HONOURABLE ADEBAYO DAVID v. ALFA ABDUL-GANIUYU JOLAYEMI (2010)

HONOURABLE ADEBAYO DAVID v. ALFA ABDUL-GANIUYU JOLAYEMI

(2010)LCN/4181(CA)

In The Court of Appeal of Nigeria

On Monday, the 8th day of March, 2010

CA/IL/1/2006

RATIO

WHETHER RESPONDENT WHO HAS NOT CROSS-APPEALED, CAN FORMULATE ISSUES OUTSIDE THE PURVIEW OF THE GROUNDS OF APPEAL FILED BY THE APPELLANT

…the law appears settled on authorities too numerous to mention that a Respondent who has not cross-appealed, has no business formulating issues outside the purview of the Grounds of Appeal filed by the Appellant. See Idika v. Erisi (1988) 2 NWLR 563; Capt. Amadi v. NNPC (2000) 6 SCNJ 1 and Salami v. Bala Muhammed (2000) 6 SCNJ 281. PER IGNATIUS IGWE AGUBE, J.C.A.

ISSUE FOR DETERMINATION : CONSEQUENCE OF AN ISSUE FOR DETERMINATION NOT RELATING TO ANY OF THE GROUND OF APPEAL FILED

EFFECT OF THE BREACH OF THE RULES OF COURT

it had long been settled even by the apex Court that Rules of Court, even though are meant to be obeyed should not be elevated the status of statutes, as their breach thereof tantamount to mere irregularity. PER IGNATIUS IGWE AGUBE, J.C.A.

IRREGULAR PROCEDURE: WHETHER A PARTY WHO CONSENTED TO A WRONG PROCEDURE AT THE TRIAL COURT AND IN FACT SUFFERED NO INJUSTICE, CAN COMPLAIN ON APPEAL THAT A WRONG PROCEDURE WAS ADOPTED

In the case of Noibi v. Fikolati (1987), 1 NWLR (pt.52 ) 619 at 632, it was held that where a party consented to a wrong procedure at the trial court and infact suffers no injustice, it would be too late to complain on appeal that a wrong procedure was adopted. Thus, where an action was commenced by an irregular procedure and a defendant did not complain but took active part therein, he cannot later be heard to complain and take advantage of the irregularity. See Nasco Management Services Ltd V.B.N. Amaku Transport Ltd. (1999)1 N.W.L.R. (PT. 588) 576 at 588.” See also Ibeanu v. Ogbeide (1994) 7 N. W.L.R. (pt. 369) 697 at 716 and Adegoke Motors Ltd. v. A desanya (1989) 3 N. W.L.R. (pt. 109) 250. PER IGNATIUS IGWE AGUBE, J.C.A.

AN ISSUE OF JURISDICTION: WHEN CAN THE ISSUE OF JURISDICTION BE RAISED

Before Their Lordships

DALHATU ADAMUJustice of The Court of Appeal of Nigeria

IGNATIUS IGWE AGUBEJustice of The Court of Appeal of Nigeria

CENTUS CHIMA NWEZEJustice of The Court of Appeal of Nigeria

Between

HONOURABLE ADEBAYO DAVIDAppellant(s)

AND

ALFA ABDUL-GANIUYU JOLAYEMIRespondent(s)

