BRIFINA LIMITED v. INTERCONTINENTAL BANK LIMITED
In The Court of Appeal of Nigeria
On Wednesday, the 20th day of February, 2002
JUSTIN THOMPSON AKPABIO Justice of The Court of Appeal of Nigeria
SULE AREMU OLAGUNJU Justice of The Court of Appeal of Nigeria
MUSA DATTIJO MUHAMMAD Justice of The Court of Appeal of Nigeria
BRIFINA LTD. Appellant(s)
INTERCONTINENTAL BANK LTD. Respondent(s)
OLAGUNJU, J.C.A (Delivering the Leading Judgment): The appeal is from the decision of Obidigwe, J., of the Onitsha Judicial Division of the Anambra State High Court in which judgment was entered in favour of the respondent as the plaintiff for the sum of N168,077,485.40 with (a) 28% interest per annum on that amount from 6/5/2000 to 22/11/2000 and (b) thereafter 5% interest per annum on the judgment debt ‘until the total sum is liquidated’. In addition, the sum of N3,500,000.00 was also awarded to the respondent for the head of claim ‘comprising professional fees for hiring a solicitor and also for legal expenses for prosecuting this matter’.
The decision was the conclusion of the action filed on 22/5/2000 by the respondent under the undefended list procedure as provided by a combination of rules 13(3), 14 & 15 of Order 5 and rule 9 of Order 24 of Anambra State High Court Rules, 1988, which in succeeding references will be contracted to ‘the rules of the trial court. As prescribed by rule 14 of Order 5 the respondent filed an application in which she itemised her claims against the appellant in the verifying affidavit and this was followed by the writ of summons issued on 22/5/2000 by the Registrar of the court in conformity with rules 13(3) and 15 of Order 5 in which the case was set down for hearing on 26/6/2000. The writ of summons together with the respondent’s verifying affidavit was served on the appellant on behalf of whom a Memorandum of conditional appearance was filed on 31/5/2000 intimating that the appellant was ‘under receivership’ as per copy of the Deed which is said to be annexed to the Memorandum.
The case was not heard on 26/6/2000 as indicated on the writ of summons and another hearing notice was issued on 6/10/2000 setting the case down for hearing on 16/10/2000 on which date the case was also not heard. In the meantime, on 5/10/2000 the respondent by her counsel filed a further affidavit in support of the respondent’s claims and on 22/11/2000 the case was heard when only learned Senior Advocate for the respondent was in court (see page 29 of the record). Following a brief submission by the learned Senior Advocate judgment was entered for the respondent on the terms summarised at the opening paragraph of this judgment and on the ground that the appellant did not file any notice of intention to defend the action as stipulated by sub-rules 9(2) and (3) of Order 24 of the rules of the trial court to which the Memorandum of Conditional Appearance filed by the appellant cannot be equated Dissatisfied with the decision the defendant/appellant filed with her notice of appeal two grounds of appeal from which she formulated for determination of the following two issues:
“1. Was it right for the learned trial Judge to enter Judgment in the undefended list without placing the matter in the general cause list in view of the fact that though it was a Memorandum of Appearance which was filed but it proffered a defence that the defendant/appellant company was under receivership?
2. Is the judgment with respect to a liquidated sum, as applicable to undefended list matters?
The respondent also formulated 2 issues but raised a preliminary objection to the 2nd ground of appeal contending that the point taken in that ground is a fresh issue that was not canvassed at the trial court and that as no leave of this court was obtained before raising it as a complaint the ground of appeal and the issues formulated from it are incompetent. He relied on the decision of this court in Ibrahim v. Balogun (1999) 7 NWLR (Pt. 610) 254,274-275, and urged this court to strike out both the 2nd ground of appeal and issue two distilled from the defective ground.
Learned Senior Advocate for the appellant did not file a Reply Brief as provided rule 5 of Order 6 of the Rules of this court which is the medium for dealing ‘with all new points arising from the respondent’s brief’. Rather, he filed a motion on 27/9/2001 praying this court for leave to argue ground of appeal 2 and to deem the arguments on issue 2 in her brief of argument distilled from that ground as duly argued. In other words, the learned Senior Advocate prayed the court to give a retrospective approval for argument of the defective ground of appeal in a subtle manoeuvre to render nugatory the preliminary objection by the respondent in her brief of argument. In its unanimous ruling on 23/11/2001 this court refused the application as subtle stratagem to overreach the respondent.
The position is that failure of the appellant to file a reply brief to explain the point argued in the respondent’s brief of argument as a preliminary objection means that the point is unanswerable. Therefore, the objection by learned counsel for the respondent that the 2nd ground of appeal and the issue formulated from that ground are incompetent is deemed to have been conceded by the appellant. See Okoye v. Nigerian Construction and Furniture Co. Ltd. (1991) 6NWLR (Pt. 199) 501,534; and Popoola v. Adeyemo (1992) 8 NWLR (Pt. 257) 1,32.
That being the case, ground of appeal 2 being a complaint about a matter that was not canvassed at the court below is a fresh issue that can be raised on appeal only with leave of this court. It follows that the appellant having failed to obtain the necessary leave before filing ground of appeal 2 the ground is incompetent and the issue formulated from the incompetent ground is, eo ipso, incompetent. See Idika v. Erisi (1988) 2 NWLR (Pt. 78) 563,580; A.-G., Oyo State v. Fairlakes Hotels Ltd.(1988) 5 NWLR (Pt. 92) 1,29; Honika Sawmill v. Hoff (1994) 2 NWLR (Pt. 326) 252 or (1994) 2 SCNJ 86,93; and Atoyebi v. Governor of Oyo State (1994) 5 NWLR (Pt. 344) 290 or (1994) 5 SCNJ. 62,78-79. Accordingly, objection by learned counsel for the respondent is well taken and I strike out ground of appeal 2 and Issue Two in the appellant’s Brief of argument formulated from the defective ground of appeal.
The result is that by the success of the preliminary objection the respondent would appear to have cut her nose to spite her face as one of the two issues she formulated would have to give way on the general principle that a party cannot formulate more issue than one from a ground of appeal and the correlative principle that a respondent who does not cross-appeal or file a respondent’s notice cannot frame issues outside the ground of appeal filed by the appellant: See Eze v. Federal Republic of Nigeria (1987) 1 NWLR (Pt. 51) 506, 521 & 522; Atanda v. Ajani (1989) 3 NWLR (Pt. 111) 511, 543-544; and Idika v. Erisi (supra) at page 579. Therefore, I will discountenance the 2nd Issue formulated by the respondent in her brief of argument and consider along with the lone surviving issue formulated by the appellant the only viable issue in the respondent’s brief of argument which reads:
“Did the defendant/appellant disclose ground(s) of defence in the document filed by him?”
