CHRISDON INDUSTRIAL CO. LTD. & ANOR. V. AFRICAN INTERNATIONAL BANK LIMITED
(2002)LCN/1107(CA)
In The Court of Appeal of Nigeria
On Thursday, the 14th day of March, 2002
CA/E/51M/2000
RATIO
WHETHER WHERE A GROUND OF APPEAL IS OF FACT OR OF MIXED LAW AND FACT, LEAVE OF THE COURT MUST BE OBTAINED.
“Where a ground is of fact or of mixed law and fact, a special leave of the court shall be sought and obtained.” Per UBAEZONU, J.C.A.
WHETHER A PARTY CAN FORMULATE MORE ISSUE THAN ONE FROM A GROUND OF APPEAL
“Formulating three issues where the appellants filed only two grounds of appeal is erroneous on the combined principles that a party cannot formulate more issue than one from a ground of appeal and that a respondent who does not cross-appeal or file a respondent’s notice cannot frame issue outside the ground of appeal filed by the appellant. See Eze v. Federal Republic of Nigeria (1987) 1 NWLR. (Pt.51) 506, 521 and 522; Idika v. Erisi (1988) 2 NWLR (Pt.78) 563, 579; and Atanda v. Ajani (1989) 3 NWLR (Pt.111) 511, 543-544.” Per OLAGUNJU, J.C.A.
INTERPRETATION OF ORDER 24 RULE 9 (5) OF THE HIGH COURT RULES OF ANAMBRA STATE 1988
“Furthermore, one must not close one’s eye to the provision of sub-rule (5) of the said rule 9. It provides: “Nothing herein shall preclude the court from making an order, should it so think fit, at any stage of the proceedings for the suit to be transferred to the general list on the ground that the suit is not suitable for placement in the undefended list.” This sub-rule shows that the court may at any stage opt for the trial of the suit in the ordinary way by transferring it to the general cause list. It has a restraining effect against rushing a suit to judgment as an undefended list cause. As my brother Olagunju JCA pointed out in the CCB. (Nig) Plc case (supra) at page 36. “….the craze (to rush the suit) may not offer any real advantage to the litigants; on the contrary, it may be counter-productive.” (words in bracket mine).” Per UBAEZONU, J.C.A.
INTERPRETATION OF ORDER 3 RULE 2(5) COURT OF APPEAL RULES
“Order 3 rule 2(5) is instructive. It provides: “(5) The appellant shall not without the leave of the court urge or be heard in support of any ground of appeal not mentioned in the notice of appeal, but the court may in its discretion allow the appellant to amend the grounds of appeal upon payment of the fees prescribed for such amendment and upon such terms as court may deem just.” (italics mine) I may ask, is the function prescribed in that rule performed by the party or counsel? The function is always performed by counsel even if the word “appellant” is used. In the same vain, the signing of a notice of appeal can be done by counsel” even if the word “appellant” appears in the Form.” Per UBAEZONU, J.C.A.
INTERPRETATION OF RULE 14 OF ORDER 5 OF THE ANAMBRA STATE HIGH COURT RULES, 1989
“The first step, viz, whether a case is a proper one to be placed on the undefended list is one loosely defined by rule 14 of Order 5 of the Anambra State High Court Rules, 1989, which provides as follows: “Whenever application is made 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 Registrar shall enter the suit in what shall be called the ‘undefended list’.” From the provision of that rule there is obviously no role reserved for the court to play before a case is placed on the undefended list. This is because of the omission from that rule of the phrase ‘the court shall, if satisfied that good grounds for believing that there is no defence thereto’ which is contained not only in the parallel provisions of the Rules of other High Courts in the country but more significantly in rule 9 of Order III of the High Court Civil Procedure Rules of the former Eastern Nigeria, Cap. 61 of the 1963 Edition of the Laws of that jurisdiction, which the current Anambra State High Court Rules replaced. the result is that under rule 14 of Order 5 reproduced above what determines whether a case should be placed on the undefended list is the declaration by the plaintiff in his verifying affidavit that upon the grounds set forth by him the defendant has no defence to the action. ” Per OLAGUNJU, J.C.A.
THE AIM AND PURPOSE OF THE UNDEFENDED LIST PROCEDURE
“The undefended list procedure is designed to cut short the procedure in the High Court by eliminating, in appropriate cases, the technicalities of pleadings and all that go with them. It has however turned out to be a booby-trap that does no one any good. As Aniagolu JSC aptly put it in Ntukidem v. Oko (1986) 5 NWLR (Pt.45) 909:- “A snappy short-cut decision, bereft of an examination of the merits of the case often settles nothing but rather exacerbates the conflicts.” Per UBAEZONU, J.C.A.
THE PURPOSE OF A NOTICE OF INTENTION TO DEFEND IN AN UNDEFENDED LIST PROCEDURE
“All that a notice of intention to defend is required to do is to satisfy the court that there is a “triable issue”, or raise a bona fide issue for trial.” ” Per UBAEZONU, J.C.A.
THE CRUCIAL STEPS TO CONSIDER IN AN ACTION UNDER THE UNDEFENDED LIST PROCEDURE
“In an action under the undefended list procedure two steps are identified as crucial the primary one being the scrutiny of the plaintiff’s action with a view to seeing whether there is a good reason to believe that it is a proper action that should be placed on the undefended list. It is only when a finding is made on the state of the plaintiff’s action and it is properly assessed as one which because of its obvious nature is non- contentious that it should be placed on the undefended list. Until that decision is made there is no basis for considering the defendant’s ‘defence. By failure to examine the plaintiff’s claims before deciding whether there is a defence to the action the learned trial Judge had started on a wrong footing. He began to erect the legal structure of an action from the roof and the result is foregone – a catastrophic collapse that leaves nothing to salvage.” Per OLAGUNJU, J.C.A.