IGNATIUS IGWE AGUBE, J.C.A. (Delivering the Leading Judgment): This appeal challenges the decision/judgment of the Honourable Justice M. A. Akoja of the High Court of Justice of Kwara State sitting at Omu-Aran Judicial Division which judgment was delivered on the 1st day of June, 2005 granting the Plaintiff/Respondent all the reliefs sought. It would be recalled that the said Plaintiff/Respondent had beseeched the Lower Court supplicating for the following reliefs as per his writ of summons dated and filed on the 20th December, 2004 as follows:-
1. The sum of N388,000.00 (Three Hundred and Eighty Eight Thousand Naira) only being the balance of the loan advanced on 19th April, 2002 by the Plaintiff to the Defendant.
2. Interest at the rate of 10% per annum on the Judgment sum from the date of Judgment until the final liquidation.
The Plaintiff/Appellant had earlier on the 19th November, 2004, in a motion Exparte brought pursuant to Order 23 Rule I of the Kwara State, High Court (Civil Procedure) Rules, 1989, sought for orders entering the suit for hearing under the undefended list and marking the Writ of Summons accordingly and for such order or further orders as the Court might deem fit to make in the circumstances of the case.
The motion was supported by a seven paragraph affidavit deposed to by the Plaintiff/Respondent in person. On the 20th day of December, 2004 the Plaintiff/Applicant through his Counsel, Olu Adeshina Esq., moved the motion ex-parte and drew the lower Court’s attention to the affidavit in support and the Writ of Summons which according to him, was supported by an affidavit of Seventeen Paragraphs with an attached annexure – a letter of demand from his chambers dated the 25th day of October, 2004. He related further that the case was that of a simple debt which he urged the learned trial judge to hold that the Defendant/Appellant, had no defence to and would not be prejudiced nor embarrassed if the said application was granted.
Ruling on the motion, the learned trial Judge held the considered view that the application was reasonable in the circumstance and the prayers were granted. The suit was accordingly entered for hearing under the undefended list and the Writ of Summons so marked and ordered to be served on the Defendant with all its attachments.
Having been duly served with the originating processes, the Defendant/Appellant swore to a counter affidavit of eight paragraphs dated and filed on the 1st day of February, 2005. On the 4th day of February, 2005, the Defendant followed same up with a motion on Notice for leave to file his Memorandum of Appearance out of time. The said application was supported by an affidavit of nine paragraphs deposed to by the said Defendant/Appellant.
When the case resumed for hearing on the 7th day of February, 2005, O. A. Babaniyi Esq. appeared for the Plaintiff/Respondent while the Defendant appeared personally and sought for an adjournment to enable him properly prepare for the case.
He also drew the attention of the Court to the fact that he had just filed a counter-affidavit indicating his intention to defend the suit.
Upon the objection by Babaniyi Esq. to the adjournment sought, on the ground that the Defendant/Appellant ought to have filed his Notice of Intention to Defend, five days before the date of hearing, the court nevertheless held after considering all the processes filed by the Defendant/Appellant, thus:-
“From all the facts and circumstances of this case, I am of the considered view that the defendant has substantially complied with the requirements of the law even though he was ignorant of same. This is because, the counter-affidavit which could in the circumstance be titled notice of intention to defend, ought to have been filed along with his motion on Notice of intention to defend. What the court is saying is that the Defendant has shown some interest in defending the suit and has taken some steps towards this.
In the interest of justice therefore, the court would want to oblige the Defendant by granting him an adjournment. He is however advised in his own interest, to consult a counsel for his defence as he may not be able to handle this technical issue properly by himself.”
The case was then adjourned to the 2nd day of March, 2005, for hearing but on that day Mr. Adeshina on behalf of the Plaintiff/Respondent sought for an adjournment to enable the Plaintiff/Respondent be contacted to file further documents in response to the Defendant/Appellants Counter-Affidavit. Hearing of the case was further adjourned to the 13th of April, 2005 for the motion on notice.
On that 13th day of April, 2005, the Defendant was however absent and no Lawyer represented him. Adeshina Esq. then urged the Court to strike out the Defendant’s motion and Counter-Affidavit filed on the 1st February, 2005. The learned trial judge having noted that the Defendant had intimated the Court on the last adjourned date that he had briefed one Mr. Balogun as his Counsel, more so, when the said Defendant was a party to the adjournment, was of considered opinion that the Defendant had not shown any seriousness to his case as neither himself nor Counsel was present in Court. He therefore struck out the motion on Notice which was originally scheduled for hearing on that day.
On the issue of the striking out of the Counter-Affidavit, the learned trial judge took the view that the learned counsel to the Plaintiff/Respondent failed to give any reason for his application as the Court below was also not sure that the counter-affidavit had offended any law. The application to strike out the counter-affidavit was accordingly refused.
Thereafter, Mr. Adeshina proceeded to prove the case of the Plaintiff submitting that the defendant had not complied with the provisions of Order 23 Rule 3 of the Kwara State High Court (Civil Procedure) Rules, 1989. He drew the court’s attention to the facts in the seventeen paragraph affidavit in support of the Writ of Summons submitting that the counter-affidavit of the Defendant/Appellant was general in terms and a mere sham and accordingly urged the court to give judgment in favour of the Plaintiff. The learned trial judge then adjourned the case to the 1st of June, 2005, for Ruling/Judgment of the Court.
On the 1st day of June, 2005, the learned trial Judge delivered his Ruling/Judgment granting all the Plaintiffs reliefs on the ground that the depositions in the counter-affidavit of the Defendant/Appellant were general in terms they being mere denials without substantive facts in support thereof.
Again, the counter-affidavit, the learned trial Judge noted, disclosed no sufficient facts and materials constituting a defence on the merit and the Defendant/Appellant therefore, had failed to comply with the provisions of Order 23 Rule 3 of the High Court (Civil Procedure) Rules of Kwara State, 1989. He accordingly ordered the Defendant/respondent to pay the sum of N388,000.00 (Three Hundred and Eighty Eight Thousand Naira) only, being the balance of the loan advanced on the 19th April, 2002, by the Plaintiff to the Defendant. Also awarded the Plaintiff/Respondent was interest at the rate of 10% per annum on the judgment sum from the date of judgment until final liquidation.
Disenchanted with this judgment, the Defendant/Appellant now appeals to this Court by filing his Notice and three Original Grounds of Appeal in the Lower Court and by a motion dated 24th February, 2009 and filed on the 4th day of March, 2009, leave was granted the Appellant to file an Additional Ground of Appeal which ground was deemed duly filed and served on the Respondent on the 25th of May, 2009.
Briefs were duly exchanged by the parties following the transmission of the records from the lower Court to this Honourable Court. Arising from the Grounds of Appeal the Appellant in the Brief settled by Ayo Ajomole esq., of Counsel, distilled two issues for resolution couched in the following terms:-
“1. Whether processes such as motion ex parte and writ of summons signed in a partnership (firm name is competent without an additional indication on the process of the name of the legal practitioner who is a member of the practitioner who is a member of the partnership/firm handling the matter? ”
2. Whether the learned trial judge was right by hearing the suit as an undefended list and giving judgment to the plaintiff to the time of N388,000.00 when such a claim was not proved considering the affidavit evidence of the plaintiff and the defendant’s counter affidavit?
On the other hand, Olu Adeshina Esq., the learned counsel for the Respondent also formulated two issues as reproduced hereunder thus:-
1. Whether the suit was instituted by due process of law, competent and the trial court’s judgment is valid in law (additional ground of appeal).
2. Whether the trial court was right in holding that the appellant affidavit did not disclose a defence on the merit.
Learned Counsel on both sides agreed that their respective Issues Number I relate to the Additional Ground of Appeal while their second issues relate to the Original Grounds 1, 2 and 3 respectively.
Arguing issue Number I of the Appellant, the learned counsel for the Appellant referred us to the motion ex-parte dated the 20th December, 2004 and filed same date together with the Writ of Summons equally filed the same date, which documents are the originating processes in the matter and signed by Olu Adeshina & Co., the Plaintiff/Applicant’s Counsel of 227, Ibrahim Taiwo Road, Ilorin. According to learned counsel for the Appellant, there is no additional indication either on the motion ex-parte or Writ of Summons of any legal practitioner in the firm of Olu Adeshina & Co., that signed the Processes in the face of the name of the Plaintiff (now Respondent) not being Olu Adeshina & Co.
Learned Counsel maintained that the applicable High Court (Civil Procedure) Rules at the trial Court were those of 2005, the relevant provisions to this case being Order 6 which relates to the franking of Originating Processes; Rules 1 and 2 thereof which he quoted to submit that going by the provisions of the Rules above cited, the persons authorized to sign originating processes are legal practitioners or claimants and that Olu Adeshina & Co., a Law firm was not a legal practitioner as defined by Section 2(1) of the Legal Practitioners’ Act, Cap 207 Laws of the Federation of Nigeria 1990.
The learned counsel to the Appellant further cited section 24 of the Legal Practitioners’ Act which defines a legal practitioner and submitted that Olu Adeshina and Co. is not a name in the roll of Legal Practitioners and as such cannot sign as a Legal Practitioner to the claimant. For the above submissions, he placed reliance on the case of Okafor & 2 Ors. v. Nweke & 2 Ors. (2007) W.R.N at 8 (S.C.)
From the foregoing decision of the Supreme Court, it was posited by the learned counsel for the Appellant that the originating processes filed in the lower court and signed by Olu Adeshina & Co. were/are incompetent, the incompetence which affected the jurisdiction of the lower Court to entertain the suit. The authorities of Madukolu v. Nkemdilim (1963) 2 SCNLR 341; Prof. Dada Odutola v. University of Ilorin (2004) 18 NWLR (Pt. 905) 416 at 427; Adigun v. Osaka (2003) 5 NWLR (Pt. 812) 95 and Lawal v. Oke (2001) 7 NWLR (Pt. 711) 88; were all cited to buttress the submission on the incompetence of the processes and the consequent lack of jurisdiction of the lower Court to entertain the suit. Learned counsel further contended that the incompetence of the processes rendered the suit a nullity no matter how brilliant the proceedings were conducted and decided.
The lower Court, Learned Counsel further noted, had a duty to consider the competence of the suit before proceeding to hearing the same even though none of the parties raised the issue. Madukolu v. Nkemdilim supra) Oloba V. Akereja (1988) 3 NWLR (pt 84) 508, Odiase v. Agbo (1972) 1 ALL NLR (Pt. 1) 170, Adesola v. Abidoye (1999) 14 NWLR (Pt. 637) 28: were all cited on:-
1. The duty of the Court to raise the issue of jurisdiction suo motu where there are sufficient facts on the records establishing want of competence or jurisdiction;
2. The principle that parties cannot vest jurisdiction on a Court where it lacks same; and
3. That notwithstanding the fact that the parties erroneously fought a case, where a Court lacked jurisdiction, a party cannot be estopped from subsequently raising the issue of jurisdiction; to submit that the question of waiver of jurisdiction doe not arise.
Finally and still on this issue of jurisdiction and competence, the learned counsel for the Appellant referred us to the cases of Lawal V. Oke (2010) 7 NWLR (Pt. 711) 88, Adesola v. Abidoye (Supra); and Petro Jessica Enterprise Ltd v. Leventis Technical Co. Ltd (1992) 5 NWLR (Pt. 244) 675 per Belgore J.S.C (as he then was) on the principle that the issue of jurisdiction can be raised at any stage and indeed for the first time on appeal and urged the Court to resolve issue Number One against the Respondent.