Arguing the lone issue, learned Senior Advocate for the appellant conceded that the learned counsel who represented the appellant at the trial court did not file the notice of intention to defend the action as enjoined by sub-rule 9(2) of Order 24 of the rules of the trial court. He, nonetheless, argued that by filing a Memorandum of Conditional Appearance intimating the court below that the appellant as the defendant at the trial is under receivership he did raise a triable issue within the con of sub-rule 9(2) of Order 24 justifying the case being transferred to the general cause list to be heard on the merits. The caveat, he submitted, amounts to putting the respondent and the court below on notice that the proper defendant was not before the court. He argue further that failure to join the receiver who thus became unaware of the proceeding renders any decision by the trial court to be null and void as one done without jurisdiction.
To buttress this point, the learned Senior Advocate referred to sections 393 and 394 of the Companies and Allied Matters Act, Cap. 59 of the Laws of Federation of Nigeria, 1990, on the powers of a receiver, in particular to sub-section 393(4) thereof which provides that upon the appointment of a receiver his powers over the property or undertaking of the company supersedes the powers of the directors or liquidators of the company contending that inasmuch as the company had been divested of any power over its affairs at the time the Writ was issued the Memorandum of Conditional Appearance is a defence to the respondent’s action. He submitted that on the test posited in Jipreze v. Okonkwo (1987) 3 NWLR (Pt. 62) 737,744, the defence that the appellant was under receivership is not a fanciful one; it discloses a triable issue, he agitated. He commended to this court the analogy of the pragmatic approach by the Supreme Court in U.T.C (Nigeria) Ltd. v. Pamotei (1989) 2 NWLR (Pt. 103) 244, where on a summary trial, as in the case in hand, the court did not support the rejection by the trial court of the defendant filing a statement of defence instead of an affidavit stipulated for raising a defence to the action. What is important, he contended, is whether the facts about receivership mentioned in Memorandum of Conditional Appearance disclosed a defence justifying the case being heard on the merits.
The learned Senior Advocate emphasised the fact that filing the memorandum of Conditional Appearance, instead of notice of intention to defend is a mistake of the counsel for which he urged this court not to penalise the appellant on the principle of law that the sin of a counsel should not be visited on his client in support of which he cited Doherty v. Doherty (1964) NMLR 144 (1964) 1 All NLR 299; Akinyede v. The Appraiser (1971) 1 All NLR 162, 165; Ahmadu v. Salawu (1974) 1 All NLR (Pt. 11) 318,324; Anisiubu v. Emodi (1975) UILR 252; and Bowaje v. Adediwura (1976) 6 SC 143,147.
Responding learned counsel for the respondent dismissed the argument that there was appointment of any receiver as the appellant who alleged that there was such an appointment failed to produce the Deed of Appointment which he failed to attach to the Memorandum of Conditional Appearance as she claimed that she did. He argued that the appellant’s failure to file Notice of Intention to Defend the action means that she had no defence to the respondent’s claims nor could any defence be made out of the Memorandum of Conditional Appearance which the learned trial Judge leant over backwards to consider but found to be of no avail to the appellant.
The learned counsel contended that the submission that the decision of the trial court should be set aside because the appellant is under receivership is begging the question when there is no evidence before the trial court of the appointment of a receiver. He submitted that it is not enough to make an allegation of fact that a situation exists the assertion must be supported by evidence relying on Agro Millers Ltd. v. C.M.B. (1997) 10 NWLR (Pt. 525)469,478-479, where this court held that bare averments in an affidavit unsupported by source of the facts is an insufficient disclosure of a defence on the merits.
On the contention that the legal effect of the appellant being under receivership is that the proper parties were not before the court, the learned counsel submitted that the argument is idle since it is for the appellant who borrowed money from the respondent to show why it should not pay its indebtedness; she cannot be allowed to hide under receivership, he argued. On this point, the learned counsel urged this court to invoke the provision of sub-section 149(d) of the Evidence Act on presumption against the appellant for failure to produce the Deed of Receivership that was available to her contending, albeit inappropriately, that because if the Deed is produced it will be unfavourable to the appellant. The learned counsel debunked the contention that sections 393 and 394 of the Companies and Allied Matters Act can affect the decision of the learned trial Judge since the sections ‘do not operate to render void judgment reached against a company under receivership. He dismissed as frivolous the excuse by the appellant of not being able to prepare her defence because of the absence from the country of her Managing Director who had custody of the relevant documents but who is receiving medical treatment outside the country.
The thrust of the argument of learned counsel for the respondent would seem to be the forceful contention that what is required to offer as a material for consideration in an action on the undefended list is notice of intention to defend as stipulated by sub-rule 9(2) of Order 24 which the appellant did not file. He submitted that the learned trial Judge having found no defence in the Memorandum of Conditional Appearance filed erroneously by the appellant it was open to him to have entered judgment for the respondent on the undefended list as he did implying that the decision is unimpeachable as the law stands.
Fused together the issues formulated by both parties the summary of the amalgam is whether it was proper for the learned trial Judge to have entered judgment for the respondent on the undefended list where the defendant filed no notice of intention to defend the action but filed instead a Memorandum of Conditional Appearance. The arguments of learned counsel on the issue are conventional as canvassing the non-compliance with a seeming constituted action on the undefended list without sparing attention to examine how the action, in the first place, came to be placed on the undefended list. In other words, the focus was on non-compliance with sub-rule 9(2) of order 24 in total disregard of rule 14 of Order 5 which is the genesis of the problems endemic to actions on the undefended list in all the judicial units where the model of that rule operates. In any case, rule 14 deals with the conception of the action that properly falls within the ambit of the summary procedure of undefended list with its distinct requirements while the fabric of rule 9 of Order 24 deals with the action that has passed the litmus test of rule 14 of Order 5 to emerge as an undefended action to which a defendant is called upon to react. Thus, the issue raised calls for a close examination of those rules with a view to identifying the prerequisites for placing an action on the undefended list before considering the criteria for resolving whether a given action should be tried on the undefended list or transferred to the general cause list. To this end and for the sake of clarity, the analysis must begin with a reproduction of the material provisions of the rules governing action on the undefended list from Anambra State High Court Rules, 1988, that are chronicled as follows:
Rule 14 of Order 5
“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.”
Rule 14 is complemented by rules 15 of Order 5 and rule 2 of Order 9. The former enjoins that the writ of summons issued pursuant to the application in rule 14 must contain ‘the return date of the writ’ and that the action ‘shall be disposed of as prescribed in Order 24 rule 9’ while rule 2 of Order 9 provides that no pleading shall be filed in the action unless on the order of the court when ‘the suit is placed in the general cause list’.
Sub-rules 9(2). (4) & (5) of Order 24:
“(2) If the party served with the writ of summons and affidavit delivers to the Registrar, not less than five days before the day fixed for hearing, a notice in writing that he intends to defend the suit, together with an affidavit setting out the grounds of his defence, and the court is satisfied that there is a triable issue, then and in such case the suit shall be entered in the general list and pleadings shall be filed”.
“(4) Where any defendant neglects to deliver the notice of defence and affidavit, prescribed by sub-rule (2), within the time fixed by the said rule, and is not let in to defend in accordance with the provisions of sub-rule (3), or where he delivered the notice and affidavit but the court is not satisfied there from 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 to prove his case formally.