WHETHER THE DECISION TO PLACE A CASE ON THE UNDEFENDED LIST OF THE COURT IS A JUDICIAL DECISION WHICH MUST BE TAKEN JUDICIALLY AND JUDICIOUSLY IN A JUDICIAL PROCEEDING
“Thus, the prosaic judgment of the learned trial Judge fell far short of what is expected of a summary trial under the undefended list where the court skipped the first step of the procedure held by this court in Maley v. Isah, supra, as vital for the reasons which are succinctly articulated by Mohammed, JCA., at page 664, where he reflected as follows: ” … the decision to place a case on the undefended list of the court is essentially a judicial decision which must he 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 or judiciously in accordance with the rules of the court” (italics Mine). The reasoning in that conclusion is along the line of the earlier decision of this court in Nwakama v. Iko Local Government of Cross River State (1996) 3 NWLR (Pt.439) 732, 739, where it was held, per Achike, JCA as he then was, that: “It is …. 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 him, whether or not to place a case in the undefended list” In a similar strain, this court in Baba v. Habib Nigeria Bank Ltd. (2001) 7 NWLR. (Pt.712) 496, 504, held that placing a suit on the undefended list is not automatic. It must be based on the trial Judge sifting the application for a writ of summons so as to be satisfied that the claim is for recovery of debt or liquidated money to which the defendant has no defence. It is a decision involving the exercise of judicial discretion that must be shown visibly to have been done judicially and judiciously. ” Per OLAGUNJU, J.C.A.
JUSTICES:
EUGENE CHUKWUEMEKA UBAEZONU Justice of The Court of Appeal of Nigeria
SULE AREMU OLAGUNJU Justice of The Court of Appeal of Nigeria
JOHN AFOLABI FABIYI Justice of The Court of Appeal of Nigeria
Between
- CHRISDON INDUSTRIAL CO. LTD.
2. CHIEF (DR.) CHRISTOPHER EFOBI – Appellant(s)
AND
AFRICAN INTERNATIONAL BANK LIMITED – Respondent(s)
UBAEZONU, J.C.A. (Delivering the Leading Judgment): By a suit filed under the undefended list cause on 2nd September, 1990 at the High Court of Onitsha Judicial Division in Anambra state of Nigeria, the respondent claimed against the appellants jointly and severally as follows:
1. the sum of N26,470,327.30 being principal sum plus interest as at 31st July, 1998 and
2. 25% interest per annum on the judgment debt from 1st August, 1998 until final liquidation of the entire debt.
3. Costs.
By the rules of court under which the suit was filed, the claim was supported by an affidavit of 7 paragraphs showing the circumstances of the claim and attaching a number of exhibits. The claim arose from overdraft/loan facilities granted by the respondent to the 1st appellant guaranteed by 2nd appellant.
On the 3rd December, 1998, the appellants filed a notice of intention to defend under Order 24 rule 9 of the High Court Rules of Anambra State, 1988. Accompanying the notice is an affidavit of 18 paragraphs to which was attached a number of exhibits. On 20th May, 1999 the matter came up for hearing at the High Court. The proceeding for hearing is as set out at page 43 of the record. Judgment was given for the plaintiff as claimed for N26,470,327.30 with 25% interest and N5000 costs in favour of the respondent. Dissatisfied with the said judgment, the appellants have appealed to this court. The parties have also filed their respective briefs.
In their brief, the appellants formulated 2 issues for determination as follows:-
“1. Was the lower court right to have proceeded with hearing the suit without considering the application for adjournment?
2. Did the appellants’ notice of intention to defend, raise a triable issue so as to entitle the appellants to be let in to defend?”
As can be seen from the brief, the first issue relates to the alleged failure of the lower court to consider an application for adjournment as contained in the counsel’s letter dated 19th May, 1999. Learned counsel for the appellants conceeds that it is within the discretion of the court to grant or refuse an application for adjournment but says the discretion must be exercised judicially and judiciously. In the instant case, counsel submits, the lower court wholly disregarded the application. Thus, the appellants were shut out from arguing their case. The case of Obomhense v. Erhahon (1993) 7 NWLR (Pt.303) 22 at 47 was referred to and relied upon.
The second issue complains of the judgment of the lower court which says that the appellants’ notice of intention to defend does not show a “defence on the merit” it is argued that the decision is wrong in the light or face of material conflicts in the affidavits of the parties. Moreover, the lower court in no where in its judgment did it consider the defence which it found to lack merit. The court did not evaluate the affidavit evidence before its learned counsel therefore submits that there was no “hearing” as required by the rules of court – refers to Azumi v. Pan African Bank Ltd. (1996) 8 NWLR (Pt.467) 462 at 472.
It is submitted that if the lower court had considered the affidavit of both parties, it would have been satisfied that the notice of intention to defend had made out a triable issue.
It is not in issue, the appellants argue that the appellants owe the respondent a certain sum of money the issue to be resolved by the court was how much the appellants owe the respondent. There was a serious doubt as to the sum of N13,019,400.22 which the respondent debited to appellants’ account as commissions, fees and other charges. The lower court overlooked the matter. Moreover, the appellants had instituted an action against the respondent challenging their indebtedness to the respondent. The appellants submit that having regard to all the circumstances of the case, it cannot be said that the appellants have not made out a triable issue.