On issue Number 2, the Learned Counsel to the Appellant drew our attention to the Writ of Summons and the affidavit in support together with the counter-affidavit at page 12 of the Record, and in particular the claim of the Plaintiff/Respondent and recalled that the depositions in the affidavit of the Plaintiff were to the effect that the Dependant/Appellant in company of one Moses Ogunmakin came to borrow N400,000.00 from the Plaintiff/Respondent on the 19th day of April, 2002, with the said Moses Ogunmakin as the Defendant’s guarantor. The Defendant/Appellant was said to have paid the sum of N12,000.00 on the 1st day of June, 2004, leaving a balance of N388,000.00 and that the only documentary evidence attached to the affidavit is the letter of demand written by Olu Adeshina & Co. at pages 9 and 10 of the Record of proceedings.
Learned counsel further urged the Court to note that;
1. There was no written evidence of the loan of N400,000.00 given by the Plaintiff to the Defendant.
2. No written evidence of repayment of the N412,000.00 by the Defendant.
3. No contract of guarantee or any evidence that Moses Ogunmakin guaranteed the Loan of N400,000.00.
4. No written acknowledgement of the debt by the Defendant not even after Exhibit A was served on him
5. No affidavit evidence from Moses Ogunmakin in support of the Plaintiffs claim.
6. No affidavit evidence from any independent witness in support of Plaintiffs/claim.
7. No particulars of the transaction was given by the Plaintiff other than that he gave a loan of N400,000.00 to the Defendant in the presence of Moses Ogunmakin.
The learned counsel for the Appellant alluded to deposition in the paragraphs of the Defendant/Appellant’s counter-affidavit where he denied paragraphs 2 – 17 of the affidavit of the Plaintiff as being false and that at no time did he either approach the Plaintiff in company of anybody to solicit for financial assistance or did he take any loan from the Plaintiff and neither did he pay any sum of N12,000.00 to the Plaintiff as part of the loan.
He further alluded to the judgment of the learned trial judge as contained in pages 18-23 of the Record of proceedings and in particular the holding of the trial judge at page 22 and submitted that considering the affidavit evidence of the Plaintiff, the Appellant’s counter affidavit is specific enough to amount to a defence of the Plaintiff’s case, the non-filing of Notice of Intention to Defend, notwithstanding.
He then relied on the Supreme Court case of Adebisi, Macgregor Associates Ltd v. Nigeria Merchant Bank Ltd. (1996) 3 NCLC 588 at 600; the dictum of Bramwell L.J. in Harison v. Bottenheim (1878) 2 W. R. 262 at 268; while interpreting Order 14 of the Old Supreme-Court of England Rules, which is in pari materia with Order 10 which was considered by our Supreme Court in the Nigerian case earlier cited; Saw V. Hgakim 5 T.L.R 72, Ward V. Plumblery T.L.R and Ray v. Barker 4 Ex. Dr 272; to submit that the court ought to have given the Defendant/Appellant leave to defend the suit. Accordingly, he prayed this Honourable Court to resolve issue Number 2 in favour of the Appellant.
Reacting to the argument on Issue Number one, the Learned Counsel for the Respondent, drew our attention to pages 1, 2, 4 and 8 of the Record of Proceedings of the lower Court which show that the Ex-parte Application was filed on the 19th of November, 2004 and that arguments in the case were concluded on the 13th of April, 2005 (pages 17 and 24 of the Records refer) and the case was adjourned on that day to the 1st day of June, 2005, for Ruling/Judgment. According to counsel, the Kwara State High Court (Civil Procedure) Rules, being relied upon by the Appellant, came to effect on the 29th of April, 2005, when the Respondent had nothing more to do in the case except to await the Ruling/Judgment of the lower the Court on the 1st day of June, 2005.” On the above score, it was the contention of the Learned Counsel for the Respondent that the practice and procedure Rules applicable to the case were those in force at the time of the trial. For this submission, he placed reliance on the case “of Aremo II v. Adekanye (2004) 7 S.C.N.J 218 at 231; Owata V. Anigo & Ors. (1993) 2 S.C.N.J 1 at 10 and Rossek v. ACB Ltd (1993) 10 S.C.N.J 20 at 86 per Bello (CJN) (as he then was), to urge us to hold that Order 6 Rules 1 and 2(3) of the Kwara State High Court (Civil Procedure) Rules, 2005, is inapplicable but that Order 5 Rule 12(1) of the Kwara State High Court (Civil Procedure) Rules, 1989, rather applies to the facts and circumstance of the case.
Citing the provisions of the 1989 Rule, the learned Counsel for the Respondent argued that it was clear beyond peradventure that the writ and every other originating process(es) could either be endorsed with the personal name of the legal practitioner or the name of legal practitioner’s firm and thus, the method adopted by the Learned Counsel for the Respondent did not render the suit incompetent or rob the lower Court of the Jurisdiction to entertain same. Learned Counsel for the Respondent maintained that the authority of Nweke v. Okafor relied upon by the Appellant’s Counsel is distinguishable from the case at hand because the provisions of the Rules considered by the Supreme Court is not similar to the Kwara State High Court (Civil Procedure) Rules, 1989. Again it was submitted that the High Court (Civil Procedure) Rules, 2005, which came into effect on the 29th April, 2005, was not made retroactive but operated retrospectively or prospectively as it affected only cases pending after it became effective and upon further steps being taken by any party pending action in consonance with Order 1 Rule 4(1) thereof.
On the submission that no further-steps were taken in the lower court by the parties after the provisions of the 2005, Rules came into force on the 29n of April, 2005, the Learned Counsel referred us to the case of Broad Bank V. Olayiwola (2005) 1 S.C.N.J 51 at 64-65; submitting in the alternative that assuming that the Rules in force in the lower Court were those of 2005, on the authority of Jikantoro V. Dantoro & Ors (2004) 5 SCNJ 152 at 176; the Appellant had waived his right to complain as the place of objection to the validity of the Writ was at the trial court and not this appellate court. He then urged us to discountenance the argument of the learned counsel for the Appellant on this issue and hold that the applicable Rules were the Kwara State High Court (Civil Procedure) Rules of 1989 and accordingly the judgment of the lower Court was valid.
Turning to Issue Number 2, The learned Counsel for the Respondent again referred us to pages 18 and 23 of the Record of Appeal and the date of the proceedings, submitting that the learned trial judge bent over backwards to accommodate the Appellants inanities and passionately considered his counter affidavit and came to a just conclusion. On the heavy weather made by the learned counsel for the Appellant on paragraphs 4, 5 and 6 of the counter affidavit of the Appellant, the learned counsel for the Respondent insisted that on the authority of Cotia v. Sanusi (2000) 6 SCNJ 453 at 463 – 464, the Supreme Court relied upon English and Nigerian judicial authorities to hold that a bare denial of liability or indebtedness to a Plaintiff or vague allegation of fraud against him without more would not suffice for the purpose of a good defence as envisaged by the Rules in Undefended List Procedure.
Other authorities relied upon to buttress the above submission include:-
a. U.B.A Plc. & Anor V. Alhaji Babangida Jargaba (2007) 7 M. J. S. C. 113 at 128 -129; Plan well Ltd V. Ogala (2003) 12 SCNJ 56 at 62 on the nature of the undefended list procedure;
b. Africa continental Bank Ltd V. Gwagwada (1994) 4 SCNJ (Pt. 111) 267 at 277; and Joel Okunriboye Export Co. Ltd & 3 Ors. V. Skye Bank Plc. (2009) 2-3 M.J.S.C 42 at 64, 69-71, where the Supreme Court set out the steps to be taken by a Defendant before a suit under the undefended list could be transferred to the General cause list and further dispelled the misconception of lack of fair hearing as alleged by the Appellant; to submit that the learned trial judge in the case under appeal had no doubt in coming to the inescapable conclusion that the Appellant’s counter-affidavit disclosed no triable issues.
In conclusion, the Learned Counsel for the Respondent noted that the appellant was in Court on the date his application was to be argued together with his counter-affidavit and was aware of the next adjourned date which he promised the court his counsel would appear and that when neither the Appellant nor his counsel appeared on the next adjourned date, the court had no other option than to call one the Respondents’ Counsel to canvass his own argument for judgment in accordance with the provisions of Order 23, Rules 3(1) and Rule 4 of the Kwara State High Court (Civil Procedure) Rules, 1999. He finally urged this Honourable Court to discountenance the arguments of the learned Counsel for the Appellant and dismiss the Appellant’s Appeal.
It would be recalled that the Appellant on the 12th day of November, 2009 filed a reply brief 11th November, 2009 where, in response to the arguments of the Respondent’s Counsel, he chided the two issues formulated by the learned Counsel for the Respondent as being different from the issues raised by the Appellant as according to him, they were formulated outside the Appellant’s issues and the Grounds of Appeal filed by the Appellant. Citing the cases of HRN Eze Dr. Frank Adele Eke v. Godfre Ogbonda (2007)? and Kusu v. Udom (1990) 1 NWLR (Pt. 127) 421; he urged us to ignore the issues formulated by the Respondent in the determination of this Appeal.
Arguing in the alternative, the Learned Counsel for the Appellant on issue Number One, referred to Order 5 Rules 12(1) of the Kwara State High Court (Civil Procedure) Rules, 1989, relied upon by the Learned Counsel for the Respondent and submitted that the Rule talks about the address of the Plaintiff or the legal practitioner representing him. Moreover, the endorsement referred to by that Order is not the signature of the legal practitioner or his firm as ordinarily, a firm does not have a signature. He reiterated that the Supreme Court in Emmanuel Okafor & 2 Ors. v. Nweke (Supra) did not limit its consideration to any Rule similar to Order 6 Rule 1, 2, (3) of the Kwara State High Court Rules, 2005, but totally condemned the attitude whereby legal practitioners now form the habit of using firm names only in franking documents especially court’s processes.
Learned Counsel repeated his submission on Sections 2 (1) and 24 of the Legal Practitioners Act, 1990, which had existed before the case was filed at the High Court of Kwara State and insisted that the Supreme Court considered the interest of justice in arriving at the decision in Okafor V. Nweke (Supra). To that extent therefore, the Learned- Counsel for the Respondent’s submission that the case at hand is distinguishable from Nweke’s case is a misconception, the learned counsel for the Appellant further submitted. On the contention by the Respondent that the Appellant had waived his right to complain about the procedure adopted in endorsing the signature of the legal practitioner, he adopted his earlier submission that the question of waiver does not arise where the court lacks jurisdiction.
In response to Issue Number 2, the learned counsel for the Appellant conceded that mere denial of indebtedness is not sufficient to grant the Defendant leave to defend but added that this general principle is limited to cases where without credible defence, the claimant is entitled to judgment on the facts of his case and the documents attached to his affidavit. He noted that in the cases cited by the Respondent, the facts and circumstances entitled the Plaintiff to judgment as in the case of A. A. Macgregor v. NAL Merchant Bank Ltd. (1990) 6 SCNJ 111; (1990) 4 NWLR (Pt. 144) 283, where the Plaintiff claimed money due to him under a written loan agreement with terms and conditions of the loan which included the duration and there was a guarantee letter given to the Appellant by the Respondent in the case above cited by the Respondent, which is not the case here. He concluded that the learned trial judge ought to have transferred the case to the general cause list having considered the circumstances of the case. He further urged this court to answer Issue Number 2 of the Respondent in the negative.
Before resolving the issues formulated by the parties in this case, I shall endeavour to deal with the preliminary point highlighted in the Reply Brief of the Appellant as to whether the two issues raised by the Respondent are outside the issues raised by the Appellant from the ground of Appeal.

