as may think just.
11.Where any defendant neglects to deliver the notice of defence and affidavit prescribed by Rule 10 (1) or is not given leave to defend by the Court, the suit shall be heard as an undefended suit; and judgment given thereon, without calling upon the claimant to prove his case formally.”
It is pertinent to state here that the rules of Court dealing with cases to be put on the undefended list are designed to ensure quick dispensation of justice. But having shown intention to defend unless the affidavit evidence proffered by the defendant does not qualify as a defence on merit, the undefended list procedure cannot justifiably be embarked upon. Although, the general approach of the Courts is that some liberality should be brought to bear by the Trial Court while considering whether to grant leave to a defendant in an action filed against him; the defendant must depose to facts which disclose the existence of triable issues in his affidavit in support of his intention to defend. See AGWUNEME V. EZE (1990) 3 NWLR (prt 137) 242. In OKORO V. OKORO (2018) 16 NWLR (prt 1646) 506 at 516 – 517, it was held that a defendant whose affidavit or oral examination by the Court does not disclose that he has a good defence to an action on the merits or disclose sufficient facts to entitle him to defend the action generally will fail to stop the Court from entering summary judgment in favour of the plaintiff. PER SHUAIBU, J.C.A.

WHETHER OR NOT THE VALIDITY OF AN ORIGINATING PROCESS AFFECTS THE COMPETENCE OF THE PROCEEDINGS

The law is equally settled that the validity of the originating processes in a proceeding before a Court is fundamental as the competence of the proceeding is a condition sine qua non to the legitimacy to any suit. Therefore, the failure to commence proceedings with a valid writ of summons goes to the root of the case and any order emanating from such proceedings is liable to be set aside as incompetent and a nullity. See KIDA V. OGUNMOLA (2006) 13 NWLR (prt 997) 377 and MADUKOLU V. NKEMDILIM (supra). PER SHUAIBU, J.C.A.

CIRCUMSTANCES WHERE A CLAIMANT WOULD BE ENTITLED TO SUMMARY JUDGEMENT

An undefended list procedure is a recipe of summary judgment and applies to cases where there can be no reasonable doubt but the plaintiff is entitled to judgment and also where it is inexpedient to allow a defendant to defend for mere purposes of delay. It is thus for the plain and straight forward and not for the devious and crafty. See UBA PLC V. JARGABA (2007) 11 NWLR (prt 1045) 247 and LEWIS V. UBA PLC (2016) 6 NWLR (prt 1508) 329 at 349.
It was also held in plethora of judicial decisions that an affidavit in support of a notice of intention to defend a suit on the undefended list must disclose a defence on the merit. And what amount to a defence on the merit in an undefended list procedure is within the discretion of the trial Court. PER MUHAMMED LAWAL SHUAIBU, J.C.A.

MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Akwa Ibom State sitting at Ikot Abasi delivered on 3rd December, 2015. The respondent as plaintiff before the Trial Court took out a writ under the undefended list wherein he claimed against the defendants (now appellants) as follows:-
1. N3,514,220 being balance of N7,250,000 unpaid winning of weeks 22 and 28 which dates were 18th/19th December, 2010 and 29th/ 30th January, 2011.
2. N30% per annum interest from December 2010 to 2015.
3. N2,000,000.00 (Two Million Naira) general damages for breach of contract/agreement.
4.10% monthly interest from date of judgment till the debt is totally liquidated.

After hearing the motion Exparte on the 30th July, 2015, leave was accordingly granted to the respondent to place the suit on the undefended list and fixed the 20th day of October, 2015 for hearing. On being served, the 1st and 3rd appellants respectively filed their notices of intention to defend together with affidavit setting out a defence on the merit. The 2nd appellant did not however file any notice to defend.

In a considered ruling delivered on 3rd day of December, 2015, A. E. Archibong J. at page 42 of the record of appeal held as follows:-
“In the circumstance therefore and in consonance with the afore-cited authority; I see no basis whatsoever to warrant transferring this suit to the general cause list of this Court for plenary hearing.
It is on account of the foregoing therefore, that I find and hold that the plaintiff is entitled to judgment as per his statement of claim.”

Dissatisfied with the above, appellants appealed to this Court through a notice of appeal filed on 14/12/2015. The said notice of appeal contains two grounds of appeal at pages 44 to 45 of the record of appeal.