It is further contended that the undefended list procedure does not allow the court to go into the merits of the case on affidavits. What the court had to decide was whether there was a triable issue to go before the court. – See UNN v. Orazulike Trading Co. Ltd. (1989) 5 NWLR (Pt.l19) 19 at 31; Jipreze v. Okonkwo (1987) 3 NWLR (Pt.62) 737 at 744; Military Government of Nigeria v. Sani (1990) 4 NWLR (Pt.l47) 688 at 699;. Ezuma v. Nkwo Market Community Bank Ltd. CA/E/94/99 delivered on 27th April, 2000 (unreported); Co-operative & Commerce Bank (Nigeria) Ltd. v. Samed Investment Co. Ltd. (2000) 4 NWLR (Pt.651) 19.
The respondent also filed a brief of argument and therein formulated 3 issues for determination thus:
“(a) Did the failure of the trial court to grant an adjournment breach the rule of fair hearing as to cause a miscarriage of justice in the absence of any such application for an adjournment?
(b) Was the trial court wrong in entering judgment without much ado after seeing the various written admission (sic) of the respondents (sic) claim by the appellant in
(i) The exhibits attached to both the respondent (sic) affidavit and further and better affidavit?
(ii) Some paragraphs of their affidavit in support of notice of intention to defend?
(c) Did the trial court occasion a miscarriage of justice by the mere use of the words “The notice of intention does not show defence on the merit?”
Arguing his 1st issue, learned counsel for respondent submits that there was no application for adjournment before the court on 20th May, 1999 being the date the case came up for hearing in the lower court. Counsel goes on to argue that even if there was any such application, it was within the discretion of the court to grant or refuse it. Such exercise of discretion cannot be faulted unless it was improperly exercised or exercised without regard to the conditions necessary for the exercise of such discretion.
On the 2nd issue, it is argued that admissions of the respondent’s claim in the affidavit of the appellant are sufficient to support entering judgment for the respondent. The respondent relies on paragraph 8(b) of the appellants’ affidavit and exhibit 1 at page 6 of the record. The effect of such admissions counsel submits, is judgment for respondent – refers to and relies on Omoregbe v. Lawani (1980) 3 – 4 S.C 108 at 117; Boshalli v. Allied Com. Exporters Ltd. (1961) ANLR 917. It is further submitted that since the respondent’s further and better affidavit was not challenged, it is deemed to be admitted. Counsel relies on Globe Fishing Co. Ltd. v. Coker (1990) 7 NWLR (Pt.162) 265, (1990) 11 SCNJ 56 and submits that in the circumstance, no further evaluation of evidence is necessary.
Arguing the 3rd issue, it is submitted that the mere use of the words that the “notice of intention does not show defence on the merits”, does not occasion a miscarriage of justice. Learned counsel contends that so long as the judgment is correct as in this case, the words used are immaterial. The respondent raises a preliminary objection to the effect that there is no appeal properly before this court in that the notice of appeal filed by the appellants is incurrably defective and contrary to law not being in accordance with Civil Form 3 as prescribed by Order 3(2) of the Court of Appeal Rules as the said notice was signed by counsel instead of the appellants themselves. He refers to Addis Ababa v. D.S. Adeyemi (1976) 12 S.C. 51 at 59; Olumide v. Ajetunmobi FCA1K/6/80 of 15/7/80 reported as D.A.C. page 16 at paragraph 7.28. Counsel submits that an incompetent notice must be struck out – refers to Mohammed v. Olawunmi (1990) 2 NWLR (Pt.133) 458, (1990) 4 SCNJ 23.
At the hearing of the appeal, both counsel addressed the court. Learned counsel for the appellants refers to the record of proceedings which contains the application for adjournment. On the judgment of the lower court, counsel submits that there must be a hearing before the judgment is entered. He refers to CCB (Nigeria) PLC v. Samed (2000) 4 NWLR (Pt.651) 19. The lower court ought to have considered the affidavit before arriving at its judgment. Counsel for the respondent maintained that there was no letter for adjournment.
This appeal, once again, brings to the fore the problems which arise from the way and manner the lower courts rush proceedings in an undefended list cause. The procedure is designed to cut short the hearing of a suit in the High Court in appropriate cases. The way and manner however, some of the lower courts deal with cases in the undefended list would seem to negate the purpose which the procedure is designed to achieve. Thus, in a suit filed in 1998 (over 3 years ago) it is still being contended in this courts whether the lower court did or did not do what it ought to do under the rules governing the suit.
Let me start with the preliminary objections. They were formerly two but one of them was withdrawn leaving only one. The substance of the objection for consideration is that the notice of appeal was signed by counsel instead of the party as provided for by Civil Form 3 of the Court of Appeal Rules. This is an interesting objection which calls for proper judicial consideration.
For ease of reference, I shall set out the Civil Form 3 hereunder in so far as it concerns a notice of appeal.
NOTICE OF APPEAL (Order 3, Rule 2)
TAKE NOTICE that the plaintiff/defendant being dissatisfied with the decision/that part of the decision more particularly stated in paragraph 2 of the … court contained in the judgment/order of dated the day of 19 doth hereby appeal to the Court of Appeal upon the grounds set out in paragraph 3 and will at the hearing of the appeal seek the relief set out in paragraph 4.
And the appellant further states that the names and addresses of the persons directly affected by the appeal are those set out in paragraph 5.
2. Part of decision of the lower court complained of.
3. Grounds of Appeal
(1), (2). (3) etc., 4. Relief sought from the Federal Court of Appeal, 5. Persons directly affected by the appeal:
Name, Address, (1), (2), (3), etc.
DATED this………….. day of ………….. 19 ………………………….. Appellant whose address for service is….
