CHIEF MIKE OKPERE & ANOR v. ALHAJI GARBA MUSA RUGOJI & ANOR(2002)

CHIEF MIKE OKPERE & ANOR v. ALHAJI GARBA MUSA RUGOJI & ANOR

2002)LCN/1217(CA)

In The Court of Appeal of Nigeria

On Thursday, the 6th day of June, 2002

CA/K/29/01

JUSTICES

RABIU DANLAMI MUHAMMAD Justice of The Court of Appeal of Nigeria

VICTOR AIMEPOMO OYELEYE OMAGE Justice of The Court of Appeal of Nigeria

JOSEPH JEREMIAH UMOREN Justice of The Court of Appeal of Nigeria

Between

CHIEF MIKE OKPERE
2. FORTUNE FIVE FARMS LTD Appellant(s)

AND

ALHAJI GARBA MUSA RUGOJI
2. RUGOJI ENTERPRISES NIGERIA LTD Respondent(s)

RATIO

WAYS OF INSTITUTING CIVIL PROCEEDINGS

By the provision of Order 1 Rule 1 of the Katsina High Court (Civil Procedure) Rules, Civil Proceedings may be begun by writ, originating summons, originating motion or petition and by Order 22 of the said Rules for a matter to be placed under the undefended list, there must be an application to the court for the issuance of a writ of summons, the writ of summons if issued will then be marked “Undefended List.” As could be seen the only way to commence this suit is by a writ of summons. A court is only competent in a matter when all the conditions precedent prior to its assumption of jurisdiction are fullfilled. In Madukolu & Others Vs Nkemdilim (1962) ALL N.L.R. (part 2) 581 Bairamian F. J. stated at page 595 that:-
“A Court is competent when –
(1) it is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and
(2) the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction; and
(3) the case comes before the court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.
Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided: the defect is extrinsic to the adjudication.” PER MUHAMMAD, J.C.A.

WHETHER OR NOT RULES OF COURT MUST BE OBEYED

In the decision in SOLANKE VS. SOMEFUN (infra) the Supreme Court stated that Rules of court are meant to be obeyed. They regulate matters in court and help parties to present their cases within a procedure made for the purpose of a fair and quick trial. It is the strict compliance with the rules that makes for quicker administration of justice. Any party seeking the discretionary power of a court must bring his case within the provision of the rules on which he purported to make his application, failing which it is but fair and right that the court should refuse to exercise its discretion in his favour. See also NWOYE VS. NIGERIAN ROAD CONSTRUCTION LTD. & ANOR. (1966) NMLR 254., SAIDU VS. ABDULLAHI (1989)4 NWLR (Pt.116) 387 at 425 paras A-B., ATANDA VS. AJANI (1989)3 NWLR (Pt.111) 511 at 518. PER MUHAMMAD, J.C.A.

VICTOR AIMEPOMO OYELEYE OMAGE, J.C.A. (Delivering the Leading Judgment): In this appeal the appellant who is the judgment debtor is dissatisfied with the judgment of Funtua High Court Coram Ibrahim M. Bako in suit No. KTH/FT/6/2000. The appellant filed four grounds of appeal, and formulated four issues which read as follows;

“Whether the learned trial court had jurisdiction to proceed to the hearing of the suit on 31st July, 2000 as it did when same was fixed for mention on the date by the Registrar of the trial court.

(2) Whether the learned trial court had jurisdiction to entertain the suit under the undefended list procedure when no writ was issued and so marked in this suit in compliance with order 22 rule 1 of the High Court Civil Procedure rules of Katsina State.

(3) Whether the learned trial court was right to have disregarded the motion on notice dated 12th August, 2000 duly filed in the trial court in which the first appellant was asking amongst other things for orders setting aside of the proceedings of 31st July, 2000 and for leave to argue the notice of preliminary objection dated 9/6/00 challenging the jurisdiction of the trial court to entertain the suit without first resolving the question of its jurisdiction in the suit.

(4) Whether the judgment in this suit against the 2nd appellant is valid in view of the fact that no writ of summons or other originating processes as the trial court was were served on it without first resolving aforesaid was entered against it.”