At the hearing of the appeal on 22/01/2020 Nse Williams, Esq., on behalf of the appellants adopted and relied on the appellants’ brief of argument filed on 31/3/2016 in urging this Court to allow the appeal. Hon. (Barr) Fidelis B. M. Ekwere appearing in person, adopted and relied on the respondent’s brief of argument filed on 01/11/2017 but deemed as properly filed on 15/1/2018 in urging this Court to dismiss the appeal.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Learned counsel for the appellants distilled two issues for the determination of this appeal as follows:-
1. Whether the Court below had the requisite jurisdiction to hear and determine the matter when the writ of summons in the suit was issued before the Court made the order to that effect?
2. Whether by evidence before that Court, the claim of the respondent can be ascertained to the liquidated one to warrant summary judgment?

The respondent on his part adopt the two issues formulated by the appellants. The facts of the case as disclosed in the records of appeal are as follows:-
The respondent played Tons Coupons (that is the 2nd appellant’s coupons) in weeks 22 and 28 which dates are 18th/19th December, 2011. That the said coupons were submitted to the 3rd appellant who subsequently submitted same to the 2nd appellant. That in the said weeks, the respondent won a total sum of N7,250,000.00 (Seven Million, Two Hundred and Fifty Thousand Naira) and consequent upon which the 2nd appellant issued the agents winners list of that week but without cash.

However, upon the respondent’s meeting with the 1st appellant, he promised to

pay the respondent the total sum but only paid part of the total sum being the sum of N3,535,780 (Three Million, Five Hundred and Thirty Five Thousand Seven Hundred and Eighty Naira) between January and June 2011 leaving a balance of N3,714,220.00 (Three Million, Seven Hundred and Fourteen Thousand, Two Hundred and Twenty Naira) unpaid.

As a result of series of meetings, the 1st appellant agreed to be paying the sum of N200,000 to the respondent per month commencing from September, 2011 till when the total balance was liquidated. Following the said agreement, the 1st appellant paid the sum of N200,000.00 to the respondent at the end of September, 2011 leaving the sum of N3,514,220.00 unpaid. Despite series of demand letters, Exhibits A1 – A14 B, C, D and E and other efforts put by the respondent to secure payment of the balance, the appellants remain adamant and that necessitated the respondent approached the lower Court through the undefended list procedure seeking the recovery of the said amount from the appellants.

Arguing the first issue, learned counsel for the appellants contends that the order placing the suit on undefended list was

granted on 30th July, 2015 whereas the writ of summons in the matter was issued by the registrar on 27th July, 2015 that is, 3 days before the Lower Court made its order to be so issued.

Still in contention, learned counsel argued that the issuance of a writ of summons under the undefended list procedure cannot precede the order of Court to do so. Thus where as in this case, the Registrar issued a writ of summons before a judicial decision so to do; the writ of summons is incompetent and robs the Lower Court of its competence to try the matter. He referred to OBARO V. HASSAN (2013) 8 NWLR (Pt. 1357) 425 at 449 and MADUKOLU V. NKEMDILIM (1962) 1 ALL NLR (prt 4) 587 to the effect that the writ of summons being an originating process must be initiated properly to enable the Court assume jurisdiction over the matter.

On the second issue, learned counsel argued that there was no evidence whatsoever before the lower Court to justify the judgment in favour of the respondent in the matter under the undefended list procedure. It was further argued that the Lower Court can no longer rely on affidavit in support of ex parte application whose life has expired

with the granting of leave sought on 30/7/2015. Thus, a Court of Trial or Appellate must see the Exhibit before probing into the veracity or authenticity otherwise, a miscarriage of justice will occasion. He referred to MOBIL PRODUCING UNLIMITED V. MONOKPO (2004) ALL FWLR (prt 195) 575 at 603.

On his part, the respondent contends that by its very nature, proceeding under the undefended list is regulated by the High Court (Civil Procedure) Rules and that the respondent had complied with all the requirements of Order 11 Rule 8 of the High Court (Civil Procedure) Rules 2009 of Akwa Ibom State.

Still in contention, learned counsel argued that a writ of summons is the process of the Court and that the mistake of stamping the writ of summons on 27/7/2017 was that of the Registrar which said mistake cannot be visited on the respondent. He referred to NASCO TOWN PLC V. NWABUEZE (2015) ALL FWLR (prt 780) 1381 at 1384.