(5) 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”.
Sub-rule 9(2) of Order 24 reproduced above is complemented by sub-rule 9(3) thereof which allows a defendant who fails to file a Notice of Intention to Defend within the time stipulated for doing so yet another opportunity to be let in to defend the action if he can, ‘before judgment is entered’, file ‘an affidavit disclosing a defence on the merits and satisfactorily explaining his neglect’. The provision of sub-rule 9(5) is particularly invaluable as a fall-back in aid of the exercise of the discretion of the Judge on whether an action should be heard on the undefended list or be transferred to the general cause list as I shall touch upon later.
The two steps demarcated by the above provisions on the undefended list procedure will be examined in turn with a view to identifying how an action is placed on the undefended list and how a decision is reached on whether an action should be tried on the undefended list or be transferred to the general cause list.
On the first step, the primary concern is to ascertain who decides what action should be placed on the undefended list. Rule 14 of Order 5 vested that power absolutely in the plaintiff who makes the decision which is not subject to any veto by the court. It is sufficient for the plaintiff to make a declaration in the affidavit supporting his application for a writ of summons that in his belief the defendant has no defence to the action. On the strength of that declaration the suit must be entered on the undefended list without any further ado. That follows from the implication of the directive in rule 14 of Order 5 that upon verification by affidavit of the grounds upon which a plaintiff based his claim followed by the declaration that in his belief there is no defence to the action “the Registrar shall enter the suit in… the ‘undefended list”‘.
Under the Rules of Anambra State High Court there is no mechanism for vetting the plaintiff’s declaration whether the suit is a contentious one nor can the Judge to whom the action is assigned override the decision that the action is to be heard on the undefended list until the matter comes up for hearing when the test of whether the plaintiff’s declaration that there is no defence to the action turns largely on whether the defendant filed any notice of intention to defend.
The provision of rule 14 of Order 5 of Anambra State High Court Rules, 1988, appears to be a departure from the provision of rule 9 of Order 3 of the old Supreme Court Rules, Cap. 211 of 1948 Edition of the Laws of Nigeria, which is the prototype of the modern day legislations on the undefended list procedure. Indeed, it is a departure from the parent legislation on the matter in rule 9 of Order 111 of the High Court (Civil Procedure) Rules of the former Eastern Nigeria, Cap. 61, which is a facsimile of rule 9 of Order 111 of the old Supreme Court Rules and it reads:
“Whenever application is made to a court for the issue of a writ of summons in respect of a claim to recover a debt or liquidated money demand and such application is supported by an affidavit setting forth the grounds upon which the claim is based and stating that in the deponent’s belief there is no defence thereto: the court shall, if satisfied that there are good grounds for believing that there is no defence thereto; enter the suit for healing 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 circumstances of the particular case”. (Italicising Mine)
Under those two rules the decision about whether an action should be placed on the undefended list is that of the court which vets the plaintiff’s verifying affidavit and determines at the end of the exercise whether there are good grounds for believing that there is no defence to the action. Rule 9 of Order 111 of the old Supreme Court Rules came for consideration in the Federal Administrator General v. Daniel (1958) 3 FSC. 115; John Holt & Co. (Liverpool) Ltd. v. Fajemirokun (1961) All NLR 492; UAC. (Tech.) Ltd. v. Anglo Canadian Cement Ltd. (1966) NMLR 349; and Bank of the North Ltd. v. Intra Bank SA. (1969) 1 All NLR 91. Rule 9 of Order 111 of the High Court (Civil Procedure) Rules of the former Eastern Nigeria were considered in Eastern Nigeria Development Corporation v. Duruma (1966-67) 10 ENLR 201; and Ukoh v. Akatu (1974) 4 ECSLR 202. In the latter case, Oputa, J., as he then was, gave an indication, at page 205, of the practice of vetting an application for a writ before sanction is given for the issuance of one to be placed on the undefended list.
Random samples of the rules of the High Court from other states of the Federation outside the model of the Anambra State High Court Rules show unanimity on the subject matter that the decision whether an action should be placed on the undefended list is the prerogative of the court which is under a duty to sift the application for a writ of summons. A few of the rules on the point with the decision in which each rule has been considered are annotated hereunder as a buttress of this conclusion.
The old Supreme Court (High Court) Rules, Cap. 211 of the 1948 Edition of the Laws of Nigeria, that was in force in the old High Court of the unitary legal system of Nigeria were later adopted by the State High Courts in the country. Order 111, rule 9, thereof was applied by the West African Court of Appeal on appeal from the old Supreme Court (i.e. High Court) of Nigeria in Ojikutu v. Odeh (1954) 14 WACA 640. The same rule was applied as part of the Rules of the former Benue-Plateau State High Court in Bentworth Finance (Nig,) Ltd. v. Bello Gwambe (1969) 2 ALL NLR 192, in which there was a painstaking exposition of the mechanics of the undefended list summary procedure. The Supreme Court examined rule 9 of Order 111 as part of the Rules of Lagos State High court in Olubusola v. Standard Bank (1975) 1 All NLR (Pt. 1) 125; and as part of the Rules of the former North-Eastern State High Court in Uba Kano v. Bauchi Meat Products Co. Ltd. (1978) 11 NSCC 481.