It will be noticed that the Form contains, among others, the grounds of appeal, Order 3 rule 2 prescribes what the notice of appeal should contain. Again, the rule of court states that the notice of appeal “shall set forth the grounds of appeal.” The grounds of appeal are invariably matters of law. Where a ground is of fact or of mixed law and fact, a special leave of the court shall be sought and obtained. A careful reading of Order 3 rule 2(1) (2) and (3) shows clearly that the duties to be performed in settling a notice of appeal as regards the grounds of appeal are beyond the competence of a lay man or a man not learned in the law. It must be realised that some of the litigants are not only lay men but also illiterates. When a person appends his signature to a document it means that he either prepared it or approves of it. The position with, an illiterate is more difficult as a jurat must also be affixed. It is clear from the provision of Order 3 rule 2 that the functions to be performed in settling a notice of appeal are functions to be performed by counsel if the party has one. Order 3 rule 2(5) is instructive. It provides:
“(5) The appellant shall not without the leave of the court urge or be heard in support of any ground of appeal not mentioned in the notice of appeal, but the court may in its discretion allow the appellant to amend the grounds of appeal upon payment of the fees prescribed for such amendment and upon such terms as court may deem just.” (italics mine) I may ask, is the function prescribed in that rule performed by the party or counsel? The function is always performed by counsel even if the word “appellant” is used. In the same vain, the signing of a notice of appeal can be done by counsel” even if the word “appellant” appears in the Form. The Form cannot override the rule or the law. Justice cannot be sacrificed on the alter of form. The era of extreme technicality in our courts at the expense of justice is gone. What a party can do in a case, his counsel can do it unless the law or the rule of court specifically rules out the performance of the function by counselor where it is practically impossible for counsel to perform such a duty such as giving evidence in court. As Lord Collins M.R. stated in Coles and Ravenshea in re – “Although the rule of court stands as a guide to the court in conducting court business, the court must not hold it as a “mistress” but as a “handmaid.” I hold that the notice of appeal is properly before the court. The preliminary objection is accordingly overruled.
I now come to the substance of the appeal. I shall first deal with the issue of adjournment as appearing in both briefs. At page 42 of the record appears a letter of adjournment. The appellant contends that the letter was not brought to the notice of the court before judgment was entered nor was the letter given to the opposite counsel even if on the face of it, the letter says that it was copied to the opposite counsel. If the stand taken by counsel for the respondent is correct, it follows that there was no application for adjournment before the court at the time the judgment was entered. The court would therefore be right to do what it did, that is, proceeding with the case without considering any application for adjournment because there was none. If on the other hand there was a letter applying for an adjournment but the application was not considered before the court proceeded to judgment, the court would be wrong, very wrong, to do what it did. Unfortunately, the letter was not stamped and dated by the Registry as it ought to do. On the receipt of any letter by the Registry for the attention of the court, the Registry should immediately stamp and date the letter before passing it on to the court. In some courts, the Registry besides stamping and dating such a letter also records on the letter the time the letter was received in the Registry. This practice is important and should be adhered to by all Registries of courts throughout the country.
Now what do I hold in the circumstances of this case? Should I hold that the letter was before the lower court but it failed to refer to it or make use of it or that the attention of the court was not brought to it?
The onus is on the appellants to establish that their letter applying for an adjournment was before the court but the court failed to take cognisance of it. The discharge of such onus will require further evidence viva voce or affidavit. In view of the fact that this dispute or conflict is before this court, and never before the lower court, this court and indeed every other court should always bend backward to do justice by observing the principle of fair hearing. Subject to my decision on the other issues, this may be a case where the lower court will be ordered to hear both sides before arriving at its judgment.
I shall now consider the 2nd issue of the appellants and the 2nd and 3rd issues of the respondent together. They all point to the same issue and can conveniently be considered together. The question here is whether the lower court was right in entering judgment in the way and manner it did without evaluating the evidence as contained in the affidavits in support of the claim and in support of the notice of intention to defend and whether the lower court was right in holding that the notice of intention to defend “does not show defence on its merits.” This is the crux of this appeal. This is also where many trial courts falter by taking too simplistic a stance on proceedings on the undefended list. The undefended list procedure is designed to cut short the procedure in the High Court by eliminating, in appropriate cases, the technicalities of pleadings and all that go with them. It has however turned out to be a booby-trap that does no one any good. As Aniagolu JSC aptly put it in Ntukidem v. Oko (1986) 5 NWLR (Pt.45) 909:-
“A snappy short-cut decision, bereft of an examination of the merits of the case often settles nothing but rather exacerbates the conflicts.”
Now, in the appeal under consideration there were before the lower court affidavits in support of the claim via an affidavit and further and better affidavit; there was an affidavit in support of the notice of intention to defend. To these affidavits was attached a number of exhibits. There were indeed over 16 exhibits attached to the several affidavits. All these affidavits and exhibits attached thereto were apparently considered in a two sentence judgment at page 43 of the record of appeal. Is that the intendment and spirit of the provisions of Order 24 rule 9 of the High Court Rules of Anambra State 1988? I think not. What was done in the court below looks like a rough and ready type of justice of the Roman era.
I have had cause to examine rather meticulously the undefended list procedure rule of Anambra State in the case of CCB (Nigeria) PLC v. Samed Investment Co. Ltd. (2000) 4 NWLR (Pt,651) 19. I have had a second look at that judgment. I have no reason to change the views I expressed in the said judgment. Judges of the lower court and lawyers who want a shortcut to justice may hold a different view. They are entitled to their views. That is the beauty of the law and of the legal profession. So long as Order 24 rule 9 of the High Court Rules of Anambra State 1988 stands as it is, so my views remain and so will the lower courts be bound unless and until the Supreme Court says otherwise.