I harbour no doubt in my mind at all and the law appears settled on authorities too numerous to mention that a Respondent who has not cross-appealed, has no business formulating issues outside the purview of the Grounds of Appeal filed by the Appellant. See Idika v. Erisi (1988) 2 NWLR 563; Capt. Amadi v. NNPC (2000) 6 SCNJ 1 and Salami v. Bala Muhammed (2000) 6 SCNJ 281.

An issue or issues, formulated by the Respondent outside the Ground(s) of Appeal filed and issue(s) formulated there from by the Appellant is/are liable to be struck out. See Owhonda v. Ekpechi (2003) 9 SCNJ 1 at 20 Per Dahiru Musdapher J.S.C and G & C Lines v. Hengrace (Nig.) Ltd (2001) 7 NWLR (Pt. 711) 51.
In Ogunyade v. Oshunkeya & Anor. (2007) 7 S.C. (Pt. 11) 60 at 7 Dahiru Musdapher, J.S.C; again pronouncing on this principle of law while delivering the lead judgment of the Supreme Court, put it so succinctly as’ follows: “An issue for determination in an appeal must not only be derived from a legitimate ground of appeal, but must also be related to the decision of the court below…..
Where an issue for determination does not relate to any ground of appeal, this court has no option other than to discountenance it as it is incompetent. See Nfor v. Ashaka Cement Co. Ltd (1994) 1 NWLR (Pt. 319) 222. It will similarly be ignored if it did not feature in the actual court below.”
Now, a look at the issues formulated by the Respondent would reveal that Issue Number One, posed the question as to whether the Plaintiff/Respondent’s claim in the lower court, was initiated by due process of Law and therefore competent so as to validate the judgment of the trial court in the eyes of the law. That issue exfacie and as can be gleaned from paragraph 4.00 of the un-numbered page of the Respondent’s Brief is tied to the Additional Ground of Appeal. The said Additional Ground in question avers thus:-
“ADDITIONAL GROUND OF APPEAL
1. The trial Court erred in law in entertaining the suit when the originating processes were not prepared and signed by either the claimant or his counsel as required by Order 6 rules 1, 2 (3) of the Kwara State High Court (Civil Procedure) Rules, 2005.
PARTICULARS
a. The writ of summons dated 20th December, 2004 and the motion ex-parte for an order entering the suit under the undefended list were signed by Olu Adeshina & Co. and not by the Claimant or his counsel.
b. The suit not having been instituted by due process of law is incompetent and the trial court ought to have declined jurisdiction.
c. The judgment of the trial Court was therefore a nullity.”
From the underlined particulars (b) and (c) of the Additional Grounds of Appeal, it is clear that the grouse of the Appellant is that the suit initiated by the claimant was not instituted by due process because of the defect in the writ of summons and the motion ex-parte which were neither signed by the claimant nor his counsel. Again, the operative words in particulars (b) and (c) of the Additional Grounds are “not having been instituted by due process of law’, ‘incompetent’ and ‘the judgment of the trial court was therefore a nullity.”
With these particulars, I am of the humble view that the Respondent captured the real essence of the Additional Ground and the salient issue arising there from which is whether the claimant instituted the suit by due process which suit was competent so as to vest the trial court with the requisite jurisdiction to entertain same and deliver a valid judgment as done by the said lower Court. I hold the view therefore, that Issue Number One as formulated by the Respondent arises from the Additional Ground of Appeal and is accordingly competent. This issue with the greatest respect to the learned counsel for the Appellant, is even more comprehensive than the issue formulated by the Appellant which does not include the question of jurisdiction and validity of the judgment of the Learned trial judge.
On Issue Number 2 which avers thus:
“(2) Whether the trial court was right in holding that the Appellant’s affidavit did not disclose a defence on the merit?”, in paragraph 5:00 of the Respondent’s Brief, it is clearly stated therein that Issue 2 related to Grounds I, II, and III. Having taken a look at Grounds I, II and III of the Original Grounds of Appeal and their respective particulars, the quarrel of the Appellant is the hearing of the case under the undefended list and the eventual decision that the counter affidavit of the Appellant did not disclose any defence in law, upon the concession by the court to the learned counsel for the Respondent’s submission, that the depositions in the eight paragraph counter-affidavit of the Defendant/ Appellant were too general and were mere denials without substantial facts in support, having regard to the materials put forward by the Plaintiff.
See for instance Grounds II and III of the Original Grounds and their particulars.
In my humble view, the issue formulated by the Respondent is a replica of the Appellant’s Issue 2 and it arises not only from the Original Grounds but also from the issue formulated by the Appellant. It is pertinent to note that the last three lines of the Appellant’s Issue 2 read “……. when such a claim was not proved considering the affidavit evidence of the Plaintiff and the Defendant’s Counter-Affidavit. ”
I reiterate that the Respondent’s issue is precise and concise and captures the grouse of the Appellant’s three Original Grounds of Appeal and their respective particulars. Precision, conciseness, brevity nay lucidity are the essential hallmarks of formulation of issues and indeed a good brief. The learned counsel for the Appellant can therefore not be serious in his contention that the issues raised by the Respondent are outside those framed or formulated by the Appellant from the Grounds of Appeal filed.
The cases of the HRN Eze/DR Frank Adele Eke v. Godfre Ogbonda (2007) 7 and Kuusu v. Udom (1990) 1 NWLR (Pt. 127) 421; cited by the Learned Counsel may have been decided on solid principles and on the peculiar facts thereof, but they have definitely been cited out of con herein. Accordingly, I shall discountenance the half hearted preliminary objection of the Appellant as contained in his Reply Brief, more so, as the Respondent’s Brief has responded to all-the points raised in the Appellant’s Brief even if the issues raised therein are not in tandem with the Grounds of Appeal or issues formulated by the Appellant (which is not the case here).
For the avoidance of doubt and in view of what I have said above, we shall determine this appeal on the basis of the Appellant’s issues since he is the one challenging the judgment of the lower court.
RESOLUTION OF ISSUES
ISSUE NUMBER 1:-
“WHETHER PROCESSES SUCH AS MOTION EX PARTE AND WRIT OF SUMMONS SIGNED IN A PARTNERSHIP/FIRM NAME IS COMPETENT WITHOUT AN ADDITIONAL INDICATION ON THE PROCESS OF THE NAME OF THE LEGAL PRACTITIONER WHO IS A MEMBER OF THE PARTNERSHIP/FIRM HANDLING THE MATTER?”
To answer this question, it is necessary first to look at the originating processes filed by the Plaintiff/Respondent and their modes of signature or endorsement together with the Rules of Court applicable to preparation of originating processes when the suit was commenced, as contended by respective counsel in their Briefs of Argument filed on behalf of the parties. Beginning from the motion Ex-parte dated and filed on the 19th day of November, 2004, it is clear that it is headed thus:-
“MOTION- EX-PARTE BROUGHT PURSUANT TO ORDER 23 RULE 1 OF THE HIGH COURT (CIVIL PROCEDURE) RULES 1989”
The endorsement by Plaintiff/Applicant’s Counsel and the address of the said counsel, read as follows:-
“OLU ADESHINA AND CO.
PLAINTIFF/APPLICANT’S COUNSEL,
229 IBRAHIM TAIWO ROAD,
ILORIN,
KWARA STATE”.
The signature of Olu Adeshina appears as the signature of the Plaintiffs counsel on top of Olu Adeshina and Co. (See page 1 of the Record of proceedings).
As for the Writ of Summons dated 20th December, 2004, and endorsed by the Registry as having been filed on the 14th of November, 2004, the “INDORSEMENTS” column at page 5 of the Record of proceedings also has it that the Writ was issued by Olu Adeshina and Co. of Beulah Chambers, 229 Taiwo Road, Ilorin, whose address for service was as above written and that the Legal Practitioner for the Plaintiff resided at Alfa Nurudeen Centre, Oro. Olu Adeshina and Co, Beulah Chambers 229 Ibrahim Taiwo Road, Ilorin is stamped on the indorsement.
From the heading of the motion Ex-Parte as earlier stated and reproduced and the year proceeding was initiated, it is clear as crystal that the applicable Rules of practice and procedure which governed the preparation of the originating processes, were those of 1989. For that purpose Order 6 Rules 1 and 2 (3) of Kwara State, High Court (Civil Procedure) Rules, 2005, could not have been applicable. Rather, as was rightly submitted by the learned counsel for the Plaintiff/Respondent, the appropriate applicable Rule is as provided for under Order 5 Rule 12(1) of the Kwara State High Court (Civil Procedure) 1 Rules, 1989, which states in very clear terms and from the side notes inter alia:-
“Endorsement as to legal practitioner and address: Order 12 -(1) where a Plaintiff sues by a legal practitioner, the Writ shall be endorsed with the Plaintiff’s address and the legal practitioners name or firm and business address of his within the jurisdiction and also, if the legal practitioner is the agent of another, the name of the firm and business address of his principal. ”
From the foregoing provisions, the legal practitioner who sued on behalf of the Plaintiff had the option to endorse the writ with either his name or practitioner/firms’ name. Having taken a cursory look at the endorsement on the writ of summons I am satisfied that the Plaintiff/Respondent nay his counsel met the requirements of the provisions of Order 5 Rule 12(1) of the Applicable High court (Civil Procedure) Rules of Kwrara State, 1989, on the preparation of the originating processes filed in the suit.
The Kwara State High Court-(Civil Procedure) Rules, 2005, no doubt, by Order 6 Rule 2 (3) provides that each copy of originating process presented for sealing shall be signed by the legal practitioner or by the claimant where he sues in person and shall be certified after verification by the Registrar as being a true copy of the original process.
However, as has been rightly argued by the learned counsel for the Plaintiff/Respondent and on the authorities of Aremo II v. Adekanye (2004) S.C.N.J.2 18 at 231. Owata v Amigo and Ors (1993) 2 SCNJ 1 at 10 and Rossoli v. African continental Bank Ltd. (1993) 10 S.C.N.J. 20 at 86; particularly the dictum of Bello CJN (as be then was), where the suit on appeal was commenced in November or December 2004 and it was not until the 29th day of April, 2005, that the new High Court (Civil Procedure) Rules of Kwara State became operative, the procedural law which was in existence at the time of commencement, hearing and determination of the case in the lower court and even on appeal, should be the 1989 Rules.
However, Order 1 Rule 3(1) of the 2005 Rules, which deals with construction and reference to law, Rules and so on, states that any reference in the new Rules to anything done under the said Rules includes a reference to the thing done before the commencement of the new Rules under any corresponding law or Rules of Court ceasing to have effect on the commencement of the new Rules.’
Under sub-Rule (2) of Rule 3 thereof, except where the con otherwise requires, any reference in the new Rules to any enactment shall be construed as a reference to that enactment as amended, extended or applied by or under any other enactment.
It is therefore clear from the above provisions that whatever had been done under the 1989 Rules as in the filing and endorsement of the Writ is presumed to have been regularly done in fulfillment of the new Rules. To make it abundantly clear, Order 1 Rule 4 of the 2005 Rules, which is very material to this appeal stipulates that:-
“4 (1) The Rules shall apply to all proceedings including-all part heard causes and matters in respect of steps to be further taken in such causes or matters.”
By the above provision, it would appear that the 2005 Rules have been made to apply retrospectively to all proceedings in the High Court “including part heard causes and matters”. However, there is a clear rider on the nature of the application of the rules which is that they should only apply “in respect of steps to be further taken in such causes or matters ” The question now to be answered is whether as at when the Writ of summons and the motion Ex-parte were filed or thereafter, the parties took any further steps before the judgment of the Court below was delivered. The answer is a definite nay if what transpired in the Court below as can be gleaned from the record of proceedings are anything to go by.
It has to be noted once more that the processes pilloried by the learned counsel for the Appellant were filed on the 19th of November, 2004 respectively. Even the Counter-affidavit of the Appellant was dated and filed on the 1st day of February, 2005 and the motion on notice dated 3rd February, 2005 was filed on the 4th day of February; 2005. Hearing commenced on the 7th of February, 2005 and the case was adjourned to Wednesday, 2nd March, 2005 for hearing. On the said 2nd day of March, 2005, parties by consent had the case again adjourned further to 13th April 2005, to enable the Plaintiffs counsel get in touch with the Plaintiff for purposes of attaching further documents to an affidavit in reaction to the Defendant/Appellant’s counter affidavit and for the Defendant’s lawyer (Mr. Balogun) to appear in court. On the 13th of March, 2005, following the absence of the Defendant or his counsel, the Plaintiff proceeded to prove his case and the Court below adjourned to 1st of June, 2005, for Ruling/Judgment. On the said 1st June, 2005, Judgment was delivered.
Having gone through the entire gamut of the Record of proceedings, I have been unable to find where any of the parties took any steps in furtherance of the part heard matter by filing any processes. Thus, although as at the time judgment was delivered, the new 2005, High Court (Civil Procedure) Rules of Kwara State had commenced operation, it did not affect processes filed between November and December, 2004, by the Plaintiff/Respondent so as to render such documents incompetent. The learned counsel has introduced the decision of the Supreme Court in
Emmanuel Okafor and 2 ors. V. Augustine Nweke and 2 Ors (2007) 19 W.R.N. at 8 and Sections 2 (1) and 24 of the Legal Practitioners Act. He has also quoted copiously from the dictum of Onnoghen J.S.C., on the need for legal practitioners to arrest the current embarrassing trend in legal practice where authentication or franking of legal documents, particularly processes for filing in courts, have not been receiving the serious attention they deserve from legal practitioners. My lord of the apex court had also harped on the need for legal practitioners to maintain the very high standards required in the practice of the law profession in this country. I agree completely with him and I am bound by the impregnable doctrine of stare decisis to abide by that decision having emanated from the hierarchical apogee of the judicial arm of this nation. However, the particular Rule which fell due for interpretation by my Lord Onnoghen, J.S.C, with the greatest respect, was not the 1989 Kwara State, High Court (Civil Procedure) Rule, which specifically provides for alternatives in the mode of endorsing writs and processes either in the name of the legal practitioner or the Firm name of the practitioner.