The old Supreme Court Rules Cap. 211, were later re-enacted as State Rules for the various State High Courts in the country including the High Court of the former Eastern Nigeria with the provisions of the rules on the undefended list as an originating process left intact except in Lagos State where a new summary procedure for commencing action was fashioned out from the English law as I will touch upon later. The development heralded the advent of a rash of the high Court (Civil Procedure) Rules in the country. A notable one from the point of view of the clarification of the procedure on the undefended list trial is the Kwara State High Court (Civil Procedure) Rules, 1975, in which the provision of Order 3, rule 8, thereof was examined in an unreported decision of this court in A.G. Leventis v. S.A. Bukoye Case No. CA/K/13M/88, delivered on 8/12/88, and by the Supreme Court in Ben Thomas Hotel Ltd. v. Sebi Furniture Co. Ltd. (1989) 12 SCNJ 171. In the wake of adoption of uniform Civil Procedure Rules in the High Courts for the country emerged Kaduna State High Court (Civil Procedure) Rules, 1987, the provision of Order 22 rule 1, of which was considered in Okeke v. Nicon Hotels Ltd. (1999) 1 NWLR (Pt. 586) 216; and Kaduna State Transport Authority v. Ofodile (1999) 10 NWLR (Pt.622) 259; Pwol v. Union Bank Plc. (1999) 1 NWLR (Pt.588) 631, interpreted the provision of Order 23, rule 1, of the Plateau State High Court (Civil Procedure) Rules, 1987, on the point at issue. Under the parallel Rules of State legislations were considered Nigeria Arab Bank Ltd. v. Felly Keme (Nigeria) Ltd. (1995) 4 NWLR (PI. 387) 100; and Dan Azumi v. Pan African Bank Ltd. (1996) 8 NWLR (Pt.467) 462. The Lagos State High court broke off from the summary procedure of the undefended list on the model of the old Supreme Court Rules and came up with the ‘specially endorsed writ’ provided for under order 3, rule 4, and Order 10 of the Lagos State High Court (Civil Procedure) Rules, 1972. The operation of the procedure was examined at length by the Supreme court in Nishizawa Ltd. v. Jethwani (1984)15 NSCC 877; and U.T.C. (Nigeria) Ltd. v. Pamotei (1989) 20 NSCC (Pt.1) 523, where on pages 562-563 of the Report of the latter case the procedure was contrasted with the procedure under the undefended list. The object of the procedure under order 3 & 10 thereof was opined in Shodipo v. Lemminkainen OY (1986) 17 NSCC (Pt. 1) 79, 85, to be a measure designed to enable a litigant to obtain summary judgment without proceeding to trial the court explaining that the rules ‘are for disposing, with dispatch, of cases which are virtually uncontested’. What is important for the purpose in hand is that from the decided cases on the procedure under the specially endorsed writ, like the procedure under undefended list, the decision on whether the plaintiff’s action is amenable to summary trial is absolutely that of the court which must sift the plaintiff’s claims with a fine-tooth comb. For this, see Diah Nasr v. Elegbede (1980) 1-3 CCHCJ 376; Barclays Bank of Nigeria Ltd. v. Nwizugbo (1980) 4-6 CCHCJ 75; Ogbe v. NNPC (1980) 4-6 CCHCJ 93; and Balogun v. Bolaji (1981) 1-3 CCHCJ 258.
This review must be wound up with the decision in A.G ., Leventis v. Bukoye (supra), that stands out as a landmark on the material point at issue. On the duty of a Judge who is seized of an application to place a case on the undefended list this court, per Mohammed, JCA., as he then was, held that in exercising his discretion to place the action on the undefended list it is imperative for the Judge to make a definite finding that there are good grounds for believing that there is no defence to the claim as a sanction for the issuance of the writ. It is a condition precedent to the validity of any trial conducted under the summary proceedings of the undefended list.
What form should the pre-placement sanction take was mooted in Okonkwo v. Agwu (1985) HCNLR 610,614, a decision on the parallel provision of the old Benue-Plateau State High Court (Civil Procedure) Rules. But in different forms the idea of a prior scrutiny by the court of a writ of summons before placement on the undefended list has taken a firm hold on the attitude of the court judging from the decisions on the interpretation of the various rules of court on the matter that are in pari materia. In this regard, see also Nwakama v. Iko Local Government of Cross River State (1996) 3 NWLR (Pt. 439) 732,739; Maley v. Isah (2000) 5 NWLR (Pt. 658) 651,664; and Baba v. Habib Nigeria Bank Ltd. (2001) 7 NWLR (Pt.712) 496,504. The notion of leaving the decision on whether a defendant has a defence to an action to the ipse dixit of his adversary, the plaintiff, without the power of pre-trial scrutiny of the claims by the court is grotesque and very antithetical to natural justice.
With regard to the position under rule 14 of Order 5 of the Anambra State High Court Rules, 1988, that rests the decision whether an action should be placed on the undefended list on the ipse dixit of the plaintiff there can be no judicial assessment of whether, prima facie, the action is one that can properly be placed on the undefended list until the action comes up for hearing. In such a situation, it is a scintillating fallacy to confine the duty of the Judge to the simple inquiry about whether the defendant has a defence to the plaintiff’s action which does not arise until after the scrutiny of the plaintiff’s case with a view to determining whether, in Law, it is an action that ought, in the first place, to be placed on the undefended list. Thus unlike under other rules of court where the decision to place a matter on the undefended list is primary and clearly separated from the inquiry into whether the defendant has a defence to the action that is determined at the hearing under the Anambra State High Court Rules, 1988, the decision on both questions is fused. Therefore, in the jurisdiction where rule 14 of Order 5 operates a trial Judge faced with a decision whether to hear a case on the undefended list or to transfer it to the general cause list must have to begin with the scrutiny of the plaintiff’s claims and be satisfied that the action is non-contentious and one that should be placed on the undefended list.
Therefore, it is jumping the gun to begin with the question of whether the defendant filed a notice of intention to defend the action as that is tantamount to an invitation to a defendant to defend an action before the court is satisfied that there is a prima facie case calling for a defence. That will be casting the onus of proof on the defendant and offends against the fundamental principle of our law that the onus of proof is on the plaintiff who must establish a prima facie case before the defendant can be called upon to defend the case: see section 137 of the Evidence Act and Alade v. Aborishade (1960) 5 FSC. 167, 170-171; Elias v. Omo-Bare (1982) 13 NSCC 92,100; and Owoade v. Omitola (1988) 19 NSCC (Pt.1) 802, 808- 811.
From the facts of the case on appeal that is a duty which the learned trial Judge threw overboard. Just as it is precipitate to decide a case without being apprised of the facts it is preposterous to call for the defence of an action on the undefended list until you are satisfied that the action is one that should, as a primary consideration, be placed on the undefended list. Therefore, I must examine the verifying affidavit of the plaintiff with a view to seeing whether as he avowed the action is one which the defendant cannot argue against because it is too tight as to insulate the claims against any defence and, therefore, a proper action to be placed on the undefended list.
The transactions between the parties began with a banking facility for N80 million granted to the appellant for over a period of 90 days with interest payable on the facility. The appellant defaulted and the debt was restructured. According to the respondent, when the debt rose to N105,783,739 (sic) she wrote to the appellant on 16/12/98, exhibit ‘E’; the second to the last paragraph in which the details of the indebtedness was outlined read:
“Meanwhile, due to the delinquent status of your account, the sum of N80,000,000.00 (Eighty million naira only) of the outstanding indebtedness has been converted into a Bankers Acceptance effective 26th October, 1998 with requisite interest charges accruing at every month end into the current account. Consequently, your current account was credited on the 19th November, 1998 with the sum of N80 million value dated 26/10/98 and a corresponding Bankers Acceptance (Loan) liability account of same amount created against your company accordingly. Thus, your exposure to the bank as at date is as follows:
Bankers Acceptance N80,000,000.00
Overdraft : N25,738,789.00
That letter and the state of the appellant’s account were averred in paragraphs 13 and 14 of the verifying affidavit. However, the averment in paragraph 15 of the affidavit that ‘pursuant to perfecting conditions for the said loan’ the Board of Directors of the appellant passed a resolution accepting the loan is open to argument if it is intended as a reference to the restructured facility of N105,738,789.00 in exhibit ‘E’ as the resolution, exhibit ‘F’, which is dated 4/8/97 pre-dates the restructuring of the debt and was expressly stated to be the acceptance of N80 million overdraft facility offered to the appellant in the respondent’s letter of 15/7/97, exhibit ‘D’. In any case, in paragraph 17 of the affidavit the respondent deposed that the amount owed her by the appellant as at 25/4/2000 was N168,077,48S.40 adding in paragraph 19 that both parties agreed the appellant would pay the legal expenses incurred by the respondent in recovering the loan and interest the cost of which she estimated in paragraph 20 would be N3,500,000.00.