As I pointed out in CCB. (Nig) Plc v. Samed Investment Co. Ltd. (supra) the problem with Order 24 rule 9 stems from the second part of sub-rule (4) which provides:
“… or where he delivered the notice and affidavit but the court is not satisfied therefrom that there is raised any bona fide issue for trial between the plaintiff and the said defendant, then and in such case, the suit shall be heard as an undefended suit and judgment given thereon, without calling upon the plaintiff to summon witnesses before the court.” (italics mine).
The question is – how does the court become “not satisfied” that a bona fide issue for trial has been raised? Is it not by considering the affidavit evidence before it? The affidavit evidence shall be considered in the judgment to be delivered. Moreover, the rule does not say that as soon as a court is not satisfied that a bona fide issue for trial has been raised, the court shall enter judgment. No, it says that the suit shall be “heard” as an undefended suit. How is the suit heard as an undefended suit? The plaintiff is relieved from the burden of summoning “witnesses before the court to prove his case formally.”
Furthermore, one must not close one’s eye to the provision of sub-rule (5) of the said rule 9. It provides:
“Nothing herein shall preclude the court from making an order, should it so think fit, at any stage of the proceedings for the suit to be transferred to the general list on the ground that the suit is not suitable for placement in the undefended list.”
This sub-rule shows that the court may at any stage opt for the trial of the suit in the ordinary way by transferring it to the general cause list. It has a restraining effect against rushing a suit to judgment as an undefended list cause. As my brother Olagunju JCA pointed out in the CCB. (Nig) Plc case (supra) at page 36.
“….the craze (to rush the suit) may not offer any real advantage to the litigants; on the contrary, it may be counter-productive.” (words in bracket mine).
There is another aspect of this appeal which is raised in the issues under consideration. Part of the two sentence judgment of the lower court says that the notice of intention to defend “does not show defence on the merit”. Must the notice of intention to defend show a defence on the merits of the case? The answer is No. All that a notice of intention to defend is required to do is to satisfy the court that there is a “triable issue”, or raise a bona fide issue for trial.” The affidavit accompanying the notice of intention to defend does not have to show “a defence on the merits.” By requiring the notice of intention to defend to show a defence on the merits the learned trial Judge has put the requirement of the said notice on a much higher pedestial than as prescribed by the rules. It is not a question of mere “misuse of words”, as is contended by learned counsel for respondent. There is nothing in the record to show that if the learned trial judge had adverted his mind to the correct phraseology that he would have come to the same judgment.
In the light of the above, this appeal must be allowed and the judgment of the lower court set aside. In the light of the first issue on adjournment, the proper order is to send the case back to the lower court for trial. The appeal is allowed. Judgment of the lower court is set aside. I order that this case be remitted to the lower court; that the case be entered on the general cause list and pleadings shall be ordered and filed. Minimum delay shall be observed in the filing of the pleadings and hearing of the case in view of the fact that the case has been unduly delayed. Each party to this appeal shall bear his/its own costs.
OLAGUNJU, J.C.A.: The judgment just delivered by my learned brother, Ubaezonu, JCA., has again brought to the fore the intractable issue of the summary procedure of undefended list that is becoming perennial on the legal horizon of this Judicial Division. He has dealt perceptively with the core of the problem about the poor understanding of the objective of the procedure and a misconception of the nitty-gritty of its operation by the generality of the counsel formulating the claims and the judges upon whom it fell to administer the law who have not cut their teeth on the procedure. I agree with his conclusion and would like to make a few concurring comments in elaboration.
On the preliminary objection by the respondent to the notice of appeal being signed by the appellant’s counsel instead of the appellants, the technical nature of the formulation of an appeal from the Rules of this court as they stand to a matter for those with grounding in law. The leading judgment has painstakingly gone into the intricacies from the background of the applicable rules. I can only add that that, probably, accounts for the definition in rule 2 of Order 1 of the Court of Appeal Rules, 1981, of the word ‘appellant’ to include the legal practitioner representing him. In my view, it is immaterial whether an appellant or his counsel signed the notice of appeal which in the generality of cases is the first step in the exercise of the constitutional right of the citizenry to challenge any legal decision against his interest which should not be stifled by technicality.
Conversely, there is a preliminary objection open against the respondent on the formulation of issues for determination. Formulating three issues where the appellants filed only two grounds of appeal is erroneous on the combined principles that a party cannot formulate more issue than one from a ground of appeal and that a respondent who does not cross-appeal or file a respondent’s notice cannot frame issue outside the ground of appeal filed by the appellant. See Eze v. Federal Republic of Nigeria (1987) 1 NWLR. (Pt.51) 506, 521 and 522; Idika v. Erisi (1988) 2 NWLR (Pt.78) 563, 579; and Atanda v. Ajani (1989) 3 NWLR (Pt.111) 511, 543-544. In my view, issue 3 in the respondent’s brief of argument formulated, as it were, in nubibus is incompetent. Therefore, the question of whether the conclusion by the learned trial Judge that the appellants’ notice of intention to defend did not disclose a defence on the merit occasioned a miscarriage of justice in a non-starter.
The issue of whether the refusal of an adjournment to the appellants on the hearing date is a wrong exercise of discretion by the learned trial Judge which amounts to a breach of the right of fair hearing is inconclusive in the face of the evidence relied upon by the appellants which did not positively establish that the letter of adjournment by learned counsel for the appellants, was brought to the notice of the court. Besides, in my view, on a proper reading of rule 14 of Order 5 of the Anambra State High Court Rules, 1988, that describes what types of action are triable summarily as undefended causes I do not think that at the hearing interpretation of notice of intention to defend under sub-rule 9(2) of Order 24 calls for argument because of the liberal interpretation of the words ‘triable issue’ or ‘bona fide issue’ an ‘one that will preclude entry of summary judgment whenever there is the slightest doubt as to facts’: see Obi v. Nkwo Market Community Bank Ltd. (2001) 2 NWLR (Pt.696) 113, 126.