In any event, be it under the 1989 or 2005 Rules, it had long been settled even by the apex Court that Rules of Court, even though are meant to be obeyed should not be elevated the status of statutes, as their breach thereof tantamount to mere irregularity. For instance Order 4 Rule 1 (1) of the High Court (Civil Procedure) Rules, 2005, emphasizes that where proceedings have been commenced and there has been failure to comply with the requirements of the Rules, whether in respect of time, place, manner, form or content or in any other respect, the failure may be treated as an irregularity and if so treated, will not vitiate or nullify the proceedings, or any document, judgment or order therein.
By sub-Rule (2) of Rule 1, the court may set aside either wholly or partly such proceedings, subject to costs or may exercise its discretion to grant amendments of such processes, where there has been such a failure as highlighted in Rule 1. Most salutary and in line with the principle that breaches of procedural rules should be treated as mere irregularity particular where the offending party did not intend to over reach his opponent, is the provision of sub Rule(3) which is to the effect that:
“(3) The Court shall not wholly set aside any proceedings or the writ or other originating process by which they were begun on the ground that the proceedings were required by any of these Rules to begun by any originating process other than the one employed. ”
That the omission to endorse the name and address of a legal practitioner on the Writ as required by the Rules is an irregularity, more so where the Appellant appeared personally is amply demonstrated in the-cases of Abiola v. Fashehun and Another (1967) NMLR 66 and Throson and Co. Ltd (Oslo) v. P.C. Obioha(1967) LLR 14. Again, Order 4 Rule 2 in realization of the mischief which may be afoot on the application of these Rules, has also brought in the principle of equity on the need for a party applying for the setting aside of proceedings or processes on grounds of irregularity to be vigilant and timeous in such an approach. The Rule pointedly states:-
“2 (1) An application to set aside for irregularity any proceedings, any step taken in any proceedings or any document, judgment or order therein shall not be allowed unless it is made within a reasonable time and before the party applying has taken any fresh step after becoming aware of the irregularity. ”
The provisions of Order 4 Rules 1 and 2 of the 2005 Rules were replicated verbatim from Order 2 Rules 1 and 2 of the 1989 Rules which were applicable to the case under appeal. In this case, after the Plaintiff/Respondent had filed his motion Exparte and Writ of Summons between the 19th of November and 20th December, 2004, and had served them on the Defendant/Appellant, the said Appellant irrespective of the irregular processes purportedly filed by the Plaintiff/Respondent, proceeded to file his counter-Affidavit or Notice of intention to Defend on the 1st of February, 2005, and followed it up with a motion on Notice for leave to file Memorandum of Appearance on the 4th day of February, 2005. The above apart, the Defendant/Appellant personally appeared on the 7th of February, 2005, when the case was first heard and part took actively in the proceedings.
Also on the 2nd of March, 2005, he appeared personally before the case was adjourned to the 13th of April, 2005, when in his absence it was heard and adjourned for Judgment. He can therefore not be heard to complain now on appeal as equity does not aid the indolent but the vigilant. I therefore agree with the learned counsel for the Respondent that the Defendant/Appellant has waived his right to complain about the purported irregularity committed by the Respondent in the endorsement of his Writ of Summons or Motion Ex-parte, which irregularity indeed does not exist, as I had earlier held. Learned counsel has also made heavy whether of the issue of jurisdiction citing the land mark case of Madukolu v. Nkemdilim (supra), Odutola vs. University of Ilorin (supra), Adigun v. Osaka (supra), Lawal v. Oke supra), on when a court is seised with the requisite jurisdiction to entertain a case. In this case, the contention of the Appellant that the suit of the Plaintiff was not initiated by due process is a grand
misconception as the Rules of 1989 under which the suit was initiated and the motion Ex-parte was predicated were complied with in all ramifications.
With the greatest respect again, those cases were decided on settled principles and in accordance with their peculiar facts, but they definitely do not apply to the facts and circumstances of this appeal.