There is no direct response by the appellant to the plaintiff’s claims as reviewed above as the three documents written by the appellant and attached to the respondent’s verifying affidavit have no bearing on the current position of the appellant’s indebtedness.
Exhibit ‘A’, dated 9/12/96, is an application by the appellant for the N80 million facility; exhibit ‘C’, dated 24/3/98, is a letter asking for extension of time from 6 months to 9 months for instalmental payment of the N80 million overdraft facility while exhibit ‘F’, dated 4/8/97, is the appellant’s Board of Directors’ resolution which as I have noted earlier is acceptance of the approval of N80 million overdraft facility conveyed to the appellant in exhibit ‘D’, the respondent’s letter dated 15/7/97.
From the above review of the verifying affidavit evidence can it be contended that there is a clear and unequivocal evidence of admission by the appellant of liability for the sums of N 168,077,485.40 and N3,500,000.00 claimed in the writ to justify the action being placed on the undefended list as one to which the appellant had no defence? If the affidavit evidence proves anything it is the conviction of the respondent that the appellant was owing her those sums of money.
But the plaintiff’s conviction cannot in law be equated to proof as there must be evidence from which admission of the indebtedness can be inferred of which there is no semblance in the verifying affidavit.
In my opinion, from the point of view of judicial sanction required to qualify as an uncontested action, vis-a-vis the respondent’s opinion prescribed by rule 14 of Order 5 as the condition for placing a case on the undefended list, the respondent’s claims fail miserably to satisfy the requirements of an action that should come under summary trial procedure designated as undefended list, a judicial procedural altitude at which the respondent’s claims ought not to fly.
The respondent’s action which technically was on the undefended list was seriously compromised by the further affidavit filed on 5/10/2000 on behalf of the respondent by her counsel. In paragraph 5, it was deposed that ‘at the time of filing the suit the up to date balance report sheet of the defendant’s (Brifina Ltd.) current account with the plaintiff was not readily available’ and continued in paragraph 6 that now the report sheet had been made available to the respondent and is attached and marked exhibit ‘G’. The deponent concluded in paragraph 7 that the overdrawn balance of the appellant’s account as at 25/6/2000 is N176,624,503.76. The question may be asked if at the time of filing the respondent’s action on 22/5/2000 the balance report sheet of the appellant was not available to the respondent as the appellant’s bankers what credence can the verifying affidavit of 22/5/2000 command, especially paragraphs 14, 17, 19 & 20 thereof? What credit, it may further be asked, can be given to the declaration in that affidavit that the appellant has no defence to the respondent’s action? The answer to the last poser may be found in paragraph 18 of the verifying affidavit that the respondent was told so by her counsel. But the question of making available to the respondent ‘the up to date balance report sheet’ of the appellant who was the customer of the respondent who kept the accounting records is inane or, at best, facetious as calculated to induce laughter.
If that be the state of evidence when the case came up before the learned trial Judge on 22/11/2000 after several adjournments how did he tackle the primary question of whether the suit was, in law, the proper type to be placed on the undefended list and how does that rhyme with the trial under the undefended list as an uncontested action? That leads me to the second stage, giving judgment on an unscrutinized writ for the amount claimed by the respondent.
The decision of the learned trial Judge, at pages 29-30 of the record, is that the appellant is liable to the respondent because the appellant did not file notice of intention to defend the action as enjoined by sub-rule 9(2) of Order 24 nor did she seize the opportunity of being let in to defend the action after the stipulated time by a recourse to the indulgence warranted by sub-rule 9(3) thereof. He dismissed the Memorandum of Conditional Appearance as disclosing no defence that could avail the appellant. But the learned trial Judge did not consider the primary question of whether the suit was a proper one to be placed on the undefended list, an issue that is vital to any liability by the appellant for the action on the undefended list because the claims to which failure to file a defence is made the basis of the reliefs granted to the respondent were mere supposition by operation of rule 14 of Order 5. As I concluded on examination of the primary step in an action on the undefended list verification of such claims by the court is deferred till the trial of the action but one which cannot be ignored or glossed over.
This is because undefended list as a process is a short form of proceedings in which the parties acted out in miniature the full dramas of a regular trial, most importantly the observance of the doctrine of burden of proof into which it is built the element of constitutional right of fair hearing. The essence of the doctrine is that where a given allegation forms an essential part of a party’s case the onus of proof of such allegation rests on him. See sections 135 to 137 of the Evidence Act and Archibong v. Ita (1954) 14 WACA 120; Elias v. Disu (1962) 1 All NLR 214,218; Elemo v. Omolade (1968) NMLR 359, 361; Osawaru v. Ezeiruka (1978) 6-7 S.C. 135, 145; Umeojiako v. Ezenamuo (1990) 1 SCNJ 181,189; and Ugbo v. Aburime (1994) 9 SCNJ 23,39.or 8 NWLR (Pt. 363) 1.
The combined effect of those sections of the Evidence Act and the principles evolved from their interpretation by the judicial authorities typified by the cases cited above is to define the parameters of the burden of proof as regards both the legal and evidential burden.
Under that doctrine the plaintiff who would fail if no evidence is given in support of his claims has the burden of establishing a prima facie case which the defendant is called upon to answer and the umpire who decides whether the requisite level of proof has been attained is the Judge.
Thus, the mandatory nature of the duty of the court to scrutinize the plaintiff’s claims before placing it on the undefended list does not arise from the rule of the court but rather from the Evidence Act that laid down what level of proof must be established to make out a prima facie case as the standard probative level which cases that are being agitated to be placed on the undefended list must measure up to. Consequently, where the opportunity by the court to scrutinize the plaintiff’s application to place his case on the undefended list is hampered by the automatic placing of the case on the undefended list by operation of rule 14 of Order 5 the court is still not relieved of its primary duty to vet the claims first at the trial and it is a charade to skip that duty and begin a deliberation on whether the defendant filed a notice of intention to defend. It has been held by this court that ‘entry of a suit in the undefended list is not automatic’ nor is filing a notice of intention to defend an abstract matter: see Okeke v. NICON Hotels Ltd. (supra), at pages 222, and Pwol v. Union Bank Plc (supra) at page 635. On both scores, the court must first scrutinize the plaintiff’s claims and be satisfied that they disclosed prima facie case within the meaning of that expression in Duru v. Nwosu (1989) 4 NWLR (Pt. 113) 24, 48, so as to be assured that as the plaintiff asseverated the defendant has no defence to the action. It is against this background that I see failure of the learned trial Judge to examine the primary issue of whether the respondent’s action is a proper one to be placed on the undefended list as breach of a crucial judicial duty that is fundamental to arriving at a just decision. Indeed, by failure of the learned trial Judge to examine whether it was proper to place the respondent’s action on the undefended list it is implied that invitation to the appellant to file a notice of intention to defend the action amount to shifting the onus of proof to the appellant, qua defendant at the trial court, in circumstances where it had not been shown that the respondent as the plaintiff had made out a prima facie case. As I have earlier discussed, that is a serious error which violates the principle that the legal burden of proof is on the respondent as the plaintiff at the court below. See Dawodu v. NNPC. (1998) 1 SCNJ 95,106; Odukwe v. Ogunbiyi (1998) 6 SCNJ 102, 116-118; and Okonkwo v. Okonkwo (1998) 7 SCNJ 246,254.