Indeed, in Marley v. Isah (2000) 5 NWLR (Pt.658) 651, 666, this court held that the decision whether an action should be heard as undefended vis-a-vis placement on the undefended list – which is determined by whether notice of intention to defend the action discloses a triable issue does not envisage an address by counsel. The decision is exclusively the preserve of the court and that it was wrong for the trial court to have indulged the defendant’s counsel to address the court as that is not in the spirit of the rules governing the procedure of undefended list trial. The court was interpreting the provisions of rules 1 and 3 of Order 22 of Kaduna State High Court (Civil Procedure) Rules, 1987 which is in pari materia with the provisions of rule 14 of Order 5 and sub-rules 9(2) and (4) of Order 24 of the Anambra State High Court Rules, 1988. Therefore, if address by counsel for the defendant at the hearing of an action on the undefended list is superfluous the presence in court of learned counsel for the defendants/appellants at the hearing at the court below is not a desideratum. Consequently, the application for an adjournment of the hearing by learned counsel for the appellant is futile.
One last point on the peripheral issues. The appellants have flaunted the pre-emptive action which they filed against the respondent in suit No. 0/538/98 in which they sought the reliefs enumerated in exhibit ‘E’ annexed to the affidavit supporting their notice of intention to defend. If by that action the appellants were hoping to seek the aid of the court to stall the repayment of their indebtedness to the respondent which they did not deny they must be mistaken about the stand of the courts in this country as courts of both law and equity. In this regard, the decision of this court in Union Bank of Nigeria Ltd. v. Penny-Mart Ltd. (1992) 5 NWLR (Pt.240) 228, 245-246, is probably, all they need to be jolted out of their flight of fancy. In any case, whether in an action on the undefended list such a pre-emptive action is a triable or bonafide issue is a moot point which does not affect the merit of the present appeal.
That brings me to the crux of the dispute which is whether the appellants’ notice of intention to defend the respondent’s action raised a triable issue in which it is lumped together to separate but related steps, i.e, whether the action is a proper one to be placed on the undefended list and whether the facts deposed to in the notice of intention to defend disclosed triable issues to justify transferring the case to the general cause list. There must be an affirmative answer that the first step was taken by the trial court before any examination of the second step which becomes unnecessary where answer to the first step is in the negative.
The first step, viz, whether a case is a proper one to be placed on the undefended list is one loosely defined by rule 14 of Order 5 of the Anambra State High Court Rules, 1989, which provides as follows:
“Whenever application is made 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 Registrar shall enter the suit in what shall be called the ‘undefended list’.”
From the provision of that rule there is obviously no role reserved for the court to play before a case is placed on the undefended list. This is because of the omission from that rule of the phrase ‘the court shall, if satisfied that good grounds for believing that there is no defence thereto’ which is contained not only in the parallel provisions of the Rules of other High Courts in the country but more significantly in rule 9 of Order III of the High Court Civil Procedure Rules of the former Eastern Nigeria, Cap. 61 of the 1963 Edition of the Laws of that jurisdiction, which the current Anambra State High Court Rules replaced. the result is that under rule 14 of Order 5 reproduced above what determines whether a case should be placed on the undefended list is the declaration by the plaintiff in his verifying affidavit that upon the grounds set forth by him the defendant has no defence to the action.
This is a serious lacuna in the procedure on the undefended list in which no reference is made to the court to exercise any power or discretion to vet the application for a writ of summons for summary procedure under the undefended list so as to ensure that not only is the action one for recovery of debt or liquidated money demand as claimed by the plaintiff but also as declared by him the defendant has no defence to the action.
The hiatus was examined at length in a recent unreported decision of this court in case No. CA/E/15/2001, Brifina Ltd. v. Intercontinental Bank Ltd., delivered on 20/212002. It was held that the omission from rule 14 of Order 5 of the Anambra State High Court Rules, 1988, of any supervisory power or discretion by the court to scrutinize application for writ of summons for summary procedure under the undefended list can not derogate from the power of the court under sections 135-137 of the Evidence Act to determine as a pre-condition whether the plaintiff’s verifying affidavit supporting application for a writ of summons disclosed a prima facie case to justify the case being placed on the undefended list. It was further held that since by operation of rule 14 of Order 5 the action is technically placed on the undefended list the moment it was filed without verifying the claims the court’s power of scrutiny of the plaintiff’s claims is defence till the hearing of the case when the issue of the correct placement on the undefended list will be examined as a preliminary matter before the issue of whether there is a triable issue can be gone into.
Against this background how far did the trial at the court below satisfy the scrutiny of the respondent’s claims? Are the respondent’s claims for recovery of debt or liquidated money demand? As asseverated by the respondent’s verifying affidavit of 2/9/98 do the appellants have no defence to the action? These are the two questions which must be answered by the respondent’s verifying affidavit in the affirmative before the action can be regarded as having been properly placed on the undefended list. Nowhere in the proceedings of the court below is any of these matters considered. Therefore, the question of whether the action satisfied the precondition of being placed on the undefended list was not considered by the learned trial judge who on page 43 of the record in a meagre judgment of two sentences awarded all the reliefs claimed by the respondents.