Rather, the current position of the law has been stated in Broad Bank v. Olayiwola (Supra) and Jikantoro vs. Dantoro & Ors (2004) 5 S.C.N.J. 152 at 176. In the latter case, the Supreme Court speaking through Edozie J. S. C. while interpreting Order 3 Rule 4 of the Niger State High Court Rules, which was breached by one of the parties necessitating an appeal of the like of our present case made it explicitly clear that:-
“Order 3 Rule 4 of the Niger State High Court Rules supra which requires that particulars of claim shall not be amended except by leave of court as well as rules on payment of requisite court fees are rules the breach of which do not infringe on the rules of natural justice and objection therefore ought appropriately to have been taken at the stage of trial and not at appellate level.”

His lordship then threw in the clincher as far the submissions of the Learned counsel for the Appellant in this appeal on the issue of jurisdiction, is concerned when he further held:-
“It is noteworthy that a distinction must be drawn between two types of jurisdictions viz jurisdiction as a matter of procedural law and jurisdiction as a matter of substantive law. Whilst a litigant can waive the former, no litigant can confer jurisdiction on the court where the constitution or a statute or any provision of the common law says that the court shall not have jurisdiction. A litigant may submit to the procedural jurisdiction of the court e.g. where a Writ has been served outside jurisdiction without leave. Re: Orr v. Ewing (1882) 22 Ch. D. 456, 463. See Practice and procedure of the Supreme Court, Court of Appeal and High Courts of Nigeria by T. Akinlola Aguda, 1980 Edition at page 86; paragraph 7.03.

I have not lost sight of the fact that jurisdiction is the live-blood of any litigation and as rightly submitted by the learned counsel for the Appellant that an issue of jurisdiction can be raised at any stage of proceedings even-on appeal and the Court can also raise such an issue suo motu. However, from the decisions of the Supreme Court earlier quoted, where, as in This case, the jurisdictional issue herein arose front a procedural irregularity (assuming there was such an irregularity which is not however conceded), by participating actively in the proceedings without raising the objection timeously, the Appellant had waived his right to complain herein on appeal as he was never misled by the processes filed by the Plaintiff/Respondent.
Accordingly, I shall discountenance all the submissions of the Appellant’s learned counsel on this issue as they do not represent the true position of things as far as this appeal is concerned. Issue Number 1 is therefore resolved against the Appellant and in favour of the Respondent.
ISSUE NUMBER 2:
WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT BY HEARING THE SUIT AS AN UNDEFENDED LIST AND GIVING JUDGMENT TO THE PLAINTIFF TO THE TUNE OF N388,000.00 WHEN SUCH A CLAIM WAS NOT PROVED CONSIDERING THE AFFIDAVIT EVIDENCE OF THE PLAINTIFF AND THE DEFENDANT’S COUNTER AFFIDAVIT?
I shall commence the resolution of this issue by recalling the observation of Ubaezonu J.C.A. (as he then was) in his forward to the seminal treatise titled “Law And Procedure In Suits On The Undefended List” by our most erudite C.C. Nweze J.C.A.( then a Judge of Enugu High Court); Masters Publishing Company (Law Publishers), 2001 Edition, that:-
“Legal Practitioners are enamoured of the Rules of Court relating to suits on the Undefended List. However, they – and indeed some trial courts – often underrate their provisions. Hence, the Law Reports have recorded a handsome harvest of appeals from such trials in such suits.”
Coker, J.S.C. (of blessed memory) speaking in the same vein had twenty-six years earlier supported the view so expressed above by Ubaezonu J.C.A, when in the celebrated case of Olubusola Stores v. Standard Bank (Nig) Ltd. (1975) ALL NLR (reprint) 123 at 125, he intoned inter-alia.”
“We point cut that the relevant Rules dealing with actions on the Undefended List are very often employed but as well equally so often misapplied.”
The above excerpts from these eminent legal pundits, appropriately set the tone for our resolution of the vexed issue of the propriety vel non of the hearing and determination of the suit on appeal by the lower court under the Undefended List Procedure based on the affidavit evidence of the parties. Now Order 23 of the Kwara State High Court (Civil Procedure) Rules, 1989, which provisions are in tandem with what used to be called the Uniform Rules adopted by most of the High Courts of the States provides as follows:-
“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 is no defence thereto enter the suit for hearing in what shall be called the “Undefended List” and mark the Writ of Summons accordingly, and enter thereon a date for hearing suitable to the circumstance of the particular case.”
By Rule, “There shall he delivered by the Plaintiff, to the Registrar upon 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.”
Under Rule 3(1) “If the party served with the Writ of Summons and affidavit as provided in Rules 1 and 2 hereof delivered to the Registrar not less than 5 days before the date 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 the court may think just.
“(2) where leave to defend is given under this rule, the action shall be removed from the Undefended List and placed on the Ordinary Cause List and the court may order pleadings or proceed to hearing without further pleadings. ”
On the consequences of failure of the defendant to deliver the notice of intention to defend and affidavit as prescribed by Rule 3(1) or who is not given leave to defend by the court, Rule 4 mandatorily provides that “the suit shall be heard as an undefended suit, and judgment given Thereon, without calling upon the Plaintiff to summon witnesses before the court to prove his case formally.”
Finally, Rule 5 of Order 23 provides that:-
5. Nothing herein shall preclude the court from hearing or requiring oral evidence, should it so think fit at any stage of the proceeding under Rule 4. ”
The above are the procedural steps to be taken in an Undefended List Proceedings and from the provisions of the above cited Rules, there is no doubt that the undefended list procedure is a species of summary judgment evolved by the rules of courts for the speedy disposal of otherwise uncontested cases and where there is no reasonable doubt as to the efficacy of the Plaintiffs claims and it would be most unconscionable to oblige an otherwise liable defendant the opportunity to employ mere subterfuge to dribble his opponent and indeed the court just for the purpose of stalling the proceedings and cheating the Plaintiff out of the reliefs to which he ordinarily would have been entitled. See; U.B.A Plc. & Anor v. Alhaji Babagida (2007) 7 M.J.S.C 113 at 128-229; Peat Marwick Ani, Ogunde & Co. v. Okike (1995) 3 NWLR (Pt. 369) 71; Macaulay v. Nal Merchant Bank Ltd. (1990) 4 NWLR (Pt. 144) 283; Jipreze v. Okonkwo (1987) 3 NWLR (Pt. 62) 737; Nishizawa Ltd. v. Jethwani (1984) 12 SC234; Sodipo v. Leminkainen (1986) 1 NWLR (Pt. 15) 220; Mac Gregor Associates v. N.M.B. (1996) 2 S.N.J 72 at page 81; Planwell Ltd. v. Ogata (2003) 12 SCNJ 58 at 62; ably cited by the learned counsel for the Respondent.
In this case, the Plaintiff/Respondent in line with Rule 1 of Order 23 applied to the Court below for the issuance of a Writ of Summons accompanied by an affidavit setting forth the ground upon which his claim was based and further stated that in his belief the Defendants had no defence on the merit. See paragraph 4 of the affidavit in support of the motion Ex-parte. For the avoidance of doubt, it would be recalled that Plaintiff/Respondent in the affidavit in support of his writ of summons had deposed to the following facts:-
“1. That I am the Plaintiff in this case by virtue of which I am conversant with the facts leading to this oath.
“2. That I know as a fact that sometimes in the year 2002, the defendant came to me in company of one Moses Ogunmakin to solicit for a loan of N400,000.00 (Four Hundred Thousand Naira), only.
“3. That the Defendant at the same time in my house and in the presence of the said Moses Ogunmakin said the loan was meant for his electoral campaign and that immediately after the election he would repay the loan.
“4. That I know as a fact that on 19/4/2002, in my house in the presence of his guarantor Moses Ogunmakin, I gave the sum of N400,000.00 to the Defendant as a loan.
“5. That I know as a fact that the Defendant utilized the money for (Sic) is electoral ambition campaign and won election as a councilor representing Oro Ward 2 in Irepodun Local Government Area of Kwara State.
“6. That I know as a fact that the Defendant had been in office since March, 2004 as councilor.
“7. That I know as a fact that the defendant reneged on his promise to repay the money immediately he got to office.
“8. That I know as a fact that it was a result of several demands and pressure I put on him that he repaid only N12,000.00 out of the amount on 1/6/2004 again in the presence of his guarantor Moses Ogunmakin.
“9. That I know as a fact that on that 1/6/2004, the defendant promised to pay the balance of N388,000.00 by monthly installments from June ending until total liquidation.
“10. That I know as fact that since that time the Defendant refused and or failed to repay the outstanding balance of the N388,000.00 (Three Hundred and Eighty- Eight Thousand Naira) only, to me.
“11. That I know as a fact that I briefed my counsel on this issue and he to my knowledge and instructions wrote a demand letter on 25/10/2004 to the Defendant, which was served on the Defendant.
“12. That I know as a fact that notwithstanding my counsel’s letter the Defendant till date has not deemed it fit to repay the loan
“13. That I strongly believe that the Defendant does not have any defence to my claims on the merit.
“14. That I also believe that unless compelled by this Honourable Court to honour his obligations to the Plaintiff the Defendant will persist in his fault.
“15. That a copy of my Counsel’s letter of demand to the defendant is here with attached as Exhibit A.
“16. That I know as a fact that the ends of justice will be better served by this Honourable court granting me my claims as my Writ of Summons.
“17. That I depose to this oath bonafide.”
Based on the above averments, the court satisfied itself that there were good grounds to believe that the Defendant had no defence on the merit and made the necessary orders placing the suit under the undefended list and accordingly marked the writ which was served on the Defendant/Appellant together with the affidavit in support. Pursuant to Order 23 Rule (1) thereof, the Defendant rather filed a counter affidavit unsupported by a notice of intention to defend which error the court, in my humble view, rightly and judiciously waived and treated as a notice of intention to defend from his Ruling on the 13th of April, 2005, inter alia, at page 17 of the Record of proceedings that:-
“On the issue of the counter-affidavit, I would not want to agree with MR Adeshina that the same would also be struck out. Learned counsel has failed to advance any reason for his application and the court is not sure that the counter affidavit has offended the law. The application to strike out the counter affidavit is accordingly refused”.
Surprisingly, in his Judgment/Ruling at the last paragraph of page 4 (21) of the Record of proceedings, the learned trial Judge made a volte face and held thus:-
“In view of this failure of the Defendant to comply with (sic) of court, particularly, Order 23 Rule 3 of the High Court (Civil Procedure) Rules 1989, the court rules that no notice of intention to defend this action has been filed and no affidavit disclosing a defence on the merit has been attached.”
At page 5 paragraph 1 of the judgment (page 22 of the Record of Proceedings), His Lordship continued:-
“I am of the view that the intendment of the law makers is not that the defendant shall file a counter-affidavit but a notice of intention to defend the suit supported by an affidavit which discloses a defence on the merit.”
However, the learned trial judge guided by his conscience to do justice, still went ahead to look at the depositions in the Defendant/Appellant counter-affidavit by highlighting some of the relevant paragraphs in order to find out whether there was a disclosure of a defence on the merit. He thereafter went on to hold as follows in paragraph 4 of the same page:-
“I have very carefully examined the above paragraphs of the eight paragraph counter-affidavit and I would want to agree with the submission of learned counsel to the Plaintiff that they are too general being mere denials without any substantive facts in support. This is contrary to the rule that the affidavit must not contain a mere general statement that the defendant has a good defence to the act. It is trite that such a general statement must be supported by particulars which if proved constitute a defence. See John Holt Co. (Lever) Ltd. v. Fajemirokun (Supra).
“I accordingly rule that the counter affidavit herein, disclosed no sufficient facts and material constituting a defence on the merit.”
With the greatest respect, the above position taken by the learned trial judge cannot be a true reflection of the facts of this case. There is no iota of doubt as was rightly held by the learned trial judge that when a case is entered on the “Undefended List”, the court has only one duty namely; to see whether the Defendant has filed a notice of intention to defend and an affidavit on the merit on the return date, and that where such notice has not been filed within five days before the return date, the court shall willy-nilly enter judgment in favour of the Plaintiff. See: Groronyo v. U. B. A (2000) FWLR (Pt. 33) 1102 at 1109 and Ben Thomas Hotels Ltd v. Sebi Furniture Co. Ltd (1989) 12 S.C.N.J. 171 at 174 -175 ably cited by His Lordship in his judgment. See also Nigeria Sugar Co. v. Mojec International Ltd. (2005) ALL FWLR (Pt. 262) 475 at 491 per Ikongbeh, J.C.A – a decision of this Honourable Court.
There is also considerable force in the holding of the court below at pages 22 – 23 (5 and 6) paragraph 1, of the Records/Judgment that even where a Notice of intention to defend is filed with a supporting affidavit, the granting of leave to defend is not automatic but that the court is enjoined to satisfy itself that sufficient facts and particulars were disclosed to constitute a defence on the merits. Ataguba & Co. v. Gura Nigeria Ltd (2005) ALL FWLR (pt. 256) 1219 at 1230 -1234 refers. In other words, in order to deny the defendant the leave to defend the trial court must satisfy itself that the affidavit of the defendant is completely bereft of facts and particulars tending to show that there are triable issues or a defence on the merits. Therefore, in order to determine the existence of sufficiency of facts and particulars, the depositions in the affidavit of the Plaintiff/Applicant nay his claim and the affidavit of the Defendant have to be juxtaposed against each other. This task is onerous as it entails the judicial and judicious exercise of the court’s discretion before taking a decision which may tantamount to a deprivation of the right of a willing Defendant to defend a claim to which he ordinarily has a defence both in law and fact, see Grand Cereals & Oil Mills Ltd v. As-Ahel International Marketing Ltd. & Procurement Ltd (2000) 4 NWLR (Pt. 652) 310; Alhaji Danfunlani v. Mrs. Shekari (1996) 2 NWLR (pt.433) 723: Alhaji Ahmed v. Trade Bank of Nigeria Plc. (1997) 10 NWLR (Pt. 524) 290 and Calvenply Ltd. V. Pekab International Ltd (2001) FWLR (Pt.61) 1655.