It behoves me to say that the root of the misapprehension about the summary procedure of the undefended list is largely accounted for by the inability to look beyond the provisions of the Rules of Court in total oblivion of the fact that the proceedings under the undefended list are not exempted from the operation of the law governing the conduct of proceedings in the High Court, especially the Evidence Act which must be observed as the principal chart to keep on track court proceedings that also serves as a barometer for filtering the truth in supplication before the temple of justice. The area of dispensation from where a summary trial under the undefended list has been exempted were noted in the decision of this court in Chiedozie v. Omosowan (1999) 1 NWLR (Pt. 586) 317, where my learned brother Akpabio, JCA., in a witty dictum captured the limits of the immunity of the summary proceedings from the requirements of the regular trial. He expounded, at page 327, that:
“Learned counsel for appellant seems to give the impression that ‘undefended list’ cases are something ‘out of this world’ which are exempted from other rules that govern other ‘mortals’ or cases in the normal run of litigation. But that is certainly not so. Undefended list cases are not governed by rules in any separate handbook. The immunity they enjoy are only those in Order 24 rule 9”. (Italicising Mine)
It may be added that by a cross-application of sub-rule 15(2) of Order 5 and rule 2 of Order 9 summary trial under the undefended list procedure is also exempted from filing of pleadings. That provision coupled with the provision of sub-rule 9(4) of Order 24 which expressly excuses a plaintiff from summoning witnesses before judgment is entered for him would seem to put the judgment on the undefended list on the same footing as judgment rendered under rule 14 of Order 23 pursuant to admission by the defendant under rule 10 thereof. This is in consonance with the provision of rule 19 of order 24 which provides that at the trial of an action no evidence shall be led on all allegations or the claim of the plaintiff or any part thereof admitted by the defendant.
But they strengthen the argument that in an action on the undefended list there is a duty on the court to apprise itself of the plaintiff’s claims and be satisfied that, prima facie, it is non-contentious in the sense that from the plaintiff’s verifying affidavit there is evidence of admission of the claims by the defendant as a justification for dispensing with a trial of the action on the merits. See Grand Cereals & Oil Mills Ltd. v. As-Ahel International Marketing Procurement Ltd. (2000) 4 NWLR (Pt. 652) 310,326; Cash Affairs Finance Ltd. v. Inland Bank (Nig.) Plc. (2000) 5 NWLR (Pt. 658) 568,587; and Kolo v. Taibu (2001) 4 NWLR (Pt. 702) 200, 216. In any case, apart from exemption from leading oral evidence under sub-rule 9(4) of Order 24 the proceedings under the undefended list is subject, among other things, to the full rigours of the provisions of the Evidence Act which, as I have found, the trial by the learned Judge of the court below violated and rendered his decision insupportable in law.
But the gravamen of the error of the learned trial Judge is ignoring the provision of sub-rule 9(5) of Order 24 that vests him with the discretion to transfer an action to the general cause list ‘on the ground that the suit is not suitable for placement in the undefended list’ notwithstanding the fact that in every respect including failure to file notice of intention to defend the action is, prima facie, proffered as triable on the undefended list. With utmost respect to the learned trial Judge that option is dictated by the summary of the plaintiff’s verifying affidavit rendered in this judgment which is shown to be contradicted by the further affidavit in support of the claims filed by the plaintiff’s counsel. The cumulative result of the two affidavits strongly suggests that the action is potentially contentious and one which ought to be transferred to the general cause list for full-dress hearing. To have proceeded to hear the action in the face of the plaintiff’s inconclusive affidavit evidence that is marred by contradictions on the pre that the appellant did not file notice of intention to defend is to take a narrow view of the law about the duty of the plaintiff to prove as a primary matter that the facts he deposed to are enough to establish a prima facie action against the defendant. To say the least, such an approach is perfunctory and a prosaic attempt to hang to the twig of technicality.
Enough has been shown to demonstrate the congeries of errors in which the decision of the learned trial Judge is submerged which are decisive of this appeal. It remains to make a few observations on the highlights of the submissions of the learned counsel which are complementary to the main issue, i.e. the legal effect of the respondent’s failure to file a notice of intention to defend. Firstly, on the effect of the former counsel to the appellant filing memorandum of Conditional Appearance instead of notice of intention to defend rule 11 of Order 8 obliquely supplies the answer. The learned counsel made no application to set aside the service of the writ and the result must follow that by ignoring the Memorandum of Conditional Appearance the learned trial Judge overruled the objection which must, by virtue of sub-rule 11(2), ‘operate as the entry of unconditional appearance by the defendant’. Secondly, as regards the effect of the disclosure in the Memorandum of Conditional Appearance it seems to me that the court had by that medium been put on notice however irregularly or inelegantly on a matter of law calling for further inquiry by the court. If in fact the appellant is under receivership the legal effect is spelt out by sub-sections 393(3) and (4) of Companies and Allied Matters Act read with paragraph 5 of Schedule Eleven thereto. Whether as learned counsel for the respondent contended sections 393 and 394 ‘do not operate to render void judgments reached against a company under receivership’ is not material for a resolution of the issue raised in this appeal. But if as stipulated by paragraph 5 of the Eleventh schedule to the Act a receiver is vested with the ‘power to bring or defend any action or other legal proceedings in the name and on behalf of the company’ I wonder whether at the time the action came up for hearing the proper parties could be said to be before the court. In any case, it is a situation that called for caution as no court would want to render a decision that is brutum fulmen. For an insight into the power of a receiver, see Uwakwe v. Odogwu (1989)5 NWLR (Pt. 123) 562; and Ponson Enterprises Nig. Ltd. v. Njigha (2000) 15 NWLR (Pt. 689) 46.
Thirdly, as regards the plea by learned Senior Advocate for the appellant that filing Memorandum of Conditional Appearance by the appellant’s counsel instead of notice of intention to defend is an error of counsel for which the appellant should not be punished the plea in favour of which the apex court and this court have always learnt has become commonplace that is often cited by rote by some middle-brow legal practitioners to cover up many sins including bizarre ignorance of the law as in the present appeal. The courts have always taken the plea in its strides on the rationale articulated by the Supreme Court in Bello v. A.-G., Oyo State (1986) 17 NSCC (Pt. 11) 1257, where the court, per Karibi-Whyte, JSC., at pages 1284-1285, explained the justification for the indulgence with the sombre mood that:
“… the day the courts allow the inarticulacy or ignorance of counsel to determine the result of n action before it (sic), that day will herald the unobtrusive genesis of the unwitting enthronement of injustice aided by the court itself by default”.