Before I reproduce the respondents issue for determination, I wish to comment on issue three of the respondent and to consider whether the said ground three is an innocous as it looks. The said issue three refer to the preliminary objection filed by the appellant as respondent/applicant in the court below. The objection is on an interlocutory issue. It is a preliminary objection seeking to set aside the proceedings in the court below. In the ruling of the court below on 21/9/2000, See pages 18 and 19 of the printed record, the court discountenanced the appellants prayer for failure of the applicant to appear in court to move the motion. Instead the court ruled in favour of the respondent on 21/9/2000. The printed record shows that the notice and the grounds of appeal was filed on 27/9/2000. It is therefore within time to have filed an appeal on the interlocutory order in the event the inclusion of the complaint on the ruling in the appeal is properly filed. I make that observation to set the record straight, as it appears that complaint on the ruling is enbodied is issue 3 of the appellant. The procedure also accords with the procedure recommended by Ekpe JCA in his decision reported in 2002 7 NWLR (pt.765) P.25 that an interlocutory appeal should await the final judgment. In the respondents brief he adopted the issues formulated by the appeal but submitted different reasons for the said issue. Before I state the facts of the case, I am of the view that the case turns only on the issue of non compliance with the rules of the Funtua High Court on undefended list procedure, I quote here the relevant provisions of the rules of order 22, rules 2 & 3of the Katsina High Court Civil Procedure rules on undefended list, which rules are applicable in Funtua.

(2) “There shall be delivered by the plaintiff to the Registrar upon the Issue of the writ of summons as aforesaid as many copies of the above mentioned in the 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.”

3(i) “If the party served with the writ of summons and affidavit as provided in rules 1 & 2″ etc delivers to the Registrar etc the court may give him leave to defend etc.”

It is when the party the defendant is served with a writ of summons and other documents that proceedings in an undefended suit may be said to commence.
The rules under the undefended list are clear in my view that the party to be served the defendant must be served the writ of summons with other documents i. e. affidavit of the applicant showing that respondent has no defence.

(iii) Order of the court placing the writ on the undefended list. It is clear to me that it is the writ of summons which is placed on the undefended list, not the bare order. The order does not commence proceedings without a writ. Besides under the Katsina High Court Civil Procedure which is applicable in Funtua, the form of commencement of action is contained in order 1 of the said rules.

No other method beyond those recording therein may commence a suit in the court of law. It will not matter if the writ of summons is in the courts file it should reserved on the defendant. The facts in this appeal which I now state beneath will show that the suit in this appeal did not commence. Which since the writ of summons was not served. Here are the facts which in this appeal encapstulates the complaints of the appellant. The respondent made an application under the rules of court in order 22 rule of the Civil Procedure Rules Katsina State for the issue of a writ of summons against the appellant hereunder the undefended list procedure.
The court did not issue the writ of summons, instead the court marked the plaintiffs application for the issue of the issue of the writ “undefended.”
No writ of summons was issued or attached to the order served on the defendant.
The court in purported compliance with the rules under order 22, Katsina State Civil Procedure rules attached to the application to issue a writ the affidavit intended to support the writ, showing that the defendant has no defence, and despatched these to the appellant without a writ of summons. I repeat; no writ was issued and served on the appellant. The sum of money being claimed by the respondent is N3,255.678.00. Upon the service of these documents on the appellant, he filed, a notice of objection, the trial court proceeded to adjourn the motion for ruling after hearing the respondents.
Subsequently, on the due date, the court delivered it’s judgment and awarded judgment in favour of the respondent for the sum of three million two hundred and fifty five thousand six hundred and seventy eight naira. The two respondents/defendants filed notice and ground appeal from which they formulated the issues as recorded above. In my view, issue 2 deals with and determines the vital issue in the appeal. It reads;-

“Whether the learned trial court had jurisdiction to entertain the suit under the undefended list procedure when no writ was issued and so marked in this suit in compliance with order 22 rule 1 of the High Court Civil Procedure rule of Kano State.”

In his response to the appellants issue two, the respondent admitted that no writ was issued in the proceedings and listed the processes served on the appellant as follows:

(a) “An application for the issuance of a writ of summons under the undefended list.

(b) The court order placing the suit under the undefended list and to serve the court processes on the appellant out of jurisdiction.

(c) A duly sworn affidavit attached to the application for summons under the undefended list disclosing the claim against the appellant together with several annexures.”