In further argument, he submitted that appellants are estopped from raising any complaint having taken steps and filing their respective notices of intention to defend and that they have waived their right to so complain. He referred to

NWAWKA V. ADIKAMKWU (2015) ALL FWLR (prt 804) 2064 at 2068, and MTN NIGERIA COMMUNICATION LTD V. ALUkO (2014) ALL FWLR (prt 732) 1701 at 1708.

On the second issue, learned counsel referred copiously to the provision of Order 11 Rule 7 to contend that the appellants not only admitted service of the respondent’s processes but also did not deny their indebtedness to the respondent. It was thus submitted that what is admitted requires no further proof. He referred to CBN V. EDET (2015) ALL FWLR (prt 768) 879 at 885 and BANKOLE V. ADEYEYE (2014) ALL FWLR (prt 721) 1570 at 1573.

stating that in the deponent’s belief there was no defence thereto.
9.There shall be delivered by the claimant 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 summons for service.
10(1) If the party served with the writ of summons and affidavit delivers to the registrar, before the day fixed for hearing a notice in writing that he intends to defend the suit together with an affidavit disclosing a defence on the merit, the Court may give him leave to defend upon such terms as may think just.
11.Where any defendant neglects to deliver the notice of defence and affidavit prescribed by Rule 10 (1) or is not given leave to defend by the Court, the suit shall be heard as an undefended suit; and judgment given thereon, without calling upon the claimant to prove his case formally.”
It is pertinent to state here that the rules of Court dealing with cases to be put on the undefended list are designed to ensure quick dispensation of justice. But

having shown intention to defend unless the affidavit evidence proffered by the defendant does not qualify as a defence on merit, the undefended list procedure cannot justifiably be embarked upon. Although, the general approach of the Courts is that some liberality should be brought to bear by the Trial Court while considering whether to grant leave to a defendant in an action filed against him; the defendant must depose to facts which disclose the existence of triable issues in his affidavit in support of his intention to defend. See AGWUNEME V. EZE (1990) 3 NWLR (prt 137) 242. In OKORO V. OKORO (2018) 16 NWLR (prt 1646) 506 at 516 – 517, it was held that a defendant whose affidavit or oral examination by the Court does not disclose that he has a good defence to an action on the merits or disclose sufficient facts to entitle him to defend the action generally will fail to stop the Court from entering summary judgment in favour of the plaintiff.
The appellants’ main contention was that the writ of summons in the present case preceded the Order of the Court. In other words, the writ of summons was issued prior to the Court’s order as

contended by the appellants’ counsel. Perhaps, it is instructive to note that the procedure under undefended list rules is a bit technical and must be understood to be of the benefit to parties employing it and the Court.
The law is equally settled that the validity of the originating processes in a proceeding before a Court is fundamental as the competence of the proceeding is a condition sine qua non to the legitimacy to any suit. Therefore, the failure to commence proceedings with a valid writ of summons goes to the root of the case and any order emanating from such proceedings is liable to be set aside as incompetent and a nullity. See KIDA V. OGUNMOLA (2006) 13 NWLR (prt 997) 377 and MADUKOLU V. NKEMDILIM (supra).
I have stated right from the onset that the suit that gave rise to this appeal was commenced under the undefended list procedure. An action under the undefended list procedure is commenced by an application by the plaintiff for issuance of a writ of summons by the Registrar of the High Court. The application is usually ex parte and it is supported by an affidavit to which the proposed claim against the defendant must be attached

together with any other document considered relevant and available to the applicant as Exhibit.
If after hearing the application, and considering all the bundle of document filed, the Court is satisfied that the case is fit to be placed on the undefended list, the Court shall order that the writ of summons be issued by the Registrar and be marked as “undefended list”. After the writ of summons has been issued and marked by the Registrar, the plaintiff shall then deliver to the Registrar copies of his affidavit verifying his cause of action, the amount being claimed and stating clearly that the defendant does not have a defence to his suit. The plaintiff is required to deliver as many copies of his affidavit as there are parties against whom reliefs is sought. The Registrar shall in turn annex a copy of the affidavit to each copy of the writ of summons for service on the defendant or each defendant. See CASH AFFAIRS FIN. LTD V. INLAND BANK (NIG) PLC (2000) 5 NWLR (prt 658) 568, EQUITY BANK (NIG) LTD V. HALILCO (NIG) LTD (2006) 7 NWLR (prt 980) 568 and BAYERO V. MAINASARA & SONS LTD (2006) 8 NWLR (prt 982) 391. In OBARO V. HASSAN (supra), the Apex