Indeed, in Ataguba v. Gura Nig Ltd. (2005) ALL FWLR (Pt. 256) 1219 at 1237 to 1238 paras G-F, the erudite and eminent Niki Tobi, J.S.C, in his concurrent judgment of the Supreme Court, put it even most brilliantly and beyond peradventure that:- “A defence on the merit for the purposes of the undefended list procedure may encompass a defence in law as well as on fact, The Defendant must put forward some facts which cast doubt on the claim of the Plaintiff. A defence on the merit is not the same as success of the defence in litigation. All that is required is to lay the foundation for the existence of a triable-issue or issues. See Nortex (Nigeria) Limited v. Franc Tools Co. Ltd (1997) 4 NWLR (Pt. 501) 603”
The learned judicial icon pronounced further in paragraph C – D at page 1-2-38 of the Report above cited his oft-quoted dictum that:-
“Under the undefended list procedure, the defendant’s affidavit must condescend upon particulars and should as far as possible deal specifically with the Plaintiff’s claim and affidavit, and state clearly and concisely what the defence is and what facts and documents are relied on to support it. The affidavit m support of the notice of intention to defend must of necessity disclose facts which will at least throw some doubt on the case of the Plaintiff.
A mere general denial of the plaintiffs claim and affidavit is devoid of any evidential value and as such would not have disclosed any defence which will at least throw some doubt on the Plaintiffs claim. See Agro Millers Ltd. v. Continental Merchant Bank (Nigeria) Plc. (1997) 10 NWLR (Pt. 525) 469.
To satisfy a judge in an action on the undefended list, the defendant must depose to what on the fact of the affidavit discloses a reasonable defence see. Jipreze v. Okonkwo (1987) 3 NWLR (Pt. 62) 737”
It is pertinent to note that the learned “trial judge cited the above case with all amount of gusto and verve as the basis for his holding that the Defendant failed to comply with the provisions of Order 23 Rule 3. However, going by the above authorities and others cited by counsel on both sides, before the, Defendant can be called upon to depose to an affidavit which must condescend upon particulars and deal specifically with the Plaintiffs claim, the Plaintiff also has a concomitant duty to first of all satisfy the Court with an affidavit disclosing credible and reliable facts backed up with authentic and credible documents which would warrant the court to give him judgment where the Defendant’s affidavit does not disclose facts which would at least throw some doubt on the said Plaintiffs case. After all, and it has been so held, that just like all civil suits, the Plaintiff ought to succeed on the strength of his case and not necessarily on the weakness of the Defendant’s case. See Aubergine Collections Ltd. v. Habib Nig. Bank (2002) FWLR (Pt. 128)1276 C.A. Thus, the Plaintiffs case must not prima facie be frivolous, vacuous, vexatious and unsupportable in law and fact.