The respondent asked whether the above do not disclose sufficient information to the appellants that the suit initiated against the defendant by the plaintiff shows a valid claim. In the face of the respondent admission that no writ was issued in the proceedings there is no further need to belabour the appeal. The error is admitted. However it is worthwhile to consider the respondents submission. Below is the submission of the respondent in his brief in answer to the question raised above by the appellant on the issues raised. The Respondent submitted that it is true that order 22 rule 1 of Katsina State High Court Civil Procedure rules of 1987 provides that a writ of summons in respect of a matter to be placed under the undefended list must be issued by the trial court. There must exist a writ of summons for him to issue with the order to place the writ on the undefended list for hearing. This is the rule of court and rules of court are meant to be obeyed that is why they are written. In the given case though a writ was filed no writ of summons was issued for service with the affidavit on the respondent.

The respondents submission is a “non a sequitor when he submitted thus “but then there must be a caveat to the effect that obedience (to the rules) cannot or should not be slavish to the point that justice of the case is destroyed or thrown overboard.”

The respondent does not appear to appreciate the enormity and consequences to his claim, of the absence of the writ of summons in the proceedings.
Without a writ of summons or another form of commencement of a suit prescribed by the rules of court served on the defendant there is no claim before the court whatever. In the suit in the court below the application which purported to order the issue of a writ of summons is not a writ of summons because the writ of summons is in the courts file. Nothing therefore was before the court below and no claim exists on which the judgment purported to have been delivered by Ibrahim M. Bako J. of the Funtua High Court on 21/9/2000 exists.
It is a judgment without a claim. At no time was the writ of summons served on the appellant. In my view the alleged proceedings is a nullity.

In this appeal, in the face of the admission by the respondent of the situation of the proceedings in the court below as being wrong in fact and in law, the appeal succeeds and the proceeding before Bako J. is set aside. As there was no judgment delivered by Bako J. being that no proceedings was commenced in the Funtua High Court with a writ of summons between the appellant and respondent there can be no decision made by the court as the so called proceedings was a no decision made by the court as the so called proceedings was a non stater. A non sequitor. The proceedings will not abide. It is a nullity. There is no need to consider the other issue in this appeal, as issue 2 has terminated the so called hearing in the court below. The proceedings on 21st September, 2000 is set aside and the appeal succeeds.
The appeal is allowed. I make no order for costs.

RABIU DANLAMI MUHAMMAD, J.C.A: This is an appeal against the judgment of the Katsina High Court sitting at Funtua. The respondents herein were the plaintiffs at the Court below. They sued the appellants jointly and severally claiming the sum of N3, 255,678.00 being unpaid balance in respect of ginned cotton sold to the appellants sometime in 1997. The suit was commenced under the undefended list. When the appellants were served with the application for summons, the 1st appellant entered a conditional appearance and filed a Notice of Preliminary Objection challenging the jurisdiction of the trial court to entertain the suit. It was stated that the Court lack jurisdiction to entertain the suit in that:-
“I. The said action offends the provision of Order 1, order 5 of the Katsina State High Court (Civil Procedure) Rules in that no writ of summons duly signed by the Registrar of the Katsina State High Court was signed and issued in commencement of the said suit.

2. No originating process either by way of writ of summons or otherwise was issued from the said High Court for service on the Defendants as directed by the order Ex-parte made by the Honourable Court on the 10th day of May, 2000.”

The appellants were not in court to move the Notice of Preliminary Objection. The learned trial judge eventually entered judgment in favour of the respondents. This is what he said in his Ruling:-
“The defendants who have filed a Notice of preliminary objection have also failed to appear and argue their preliminary objection on the date adjourned for hearing of which they were quite aware of and on notice.
Accordingly and on the authorities of the cases of Agueze VS P.A.B LTD and Crown Merchant Bank Vs Leadway Assurance (Supra) I hereby invoke order 22 Rule 4 of the High Court (Civil Procedure) Rules of Katsina State 1987 and enter judgment against the two defendants and in favour of the 1st and 2nd plaintiffs for the sum of Three Million, two hundred and fifty five thousand, six hundred and seventy – eight naira (N3. 256.678).”