To the like effect, see also the dictum of Eso, JSC., in Ipadeola v. Oshowole (1987) 5 SCNJ 200, 209. But an inducation that counsel are wearing out that indulgence is manifested by the decisions of the same court in University of Lagos v. Aigoro (1984) 15 NSCC 745, 772; and Akanbi v. Alao (1989) 20 NSCC (Pt. 11) 263, where the court put its foot down to check the unbridled resort to that plea as an excuse for puerile blunders on elementary matters. The court took a hard stand to show the limit it would go to accommodate that plea as an excuse for failing in technical craftsmanship. At this level, from the numerous mistakes that one encounters with frequency on elementary points of law the phenomenon appears to be a pointer to the symptom and prognosis of creeping vocational malaise which may not be within the immediate control of the judiciary to ameliorate. As luckily the resolution of the issue raised in this appeal does not directly touch on that point there the matter must rest.
That rounds up the broad spectrum of the issue canvassed in this appeal and the collateral matters highlighted by the learned counsel with bearing on the facts of the case. From the analysis of the fatal errors with which the proceedings of the court below are beset the lone issue in this appeal must be resolved in favour of the appellant.
Because of the fundamental nature of the issue canvassed in this appeal to the summary trial under the undefended list procedure it behoves me to reflect on what I see as the fair hearing element of the provision of rule 14 of Order 5 of the Anambra State High Court Rules, 1988, as it impinges upon the constitutional right of the appellant.
Judgment was entered for the respondent for a mind-bogging sum of N171,577,485.40 on the undefended list. This was made possible by operation of rule 14 of Order 5 of the rules of the trial court which enjoins the registrar to place on the undefended list a writ of summons for a claim for recovery of debt or liquidated money demand if in the affidavit accompanying application for the writ setting down the claim the plaintiff also deposed that the defendant has no defence to the claim. By that process the court is sidelined from the decision to place the action on the undefended list which is made solely on the plaintiff’s declaration that the defendant has no defence to the action. By sheer misfortune of not getting a proper advice no notice of intention to defend the action was filed by the defendant on behalf of whom Memorandum of Conditional Appearance was erroneously filed instead. The action came before the learned trial Judge who with a facile doctrinaire idea of undefended list process grappled with the form of the procedure leaving the substance including the discretion given to him to meet the justice of special or borderline cases. He entered judgment for the respondent on the ground that no notice of intention to defend was filed by the appellant and without the scruples to reflect on whether the action is suitable to be placed on the undefended list.
Against this factual backdrop it may be wondered whether justice can be said to have been done in circumstances where the plaintiff who enlisted the authority of the court to get redress for a wrong done to her is allowed to dictate the terms on which the inquiry should be conducted by sheer declaration made possible by the rule of the court that the defendant had no defence to the action, a point which the learned trial Judge neither grasped not came to grips with. Without the scrutiny at the trial about whether the action was a proper one to be placed on the undefended list which could be done by the court vetting the plaintiff’s claims as set out in the verifying affidavit it is clear that what determined the form of trial was the pronouncement of the plaintiff that the defendant had no defence to her claims. Using such a pronouncement as a yardstick for placing an action on the undefended list without the court verifying the claims is a hatchet for truncating any right of defence to the action for by retaining the action on the undefended list for trial without any verification of the affidavit evidence by the court the action has by design slid into procedural strait-jacket that scuttled it from being heard on the merits.
In such a setting, the question of whether there was a fair hearing zeroed in on the role assigned to the plaintiff in a scenario in which he was the complainant doubling as a Judge by dictating the merits of her case and the appropriate form of trial of the action and getting judgment on her own terms when the court abdicated its duty of scrutinising the plaintiff’s action on the facile excuse that no defence was filed to the action that was based on an unverified ipse dixit of the plaintiff. The rule of fair hearing entrenched in subsections 36(1)-(3) of the Constitution of the Federal Republic of Nigeria, 1999, unites two dogmas, ‘audi alterampartem’ and ‘nemo judex in causa sua’ , the keystone of which is that no one should be condemned unheard with the moral suasion that a man should not be a Judge in his own case. The operation of those dogmas was examined by this court in Omoniyi v. Central School Board (1988) 4 NWLR (Pt. 89) 448, a classic example of breach of both arms of the rule of fair hearing. In its earlier decision in Adene v. Dantumbu (1988) 4 NWLR (Pt. 88) 309, this court, per Achike, JCA., as he then was, expounded, at page 317, the nature of the right where he said:
“Inherent in this rule are the twin pillars of ‘natural justice’, now firmly engrafted in the English legal system, viz,
(a) that a court or body exercising judicial or quasi-judicial powers must hear the two parties to the dispute, or that no one should be condemned unheard. Its corollary is that a person must be given reasonable notice of the nature of the case to be met. See Otapo v. Sunmonu (1987) 2 NWLR (Pt. 58) 587, Errington v. Minister of Health (1935) 1 KB 249; Wilson v. A.-G., Bendel State (1985) 1 NWLR (Pt. 4) 572 and Onwumechili v. Akintemi (1985) 3 NWLR (pt. 13) 504; and
(b) that there should be no evidence of bias in the person called upon to adjudicate, that is, one should not be a Judge in his own cause. See Otapo v. Sunmonu (supra) and R V. Hendon RDC, EX Parte Chorley (1933) 2 K.B. 696”.
From these statements of the law there is a clear case of bias against the appellant whose adversary who is the plaintiff in the action decided the form of trial that should be adopted and upon claims that were not verified by the court. Similarly, asking the appellant to defend claims that are not verified by the Judge who had a duty to do so is a parody of hearing which is not within the contemplation of what is meant by fair hearing in sub-sections 36( 1)(3) of the Constitution of the Federal Republic of Nigeria, 1999.
Verily, entering judgment for the respondent by operation of rule 14 of Order 5 that scuttled the pre-trial scrutiny of the claims and abdication of the duty to do so at the trial by the Judge is a travesty of justice and a hobgoblin on the juridical horizon that confounds the essence of the doctrine of audi alteram partem and nemo judex in causa sua, the twin elements of the right of fair hearing. See on this point Awotedu v. The Vice Chancellor University of Ibadan (1982) OYSHC 262, 295-297; Akande v. The State (1988) 3 NWLR (Pt.85) 681, 690; Kotoye v. Central Bank of Nigeria (1989) 20 NSCC (Pt. 1) 238, 253-254; Ugo v. Obiekwe (1989) 20 NSCC (Pt. 1) 296, 306.
They provide a bird’s eye view of the variant forms which breach of the right of fair hearing may take.