See Kabiru v. Ibrahim (2005) ALL FWLR (Pt.240) 94 at 114 – 115 C.A.The Court must, in the exercise of its discretion to grant or deny the defendant the leave to defend, subject the facts in the affidavit and the documents backing up the Plaintiffs claim to, a discreet and dispassionate scrutiny and in the words of Thomas J.C.A. in Oloko v. Ube (2004) ALL FWLR (pt. 227) 562, judgment should not be entered for the Plaintiff “on a platter of gold” or just for the asking. This bounding duty is on the Court notwithstanding the inability of the Defendant to file a Notice of Intention To Defend and an affidavit in support thereof as the failure to do so would necessitate the setting aside of such a judgment by an appellate Court. See SPDC Ltd. v Archo-Joe Nig. Ltd. (2006) ALL FWLR (Pt. Bank Ltd. (2007) ALL FWLR (Pt.372)1803 and Kabiru v. Ibrahim (All FWLR (Pt 240) 94 at (2005) ALL FWLR (Pt.240) 94 at 114-115.
A careful perusal of the affidavit of the plaintiff and the claim in his writ of summons would reveal that-he purportedly granted a loan of a whopping sum of N400,000.00 (Four hundred Thousand Naira) only, to the Defendant/Appellant on the 19th day of April, 2002. In the said Plaintiff’s house and in the presence of purported guarantor in the person of Moses Ogunmakin. In this modern world and taking into consideration the prevalence of sharp practices amongst some smart Nigerians, there was no simple written agreement between the parties nor was there any guarantor’s form signed by the so-called Moses Ogunmakin. Even where the Plaintiff alleged that the Defendant made part-payment of N12,000.00 (Twelve Thousand Naira) only, the said part-payment was never documented by way of receipt or otherwise.
The only document backing up his claim is Exhibit A, a letter of demand dated 25th October, 2004, from the Plaintiffs counsel purportedly written to the Defendant.
In his affidavit, the Defendant vehemently denied ever owing the Plaintiff/ Respondent.
More particularly, the Defendant/Appellant has in the – paragraphs of his counter-affidavit highlighted by the learned trial judge at page 5 of the judgment (22 of the Records) deposed to the following facts which the court below ought to consider as weighty enough for either a further Affidavit by the Plaintiff or the calling of oral evidence for the resolution of the conflicting depositions of the parties thus:-
“3 that paragraphs 2-17 of the affidavit are false
“4 That at no time did I (sic) approached the Plaintiff in company of anybody to solicit for financial help.
“5 That at no time did I take any loan for whatsoever from the Plaintiff and at no time did I pay a sum of N12,000.00 to the Plaintiff as part of the loan.
“6 That I know as a fact that there is an unholy alliance and conspiracy between the Plaintiff and his friend one Moses Ogunmakin to tarnish my reputation.
“7 That I shall be ready and willing to join issues with the Plaintiff and his cohort(s) in the court of Law.”
Contrary to the holding of the learned trial judge that the averments in the counter-affidavit of the Defendant were too general in terms and mere denial without substantial facts to support same, even the Plaintiff at page 16 of the Record of Appeal acknowledged the fact that the counter affidavit of the Appellant was not a mere sham when he stated thus through his counsel:-
“Mr Adeshina:-
“This matter was originally fixed for hearing today. However, I was served with a motion on notice filed by the defendant in this case and a counter-affidavit. I have just been able to get in touch with the Plaintiff this morning and there is need for us to attach further documents to an affidavit in reaction to the counter affidavit filed by the Defendant. We shall therefore be asking for another date.”
From the underlined portions of the statement by the learned counsel for the Plaintiff/Respondent, it is clear that the Defendant/Appellant’s counter-affidavit had sufficiently raised triable issues or a defence on the merit where, as in this case, the Plaintiff/Respondent was expected to explain certain issues raised in the counter-affidavit in respect of the claim which issue had cast some doubt in the claim or thrown up a controversy which can only be resolved by calling oral evidence. See Haido v. Usman (2004) ALL FWLR (Pt. 201) 1765.
I have searched through” the entire gamut of the record of proceedings and I have not been able to trace any such further affidavit filed to challenge the counter-affidavit of the Defendant. Where the Defendant deposed in paragraph 7 of the counter-affidavit that he was ready to contest the case against the Plaintiff and his cohorts in a court of law, and further alleged that the claim by the Plaintiff was a grand conspiracy by the Plaintiff and Ogunmakin the so-called Guarantor, to tarnish his image and the said Ogunmakin did not tender any document tending to prove that he defendant/Appellant, actually entered into such an agreement (which he Ogunmakin guaranteed) and made part payment of N12,000.00; one wonders whether the Appellant would have manufactured particulars where none existed on the part of the Plaintiff except a sham letter of demand.
I agree completely with the learned counsel for the Appellant that where there was:-
(1) No written evidence of the transaction between the parties;
(2) No written evidence of repayment of N12,000.00 part settlement of the debt;
(3) No contract of guarantee from the so-called guarantor;
(4) No written acknowledgement of the debt by the Defendant not even after Exhibit A was served on him;
(5) No affidavit evidence from Moses Ogunmakin in support of the Plaintiff claim that he guaranteed the defendant;
(6) No affidavit evidence from an independent witness even though this may be unnecessary;
(7) No particulars of the transaction were furnished by the Plaintiff/ Respondent; the sham claim equally ought to have deserved a sham defence. However, in this case, the defence of the Appellant was cast iron, precise and not evasive and struck at the root of the claim of the Plaintiff/Respondent to such an extent that the Respondent’s counsel indicated his intention to file a further affidavit against the Appellant’s counter-affidavit which he never did.
Therefore, in line with the decision in Adebisi Macgregor Associates Ltd. v. Nigeria Merchant Bank Ltd. (1996) 3 NCLC 588 at 600-601 and the English cases relied upon by the Supreme Court, where the Defendant/Appellant had deposed to enough facts which entitled him to interrogate the Plaintiff and indeed showed that he had a fair case for defence; reasonable grounds for setting up a defence or even a fair probability that he had a bona fide defence; he ought to have been given the opportunity or leave to join issues with the Plaintiff and his cohorts by the court below transferring the case to the “General Cause List” for hearing on the merits.
Notwithstanding that the Appellant was absent on the date of hearing and eventual adjournment for judgment, where the court had earlier held that the Appellant had shown some interest in defending the suit, the mere fact that he was unable to brief counsel was not a carte blanche for the Plaintiff to get judgment where his claim was manifestly unsupportable in law and fact and the Defendant had sufficiently interrogated the Plaintiff to the extent of seeking to file a further affidavit which he did not do.
I am therefore of the candid view that the Defendant ought to have been given leave to defend the suit from the totality of the averments in his counter-affidavit. The learned trial judge therefore embarked on an injudicious exercise of his undoubted discretion when he denied the Defendant/Appellant the leave to defend as he did in his judgment. Accordingly issue number 2 is resolved in favour of the Appellant.
On the whole, this appeal partly succeeds and I set aside the aspect of the judgment of the lower court, per M. A Akoja, J., delivered on the 1st June, 2005, wherein he held that the Defendant failed to comply with the provisions of Order 23 Rule 3 of the Kwara State High Court (Civil Procedure) Rules, 1989, and thereby granted the Plaintiff/Respondent all the reliefs sought.
I rather hold that the defendant ought to be granted leave to defend the claim of the Plaintiff. I hereby order that the suit be remitted to the Honourable, the Chief Judge of Kwara State for re-assignment and parties shall file their pleadings before another Judge to enable the case to be heard on the merit. I make no order as to costs.

DAIHATU ADAMU (OFR), J.C.A.: I have read the judgment of my learned brother I. I. Agube J.C.A. in this appeal. I am in agreement with my learned brother on the preliminary point attacking the ground of appeal. I also agree that the issue No. I arises from the Additional ground of appeal and is therefore competent.
On Issue No. 2, I am of the view that at the time the judgment was delivered although the new High Court (Civil Procedure) Rules of Kwara State 2005 had commenced operation, it did not affect the processes filed between November and December 2004 by the plaintiff. They are very competent. Consequently all the appellants submissions on this issue can be discountenanced as they do not represent the true position of things in the appeal. The issue No.2 is therefore resolved against the appellant and in favour of the respondent.
On the 2nd issue I am also of the view that the defendant had deposed to enough facts which entitled him to interrogate the plaintiff and showed that he had a fair case for defence. He ought therefore to be given the opportunity to join issues with the plaintiff. The appeal therefore partly succeeds. I also join my learned brother in ordering the suit to be remitted to the Hon. Chief Judge for re-assignment and parties are to file their pleadings before another judge for the case to be heard on the merit.
I abide by the order on costs.

CHIMA CENTUS NWEZE, J.C.A.: I had the advantage of reading the draft of the leading judgment which my learned brother, Agube JCA just delivered now. I am persuaded by my Lord’s taut reasoning and compelling conclusion.
True, indeed, there has been a noticeable tendency on the part of some trial courts to underrate the Undefended List Procedure. Some what curiously, such courts, almost always, misapply the rules relating to the Procedure.
That was, exactly, what happened in this suit at the lower court. With due respect, the learned trial Judge grossly misunderstood the rationale of the provisions of Order 23 of the High Court (Civil Procedure) Rules of Kwara State 1989, the prevailing Rules of Court at the material time, which dealt with proceedings under the Undefended List.
The leading judgment of my Lord, Agube JCA has meticulously highlighted instances of the lower court’s misapplication of the said rules. I, entirely, agree with my noble Lord that the defendant should have been afforded the opportunity of defending the claim.
The lower court erred in not doing so. I, too, hereby order that the suit be remitted to the Honourable the Chief Judge of Kwara for re-assignment to another judge. I abide by the consequential orders contained in the leading judgment.

Appearances

Ashaolu J. Olabowale Esq.,For Appellant

AND

Olu Adeshina Esq.,For Respondent