The appellants are not happy with this decision. They appealed to this Court. The Notice of appeal contained four grounds of appeal. In accordance with the Rules of the Court brief of arguments were filed and exchanged. The appellants formulated four issues for the determination of the appeal. The respondents in their brief adopted the issues formulated by the appellants. The issues are:-

“1. Whether the learned trial court had jurisdiction to proceed to hearing of this suit on the 31st July, 2000 as it did when same was fixed for mention on that date by the Registrar of the trial court.

2. Whether the learned trial Court had jurisdiction to entertain the suit under the Undefended list Procedure when no writ was issued and so marked in this suit in compliance with Order 22 Rule 1 of the High Court (Civil Procedure) Rules of Katsina State.

3. Whether the learned trial court was right to have disregarded the motion on notice dated the 12th August, 2000 duly filed in the trial court in which the first appellant was asking amongst other things for orders setting aside the Proceedings of 31st day of July, 2000 and for leave to argue the Notice of Preliminary Objection dated 9th day of June, 2000 challenging the jurisdiction of the trial court to entertain the suit without first resolving the question of its jurisdiction in the suit.

4. Whether the judgment in this suit against the 2nd appellant is valid in view of the fact that no writ of summons or other originating processes of the trial court was/were served on it before the judgment aforesaid was entered against it.”

I will first deal with the issue of the writ of summons, because the issuance and service of a writ of summons is sine qua non to the proceedings.

If no writ of summons is issued nor served on a party, the proceedings would be a nullity.It is not in dispute that no writ of summons was issued or served on the appellants. The respondents admitted that much in their brief of argument but their contention is that that since the essence of obtaining and serving a writ of summons is to let the party know that a suit has been commenced against him and in our present case since the appellants were served with the application for the issuance of writ of summons and other court process, they were aware of the suit against them.
By the provision of Order 1 Rule 1 of the Katsina High Court (Civil Procedure) Rules, Civil Proceedings may be begun by writ, originating summons, originating motion or petition and by Order 22 of the said Rules for a matter to be placed under the undefended list, there must be an application to the court for the issuance of a writ of summons, the writ of summons if issued will then be marked “Undefended List.” As could be seen the only way to commence this suit is by a writ of summons. A court is only competent in a matter when all the conditions precedent prior to its assumption of jurisdiction are fullfilled. In Madukolu & Others Vs Nkemdilim (1962) ALL N.L.R. (part 2) 581 Bairamian F. J. stated at page 595 that:-
“A Court is competent when –
(1) it is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and
(2) the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction; and
(3) the case comes before the court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.
Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided: the defect is extrinsic to the adjudication.”

Also in Craig Vs Kanssen (1943) 1 ALL. E.R 108 at 113 Lord Greene M. R. made the following observation:-
“The question we have to deal with is whether the admitted failure to serve the summons upon which the order in this case was based was a mere irregularity, or whether it was something worse, which would give the defendant the right to have the order set aside. In my opinion, it is beyond question that failure to serve process where service of process is required, is a failure which goes to the root of our conception of the proper procedure in litigation. Apart from proper exparte proceedings, the idea that an order can validly be made against a man who has had no notification of any intention to apply for it is one which has never been adopted in England.
To say that an order of that kind is to be treated as a mere irregularity and not something which is affected by a fundamental vice, is an argument which in my opinion, cannot be sustained.”
In SkenconsuIt (Nig) LTD Vs Godwin Sekondy Okey (1981) 1 S.C. 6 at page 25 Nnamani JSC stated in respect of the service of a writ of summons that:-
” …. I think that all the breaches in the instant case of the regulations relating to service and appearance are fundamental defects and go to the question of the competence and the jurisdiction of the court which pronounced the orders sought to be set aside. I may add that even if they were irregularities mere acquiescence of the parties ….. cannot give the court competence or jurisdiction.”
He continued to state at page 27 that:-
“In the instant case the appellants were not properly served in law with the writ of summons. They were neither served with the motions pursuant to which the two orders were made nor were they present or represented by Counsel when the said orders were made. My Lords, I am of the view that on all these grounds ….. the orders ought to be set aside.
It is therefore my opinion that non-issuance and non service of a writ of summons is not a mere irregularity. It is a fundamental vice which vitiates the proceedings. This is because the case was not initiated by due process of law and this deprives the court of jurisdiction.
In the circumstance, the appeal succeeds and is allowed by me. The decision of Ibrahim M. Bako J is set aside. I have read the judgment of my brother Omage JCA. I agree with his reasoning and conclusion. I also abide by all the orders he made in the said judgment.