Before I conclude this judgment let me shift attention to the positive side of the debate regarding the susceptible pitfalls in summary proceedings under the undefended list originating process for the benefit of those who might not have cut their teeth on the mechanics of that legal process. There are two basic steps which a Judge who is seized of an action on the undefended list must take.
Firstly, he must deliberate over whether the case should be placed on the undefended list. For a Judge operating the Anambra State High Court Rules, 1988, that preliminary step is deferred by operation of rule 14 of Order 5 until at the hearing but it become scuttled only if it is not considered at the trial when it may give rise to problems where judgment entered without considering the matter is challenged on appeal. In the scheme of the proceedings on the undefended list rule 14 of Order 5 would not appear to be well-thought-out. But its exclusion of the court from the decision to place an action ‘technically’ on the undefended list does not and cannot preclude the court from a review of that decision as the duty to do so is derived from sections 135 to 137 of the Evidence Act on the burden of proof, discussed elsewhere in this judgment, that enjoin the plaintiff in an action to establish a prima facie case before the defendant can be called upon to defend the action.
Secondly, at the trial the keystone of what would justify an action being transferred to the general cause list is denoted by the expression ‘triable issue’ or ‘bona fide issue’ in sub-rules 9(2) and (4) of Order 24. The expressions have been defined by this court for which see Ezuma v. Nkwo Market Community Bank Ltd. (2000) 10 NWLR (Pt. 676) 638, 653; and Obi v. Nkwo Market Community Bank Ltd. (2001) 2 NWLR (pt. 696) 113, 126.
What must be emphasized from the experience of the case on appeal is that action for recovery of debt involving accounts is tricky for which I consider some guidelines to be instructive.
A discrepancy between the amount claimed and the figure that can be ascertained from the supporting evidence, i.e. the verifying affidavit, raises a contentious issue that can be resolved only by being tried. Thus where the actual indebtedness of the defendant cannot be ascertained from the evidence available without a resort to other extrinsic accounting source that would operate as a defence which is good enough to justify the transfer of the action to the general cause list to enable it to be tried on the merits regardless of the fact that the defendant did not file notice of intention to defend.
Inseparably bound up with the intricacies of cases involving accounts is any action in which there is a claim for interest on the amount demanded about which caution is required having regard to the fact that action on the undefended list is for liquidated claim defined as a claim for an amount previously agreed on by the parties or that can be precisely determined by operation of law or by the terms of the parties’ agreement. See Odume v. Nnachi, (1964) All NLR 329, 333. ‘Simple interest’ as interest paid on the principal sum only may not present any serious problem. But it is a far cry from ‘compound interest’ which is interest paid on both the principal sum and the previously accumulated interest requiring calculation of a technical nature sometimes calling for introduction of evidence extrinsic to the verifying affidavit which is a pointer to the contentious nature of the claim. On the facts of this particular appeal, a case in point is exhibit ‘E’, notification of the appellant’s indebtedness to the respondent as at 16/12/98, annexed to the respondent’s affidavit through paragraph 13 and 14 thereof.
In any case, it has been held by this court that in an action on the undefended list interest which is not liquidated will not be awarded in proceedings for a liquidated claim; see Kaduna State Transport Authority v. Ofodile, (supra), at pages 265 and 269. On the consideration of interest as a test of whether an action on the undefended list should be transferred to the General cause List as a triable issue; see Ezmna v. Nkwo Market Community Bank Ltd. (supra), at page 653; Obi v. Nkwo Market Community Bank Ltd., (supra), at pages 126-127 and 129.
Again, it is worth beating in mind that undefended list summary proceedings like the Specially Endorsed writ under the Lagos State High Court Procedure Rules is for quick dispensation of justice of clearly uncontested actions. Using the proceedings to seek a relief for claims that are immersed in controversy is a brazen hardihood. In the words of Lord Evershed in Windsor Refrigeration Co. Ltd. v. Branch Nominies Ltd., (1961) Ch. 375, 396, in analogous con, ‘the shortest cut so attempted inevitably turns to be the longest way round’. It is a question of sowing the wind with assured harvest of the whirlwind about which see the view of this court in Obi v. Nkwo market Community Bank (supra), and UBN Plc. v. Government of Anambra State, (2001) 12 NWLR (Pt. 726) 155, 177-179.
The approach to the adoption of the summary proceedings of the undefended list is one of strict construction of the provisions of the rules governing it so as to ensure that the plaintiff who is the beneficiary of the process does not manipulate it to hold the defendant to ransom by blighting his right to justice which is already constricted by the summary proceedings. This policy was eloquently enunciated by the apex court in Olubusola Stores v. Standard Bank of Nigeria Ltd. (supra) at pages 56-57, where Coker, JSC., asseverated that:
“The provisions dealing with actions on the undefended list are apparently technical and we think that they are purposely created in that way in order to ensure that by asking the plaintiff to comply strictly with those rules injustice is being avoided to a defendant whose freedom to defend the case has been rather restricted. The provisions of the rules are designed as they are in order to ensure the safeguards which must necessarily be available to a defendant if the rules are followed strictly”.
In the final analysis, the result is that by not discharging his duty as enjoined by the law the learned trial Judge made a botch-up of the summary trial under the undefended list proceedings. By failing in his primary duty to decide whether, in law, the action was a proper one to be placed on the undefended list he had by default created a situation where there was no action that could be tried under the undefended list. Saddled with an obviously incompetent action he did not advert his mind to the discretion vested in him by sub-rule 9(5) of Order 24 as the logical option left for him to ease out the action to the general cause list. Instead, he seized upon failure of the appellant to file notice of intention to defend as a pre to embark on a mock-trial of a shadowy action. The cumulative result of the spiral errors was a procedural burlesque that left the substance in pursuit of shadow.
The upshot of the review of the make-believe that passed for a trial is that from the errors with far-reaching effect the learned trial Judge cannot ‘be seen to be holding the scales of justice fairly evenly and impartially’ in the con of that metaphor in Onuoha v. The State (1989) 20 NSCC (Pt. 1) 411, 421. It is a classic case of hasty justice which is a denial of justice as exemplified by the decisions of this court in Ecobank Nigeria Plc. v. Gateway Hotels (Nig.) Ltd. (1999) 11 NWLR (Pt. 627) 397, 420; and Okeke v. Nwokoye (1999) 13 NWLR (Pt. 635) 495, 510.
Therefore, the appeal is bound to succeed and I allow it. I set aside the judgment of Obidigwe, J., delivered at the Onitsha Judicial Division of the Anambra State High Court on 22/11/2000. In its place it is ordered that the action be and is hereby transferred to the General Cause List to be heard by another Judge of that Judicial Division. I award N5,000 costs against the respondent.
AKPABIO, J.C.A.: I agree.
MUHAMMAD, J.C.A: I had a preview of the lead judgment just delivered by my learned brother Olagunju J.C.A. I adopt same with all the consequential orders as mine.
Nnamdi Ibegbu, SAN (with him, Afam Obi, Esq.)For Appellant
Arthur Obi Okafor, Esq. (with him, S. T. lkpeama, Esq.)For Respondent