Thus, the prosaic judgment of the learned trial Judge fell far short of what is expected of a summary trial under the undefended list where the court skipped the first step of the procedure held by this court in Maley v. Isah, supra, as vital for the reasons which are succinctly articulated by Mohammed, JCA., at page 664, where he reflected as follows:
” … the decision to place a case on the undefended list of the court is essentially a judicial decision which must he 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 or judiciously in accordance with the rules of the court” (italics Mine).
The reasoning in that conclusion is along the line of the earlier decision of this court in Nwakama v. Iko Local Government of Cross River State (1996) 3 NWLR (Pt.439) 732, 739, where it was held, per Achike, JCA as he then was, that:
“It is …. 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 him, whether or not to place a case in the undefended list”
In a similar strain, this court in Baba v. Habib Nigeria Bank Ltd. (2001) 7 NWLR. (Pt.712) 496, 504, held that placing a suit on the undefended list is not automatic. It must be based on the trial Judge sifting the application for a writ of summons so as to be satisfied that the claim is for recovery of debt or liquidated money to which the defendant has no defence. It is a decision involving the exercise of judicial discretion that must be shown visibly to have been done judicially and judiciously.
From the foregoing, it is clear that in the nature of summary procedure of the undefended list where an application for a writ of summons under that originating process does not satisfy the first step the writ of summons though technically placed on the undefended list by operation of rule 14 of Order 5 must be transferred to the general cause list without further ado in which case the question of whether the defendant filed a notice of intention to defend or whether the notice of intention to defend filed disclosed a triable issue becomes otiose. This, in law, implies that notwithstanding the mechanical placing of an action on the undefended list by operation of rule 14 of Order 5 the plaintiff’s application for a writ of summons under the undefended list did not establish a prima facie case as the rationale underlying the defendant’s obligation to file notice of intention to defend.
Apart from the bungle made of the trial by the learned trial Judge what intrinsically is the merit of the respondent’s action to justify its being placed on the Undefended List? The respondent as the plaintiff filed her action on 2/9/98 with a 7-paragraph verifying affidavit in which she claimed from the appellants the sum of N26,470,327.30 as at 31/7/98. In sub-paragraph 5(d) of the affidavit the appellants are shown to have admitted, in their letter of 30/6/98, owing the respondent the sum of N24,128,812.22, an amount short of the respondent’s claim. Placing a suit on the undefended list for recovery of debt or liquidated money demand presupposes that the amount of indebtedness is fixed or ascertainable by an agreed formula. The sum of N2,341,515.08, representing the difference between the respondent’s claim of N26,470,327.30 and the sum of N24,128,812.22 as the amount acknowledged by the appellants as their indebtedness to the respondent is one vast area of discrepancy that makes the claim of the respondent to be contentious.
Thus, on the respondent’s own showing there is no agreement between what is being claimed and what is shown to have been admitted. The discrepancy invalidates the affirmation by the respondent that the appellants had no defence to his action and undermines the basis of the action being placed on the undefended list which assumed the correctness of the amount of indebtedness asseverated by the claimant. The summary procedure of undefended list does not admit of approximation of the amount claimed or admitted nor is it open on the procedure to award part-judgment, a relief for which enormous scope is provided under the general cause list for which see rules 10-15 of Order 23 of the Anambra State High Court Rules, 1988, on admissions giving rise to judgment. It must be emphasized without equivocation that the concept of liability that is not open to contention by the defendant in form of summary proceedings like an undefended action presupposes a rhyme between the amount claimed and the amount verified by the affidavit evidence, in this context between the statement in the plaint and the amount admitted by the debtor, if any. A discrepancy between the amount claimed and the figure that can be ascertained from the supporting evidence here between the sum of N26,470,327.30 claimed by the respondent and evidence produced by her of acknowledgment of indebtedness of N24,128,812.22 by the appellants raises a contentious issue that can be resolved only by being tried. Such an action which on the evidence produced by the plaintiff herself is open to argument and not the type which is contemplated as suitable to be placed on the undefended list.
Before I conclude, let me note in parenthesis one strange aspect of the evidence of the respondent on behalf of whom a litigation secretary in the office of her counsel deposed to both the verifying affidavit and further affidavit on matters connected with the technical operation of the Bank, the respondent. Whether for probative purposes such an affidavit should be regarded as hearsay in the sense of affirmation by the deponent that the officer in charge of the appellants’ accounts with the respondent, Mr. Osigwe, ‘tells me to tell the court’ does not fall to be decided to warrant the probe of how conversant is the deponent with the facts she deposed to. In any case, the naivety of Miss Ogochukwu Alor, ‘the whipping-girl’, is clear from the negative effect of the further affidavit she deposed to almost three months after the writ of summons was issued; for if the appellants in their letter of 30/6/98 annexed to the verifying affidavit of 2/9/98 as exhibit ’10’ admitted the appellants’ indebtedness to the respondent in the sum of N24,128,812.22 as of 26/6/98 the appellants’ letter of 17/3/98 admitting being indebted to the respondent in the sum of N23,364,858.66 as at 6/2/98 that was the subject of the further affidavit becomes vacuous; moreso, as the acknowledgment in the letter of 26/6/98 is the foundation for the issuance of the writ of summons under the undefended list. The decision of this court in Ibe v. Onuorah (No.2) (2001) 9 NWLR (Pt.719) 519. 527, sums up the drawback of the predisposition of counsel and their staff to swearing to affidavit instead of parties who are the masters of the facts of their case.
Be that as it may, from the foregoing analysis the hearing of this case at the court below under the summary procedure of the undefended list is marred by widespread defects that stemmed from failure of the learned trial Judge to perform the primary duty of first determining whether the suit was a proper one to be placed on the undefended list. Having failed to make the primary inquiry there was no competent action before the learned trial Judge over which he could exercise jurisdiction; thus the purported hearing of the action was a charade and of no effect. The putative trial by the learned trial Judge followed the pattern of what is becoming the traditional approach of beginning from probing the notice of intention to defend under rule 9 of Order 24 of the Rules of the trial court in total disregard of the fundamental question of whether the action is a proper one to be placed on the undefended list.