JOSEPH JEREMIAH UMOREN J.C.A: This an appeal from the High Court of Katsina State holden at Funtua dated 21st September, 2000.
The respondents as plaintiffs in the court below instituted an action against the appellants at the High Court of Katsina State Holden at Funtua. The claim was for N3,255,678.00 being the unpaid balance for ginned cotton the appellant purchased from the respondents.
The suit was commenced on the undefended list by an “application for summons dated 19/4/2000 under the undefended list” claiming inter alia as follows:-

(a) “The sum of Three million, two hundred and seventy eight Naira only. (N3,255,678.00)

(b) Interest on the above sum of the rate of 2% Per Annum from the 1st May, 1999 to the date of judgment.

(d) Cost of filling this suit.”

There was an affidavit of 7 paragraphs setting out the facts relied on by the plaintiffs in instituting the action. Filed on the same day, the 19/4/2000 was a motion ex-parte for the following reliefs, that is to say:-

(1) “Leave of this Honourable court to place this suit under the undefended list.

(2) An order of this Honourable court granting leave to the Applicant to issue and serve the writ of summons and other subsequent court process in respect of this suit on the defendant out of jurisdiction of this Honourable court.

(3) And for such further or other orders as this Honourable court may deem fit to make in the circumstances.”

The motion ex-parte was supported by a six paragraph affidavit.

On 10/5/2000 the learned trial judge heard the ex-parte application and granted same in these terms:-

“All the prayers made in this application are hereby granted as made. That is to say:-

(1) Leave of this court is hereby granted placing the suit under the undefended list.

(2) Leave is also granted to the applicants to serve the writ of summons and other processes on the defendants outside the jurisdiction of this court.”

Court:- “Case adjourned to 12/6/2000 FOR HEARING.”

In compliance with order of the court, the application for summons and the court order placing the suit on the undefended list, were served on the defendants. Pursuant to the service of the court process on the defendants, the appellants entered a conditional appearance through their counsel and also filed a notice of preliminary objection.
On the 12/6/2000, due to industrial action embarked upon by workers, the court did not sit. The Registrar adjourned the case to 31/7/2000, according to the hearing notice served on the parties, “for mention.”
On the 31/7/2000, parties were absent, but the learned trial judge heard the suit on the undefended list and adjourned same for ruling on 21/9/2000. On the said 21/9/2000, the learned trial judge delivered his ruling/judgment and in the following terms:-
“Accordingly and on the authorities of the cases of AGUEZE VS. P.A.B. LTD. and CROWN MERCHANT BANK VS. LEADWAY ASSURANCE (Supra). I hereby invoke order 22 Rule 4 of the High Court (Civil Procedure) Rules of Katsina State 1987 and enter judgment against the two defendants and in favour of the 1st and 2nd plaintiffs for the sum of Three million, two hundred and fifty-five thousand, six hundred and seventy eight Naira (N3,255,678)”.
Dissatisfied with the ruling/judgment, the appellants have appealed to this court on four grounds of appeal which are reproduced hereunder:-

“GROUND ONE
The learned trial judge erred in law when he proceeded to hear the suit as one under the undefended list on Monday the 31st July, 2000 and thereafter adjourned same for judgment.

(a) The suit purports to be one under the undefended list.

(b) Same was originally fixed for 12th June, 2000 for hearing and on which date the court did not sit.

(c) It was thereafter fixed by the registry of court for mention on 31/7/2000 and on which date the high court proceeded to hear same.

GROUND TWO
The learned trial judge erred in law when he heard the matter as one under the undefended list and gave judgment thereon as such.

(a) There was no writ issuing from the registry of the High Court in compliance with order 22 rule 1 of the High Court (Civil Procedure) rules and to which the appellants were to respond/take steps in compliance with the said rules.

GROUND THREE
The learned trial judge erred in law when he refused to hear the 1st appellants motion to suspend delivering its ruling on the 21st September, 2000 and allow the 1st appellant leave to move its notice of preliminary objection which was then pending before it.
(a) The 1st appellants motion dated 12th August, 2000 sought for leave to suspend the ruling of 21st September, 2000 and set aside the entire proceeding, of 31st July, 2000 on which the ruling was predicated as same was obtained by misrepresentation.