Court was very emphatic that the issuance of a writ of summons under the undefended list procedure cannot precede the Order to do so. Therefore, if the Registrar issues a writ of summons before a judicial decision so to do, the writ of summons is incompetent and robs the trial Court of its competence to try the matter. See also NWAKAMA V. IKO LOCAL GOVT. CROSS RIVER STATE (1996) 3 NWLR (prt 439) 732.
Learned counsel for the respondent has strenuously argued that the appellants are estopped from raising any objection, having taken steps by filing their respective notices of intention to defend. In effect the appellants according to the learned counsel have waived their right to so complain.
A waiver of a procedural jurisdiction occurs when a litigant submits to the jurisdiction of the Court, inspite of his misgiving of the initiating process. It is however to be borne in mind that while procedural jurisdiction can be waived by a litigant, jurisdiction as a matter of substantive law cannot be waived by the litigant. Thus, jurisdiction as a substantive law is not amenable to be waived as is the case of procedural jurisdiction which can be waived.

See NDAYAKO V. DANTORO (2004) 13 NWLR (prt 889) 187, ETIM V. OBOT (2010) 12 NWLR (prt. 1207) 108, NAGOGO V. C.P.C (2013) 2 NWLR (prt 1339) 448 at 422 and OBUBRA LGC V. OKOI (2014) LPER – 23377.
Having held the view that a writ of summons issued as an undefended list without prior order of Court that the suit be entered in the undefended list is in law a nullity, the question here was the writ of summons in the instant case issued prior to an order of the Court?
The motion Exparte in the present case was moved on 30th July, 2015 and upon the grant of the reliefs sought on the motion paper, the writ was placed under the undefended list and marked “UNDEFENDED”. The writ of summons was strangely issued and endorsed on 27/7/2015 which pre-supposes that same was done prior to the order of the Court so to do. I have elsewhere in this judgment chronicled the procedure for commencing an action under the undefended list. And before entering the suit for hearing in an undefended list and accordingly marking same there are other domestic acts which must be accomplished by the Registrar within the contemplation of Order 11 Rules 8 – 11 of the extant Rules,

which were also enumerated above.
In the instant case, the writ of summons clearly pre dates the order of Court which was fundamentally defective and invariably goes to the root of the case. The writ of summons being an originating process just like a notice of appeal it requires leave of Court before being filed. I therefore agree with the submission of the learned counsel for the appellants that the Lower Court lacked the competence and the jurisdiction over the matter. This is so because an incompetent originating process cannot give rise to competent proceedings.

On the second issue, the main contention was that there was no evidence whatsoever to warrant the judgment under the undefended list procedure. An undefended list procedure is a recipe of summary judgment and applies to cases where there can be no reasonable doubt but the plaintiff is entitled to judgment and also where it is inexpedient to allow a defendant to defend for mere purposes of delay. It is thus for the plain and straight forward and not for the devious and crafty. See UBA PLC V. JARGABA (2007) 11 NWLR (prt 1045) 247 and LEWIS V. UBA PLC (2016) 6 NWLR (prt 1508)

329 at 349.
It was also held in plethora of judicial decisions that an affidavit in support of a notice of intention to defend a suit on the undefended list must disclose a defence on the merit. And what amount to a defence on the merit in an undefended list procedure is within the discretion of the trial Court.

In the instant case, the trial judge had meticulously examined the affidavit of the appellants and came to the irresistible conclusion that they were fanciful and not real defence.

In the final analysis and having found that the writ of summons was issued prior to an order of Court, the entire suit is to say the least a nullity ab initio. The appeal succeeds per force and it is accordingly allowed. Consequently, suit NO. HAB/16/2015 filed by the respondent at the Lower Court is hereby struck out for being incompetent and lacking in jurisdiction on the part of the trial Court.
Parties shall bear their respective costs.

MOJEED ADEKUNLE OWOADE, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother M. L. SHUAIBU JCA.
I agree with the reasoning and conclusion. I also agree that the

appeal is meritorious and ought to be allowed.
I abide with the consequential orders as well as the order as to costs.

YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading in draft the judgment just by my learned brother, M. L. SHUAIBU, JCA and I am in complete agreement with the reasoning and conclusion arrived in the lead judgment. I have nothing more to add.

I too strike out the originating process for want of jurisdiction. I abide by the other orders made therein.

Appearances:

Nse Williams with him, Bassey James Esq. For Appellant(s)

…For Respondent(s)