In an action under the undefended list procedure two steps are identified as crucial the primary one being the scrutiny of the plaintiff’s action with a view to seeing whether there is a good reason to believe that it is a proper action that should be placed on the undefended list. It is only when a finding is made on the state of the plaintiff’s action and it is properly assessed as one which because of its obvious nature is non- contentious that it should be placed on the undefended list. Until that decision is made there is no basis for considering the defendant’s ‘defence. By failure to examine the plaintiff’s claims before deciding whether there is a defence to the action the learned trial Judge had started on a wrong footing. He began to erect the legal structure of an action from the roof and the result is foregone – a catastrophic collapse that leaves nothing to salvage.
From what has been demonstrated by examination of the verifying affidavit to which the appellants were called upon to plead in the form of notice of intention to defend there is a discrepancy between what the respondent claimed and the evidence offered in support of the claims. The discrepancy is the crucial probative shortfall which negates the respondent’s affirmation that the appellants have no defence to her claims, a self-generating conflict that ruins any argument that, the plaintiff’s action is non-contentious and in the sequel makes the action an inappropriate one to be placed on the undefended list, ab initio.
The result is that such an action fails the test of what is required to be established before calling on the defendant to enter upon his defence implied by filing notice of intention to defend stipulated by sub-rule 9(2) of Order 24 of the Anambra State High Court Rules, 1988. Within the frame work of the rules on the undefended list notice of intention to defend does not operate in vacum. The notice must be related to the plaintiff’s claims as it is only by so doing that trial on the undefended list can be harmonized with the wider principle of burden of proof which is relaxed but is not abrogated by the summary procedure of the undefended list. In sum, there must be established by the plaintiff a clear and congruous case to which the defendant is invited to file notice of intention to defend otherwise the invitation will amount to shifting the burden of proof to the defendant by asking him to plead to claims which are found on verification to be internally incongruous.
Concern has been expressed in the leading judgment about the frequent resort to the undefended list summary procedure as a means of obtaining quick judgment even in glaring cases which are not considered to be triable under that summary procedure. I share that anxiety. In this regard, one sorry aspect of the novelty of opting for the summary procedure is the misconception by a plaintiff who is coaxed into adopting the procedure that he can win a case in double-quick time by short-circuiting the regular procedure of the full-length trial which is regarded as slow and time-consuming. Regrettably, the counsel acting for such a plaintiff is not persuaded by the drawback of such a course of action where he can identify it or is indifferent to it. To the counsel, the opening offered by rule 14 of Order 5 of the rules of the trial court holds out the promise of an instant judicial relief that it is not necessary to consider whether the game is worth the candle.
At the first blush, the prospect looks very rosy for an impatient litigant whose focus has been set by his self-proclaimed belief that his adversary has no defence to his claim, a dream which, more often than not, came true, especially where, as in the present case, the court after a perfunctory examination of the proposed defence to the action rejected it and gave judgment to the plaintiff. In doing so, the correctness of the plaintiff’s claims is assumed by the court seeing through the facade of rule 14 of Order 5 that the action is, exfacie, non-contentious. This is an illusion which is propelled by a union of errors by the plaintiff, his counsel and the trial Judge none of whom addressed himself to the law beyond the confine of that rule.
It must be stressed that the road to instant justice via summary procedure of the undefended list originating process can be deceptive. In the short run, it can be hitch-free and smooth-sailing but in the long run it is a short-sighted victory that gets the victor bogged down in litigious quagmire longer than if there had been a straight full-length trial. The folly of such expedience was exposed by the Supreme Court in Onobruchere v. segine (1986) 1 NWLR. (Pt.19) 799, 809, where Aniagolu, JSC., cautioned that:
“A circumvention of the law by short-cuts, possibly aimed at a quick conclusion of a case, will inevitably lead, in the long run, to a wasted effort.”
However that may be, the learned trial Judge having failed to consider the primary issue of whether the respondent’s action was a proper one to be placed on the undefended list it is futile and unnecessary for me to consider whether his pronouncement, ex cathedra, that the appellants’ notice of intention does not show defence on the merits’ followed after judicial deliberations on material evidence as are sufficient to sustain a verdict. In the last analysis, the staccato judgment by the learned trial Judge is in facile contrast with the decision of the trial Judge in Woluchem v. Wokoma (1974) 9 NSCC 181, described by Ibekwe, JSC., as he then was, as ‘a rambling judgment’ and ‘a comedy of errors’ but with one infinite attribute common to and distinguished both judgments that each decided nothing.
With decision in the action on appeal left in limbo, I am dutifully in support of the leading judgment that the appeal should be allowed and I also allow it. The judgment of the learned trial Judge is hereby set aside. The case is remitted to the court below and it is ordered that it shall be transferred to the general cause list to be heard on the merits by another Judge of the Onitsha Judicial Division other than Keazor, J. I adopt the order of accelerated hearing made in the leading judgment.
FABIYI, J.C.A.: I had a preview of the lead judgment just delivered by my learned brother, Ubaezonu, J.C.A. I agree with his reasons leading to the conclusion that the appeal should be allowed.
I, too, hereby allow the appeal and endorse all consequential orders in the lead judgment.
Appeal allowed.
Appearances
Peter Eze, Esq. For Appellant
AND
Obele-Chukwu Chuka, Esq. For Respondent