(b) The said motion was before the learned trial judge.

GROUND FOUR
The learned trial judge erred in law when he proceeded to hear the claim against the 2nd Appellant and enter judgment against it.

(a) No writ of summons or any other originating processes of court were served on the 2nd Appellant.
(b) The 2nd Appellant was not before the High Court”.

Briefs of arguments were filed and exchanged. The appellants formulated four issues from the four grounds of appeal. He related the 1st issue to ground one, 2nd issue to ground two, 3rd issue to ground three, and 4th issue to ground four. He argued issues 1 and 2 together and 3 and 4 seriatim.
The respondent adopted the issues as formulated by the appellants but argued them seriatim.
The issues as formulated by the appellants are as follows:-

(1) “Whether the learned trial court had jurisdiction to proceed to the hearing of this suit on the 31st July, 2000 as it did when same was fixed for mention on that date by the Registrar of the trial court. (Ground one).

(2) Whether the learned trial court had jurisdiction to entertain the suit under the undefended list procedure when no writ was issued and so marked in this suit in compliance with order 22 Rule 1 of the High Court (Civil Procedure) Rules of Katsina State. (Ground two).

(3) Whether the learned trial court was right to have disregarded the motion on notice dated the 12th August, 2000 duly filed in the trial court in which the first appellant was asking amongst other things for orders setting aside of the proceedings of 31st day of July, 2000 and for leave to argue the Notice of Preliminary Objection dated the 9th day of June, 2000 challenging the jurisdiction of the trial court to entertain the suit without first resolving the question of its jurisdiction in the suit.
(Ground three).

(4) Whether the judgment in this suit against the 2nd Appellant is valid in view of the fact that no writ of summons or other originating processes of the judgment aforesaid was entered against it?
(Ground four).”

The appellants elected to argue issues one and two together.
The learned counsel for the appellants prefaced his arguments by re-stating the purport of order 22 of the Katsina State High Court (Civil Procedure) Rules. He also pointed out that order 22 of the said Katsina State High Court (Civil Procedure) Rules is similar to order 22 of the Kaduna State High Court (Civil Procedure) Rules, hereafter, to be referred to as Civil Procedure Rules or simply High Court rules. For a clear appreciation of the learned counsel’s arguments, I hereunder reproduce paragraphs 5.1 and 5.2 of page two of his brief.

“5.1 Under order 22 Rule one of the Katsina State High Court (Civil Procedure) Rules a decision to place a suit on the undefended list of the Court is always a judicial decision which must emanate from a judicial proceedings and must be taken judicially and judiciously. If the trial court is satisfied that the case should be placed on the undefended list, it shall mark the writ of summons issued “undefended list”.
and endorse it. The writ of summons signed by the judge or the court order in this regard is attached to the writ of summons and then served on the defendant or defendants.

5.2 The provisions of order 22 of the Katsina State High Court (Civil Procedure) Rules are identical with the provisions of order 22 of the Kaduna State High Court (Civil Procedure) Rules of 1987. The provisions of this order which deal with matters to be placed under the undefended list have been adequately interpreted by this Honourable Court in the following cases.

1. CASH AFFAIRS FINANCE LIMITED
2. MIKE OKPERE

VS.

INLAND BANK (NIG) PLC.
(2000) 5 NWLR (Part 658) 568 at 583 Paras D-E, 587, Paras G, Paras H-B Paras C-D, PP.587-588 H-B.

MRS ELIZABETH MALEY

VS.

MR. HABIBULLAH ISAH

(2000) 5 NWLR (Part 658) 651 at 663 at Paras E-F, G-H 664 Para B-D, Pages 664-665 H-F.”

He then went on to relate the present case to the rules as envisaged by him and to bring out the orders of the lower court.
According to the learned counsel for the appellants, leave placing the suit on the undefended list was granted on 10/5/2000. In actual fact no writ of summons was ever issued and so marked by the court. Rather, according to learned counsel, what was served on the appellants was the application for summons made by the respondents to the court of trial for same to be placed under the undefended list, he referred to page 1 of the record.
He contends that under order 22, rule 1 of the Civil procedure rules, a writ of summons in respect of matters to be placed on the undefended list must be issued by the court. He argued further that there is no alternative method of placing a matter under the undefended list under order 22 or a provision of the order dispensing with the issue of a writ of summons. He submits that if a law or rule of procedure prescribes that proceedings in a particular cause of action shall be commenced by one method, a litigant would be wrong to commence the proceedings in respect of that particular cause of action by any other method. Learned counsel relied on NIGERIA CEMENT CO.LTD. VS. NIGERIA RAILWAY CORPORATION (1992)1 NWLR (Pt.220)747. NOIBI VS. FIKOLATI (1987)1 NWLR (Pt.52)619 at 630. Learned Counsel urges the court to hold that the entire suit is incompetent as order 22, rule 1 of the Katsina State Civil Procedure Rules had not been complied within that no writ of summons was issued and served on the appellants in this matter. He reminds the court that rules of court are meant to be obeyed.
He submits further that since no writ of summons was issued and marked accordingly and-signed by the court of trial in violation of order 22, rule 1 of the Civil Procedures Rules of Katsina State, 1987, the suit was not properly before the court in that it was not initiated in accordance with due process. Therefore the trial court was without jurisdiction to entertain the suit.
He relied on SKEN CONSULT NIG. LTD. & ANOR. VS. SEKONDY OKEY (1981)1 S.C.6 at 26. Learned counsel further argued that the condition precedent in this suit was the issuance of a writ of summons after the grant of the motion ex-parte to place the suit on the undefended list. According to learned counsel, the crux of the matter was the non-issuance of a writ of summons which prevented the trial court from exercising its jurisdiction. He cites MADUKOLU VS. NKEMDILIM (1962) ALL NWLR (Pt.2)581 at 589-590.
He urges the court to so hold and set aside the judgment of the trial court.
The Respondents’ learned counsel decided to tackle the issuance of the writ of summons in his 2nd issue. He contended that the essence of obtaining and serving a writ of summons on a party that is sued is to inform him of a suit pending against him, the claim against him, the date for hearing and the court that will hear the case.
In the case, the subject matter of this appeal, the appellants were served with:-

(a) An application for the issuance of a writ of summons on the undefended list.
(b) Court order placing the suit on the undefended list.
(c) A duly sworn affidavit in support of the application for summons on the undefended list disclosing the claim against the appellants together with several exhibits.

The learned counsel identified the real issues for consideration as being whether the court processes appearing at pages 1, 2 and 3 of the record of proceedings do not disclose sufficient information to the appellants that a suit has been filed against them by the plaintiffs, the claim against them, how they were arrived at and the court the suit was to be heard. He contended that by order 22, rule 1 of the Civil Procedure Rules of Katsina State, a writ must be issued in respect of a matter to be placed on the undefended list. This is a rule of court and rules of court are meant to be obeyed.
The learned counsel formulated two posers in an attempt to wriggle out of non-issuance of a writ of summons to commence the action. He argued that although a writ of summons was not issued, all relevant court processes containing all information the appellants required were served on them. He regarded the non-service of the writ as a judicial blunder which will not vitiate the proceedings.
He urged this court to hold that inability to issue a writ of summons, will not vitiate the proceedings, having served all relevant processes on the appellants. Therefore arguments canvassed by the appellants in their Ground two should be discountenanced.
The appellants’ counsel further argued that the case was fixed for hearing. On that day the trial court did not sit due to workers industrial action. The registrar adjourned the case to 31/7/2000 for mention. Appellants counsel was served with a hearing notice to that effect. See page 10A of the Record. On that day i.e 31/7/2000 the learned trial judge heard the case and adjourned for ruling/judgment on 21/9/2000. See page 17 of record.
The learned counsel for the appellants submits that the learned trial judge was in error when he heard and entertained the respondents’ suit on the date the same was fixed for mention especially when the writ of summons was yet to be issued and when both parties were yet to be served with the writ of summons together with the affidavit in support of the respondents’ claim.
In short the learned appellants’ counsel made much water out of the fact that no writ of summons was issued and served on the appellants and also that the learned trial judge heard the suit on a date it was fixed for mention. He cited, OLUBUSOLA STORES VS. STANDARD BANK (1975) ALL NLR 123 at 127 para 3, WEMA BANK NIG. LTD & 2 ORS. VS. S.O. ODULAJA & 4 ORS. (2000) 3 SCNJ 64 at 69 paras 1-9, ORAPOR & ORS. VS. A.G. ANAMBRA STATE & ORS. (1991)6 NWLR (Pt.200) 659, MARIAN OBIM.ONURE VS. OJUKOOLA ERINOSHO & ANOR. (1986) ALL NLR 245 at 247. He urges the court to answer the 1st issue in the affirmative.
The respondent countered that once a suit has been placed on the undefended list, it shall be entered for hearing on the return date. See order 22, rule 1 of the Civil Procedure Rules of Katsina State, 1987. This, according to the learned counsel, was in the court order placing the suit on the undefended list which was served on both parties. There is no rule of court that a suit on the undefended list can be slated for mention on the return date. He urges the court to apply only substantial justice and not rules of technicality. He relied on BEN AGWUEGBO VS. SAM DAN KAKOMA (2000)14 NWLR (Pt.687)268 para A. LAWRENCE OKWEZE VS. EMMANUEL KLIOFOR (2000)14 NWLR (Pt.687)268 para A-B, B-D. Submits that the date for hearing was in compliance with order 22, rule 1 of the Katsina State Civil Procedure Rules and urges the court to discountenance the appellants arguments on this issue.
In my humble opinion two principal issues call for examination in this issue for determination and these are what the counsel canvassed in their arguments and submissions. These are:-
1. That no writ of summons was issued and served on the appellant., And
2. That the suit was heard on 31/7/2000, a date the suit was fixed for mention.
Before I attempt an answer to these posers, I think I should be guided by the provisions of order 22 of the Katsina State Civil Procedure Rules 1987.
Order 22, states inter alia as follows:-
“Whenever application is made to a court for the issue of a writ of summons in respect of a claim to recover a debt or liquidated money demand and such application is supported by an affidavit setting forth the grounds upon which the claim is based and stating that in the deponent’s belief there is no defence thereto, the Court shall, if satisfied that there are good grounds for believing that there is no defence thereto, enter the suit for hearing in what shall be called the ‘Undefended List’, and mark the writ of summons accordingly and enter thereon a date for hearing suitable to the circumstance of the particular case.
r.2 There shall be delivered by the plaintiff to the Registrar upon the issue of the writ of Summons as aforesaid, as many copies of the above mentioned affidavit as there are parties against whom relief is sought, and the Registrar shall annex one such copy to each copy of the writ of summons for service.
r.3(1) If the party served with the writ of summons and affidavit delivers to the Registrar 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.
r.4 Where any defendant neglects to deliver the notice of defence and affidavit prescribed by rule 3(1) or is not given leave to defend by the court, the suit shall be heard as an undefended suit, and judgment given thereon, without calling upon the plaintiff to summon witnesses before the court to prove his case formally.”
I shall attempt to state the chronology of events envisaged by order 22.
Under the undefended list, an application is made to the court for issue of a writ of summons in respect of a claim to recover a debt or liquidated demand. The application is supported by an affidavit which is filed along with the writ and which sets out the grounds of the claim and states that in the deponent’s belief, the defendant has no defence to the action. Once the court is satisfied that there are good grounds for believing that there is no defence thereto, it shall enter the suit under the undefended list and it will be marked accordingly. A copy of the affidavit is served with each copy of the writ. If the defendant is not disputing the claim, he does not need to do anything. In that case on the date fixed for hearing, judgment will be given for the plaintiff without calling evidence in proof of his claim, unless the court in its discretion, in the interest of justice, calls for oral or documentary evidence. Even if the defendant is present in court, he cannot take part in the proceedings at the hearing. U.A.C. (TECHNICAL) LTD. VS. ANGLO CANADIAN CEMENT LTD. (1966) NMLR 1 per Upeazu J. (as he then was). where the defendant who has been served with the writ and the affidavit of the plaintiff, deliver to the Registrar not less than five days before the date 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, then the case shall be entered in the general cause list for hearing. See OLUBUSOLA STORES VS. STANDARD BANK OF NIG. LTD. (1975)4 S.C.51. where the defendant gives a notice of his intention to defend, but his affidavit does not show reasonable grounds of defence, the case will be heard under undefended list. ENDC VS. DURUNNA (1966-7)10 ENLR 201.
I hasten to add that a close look at order 22, rule 1 reveals that under the undefended list, the plaintiff has some hurdles to cross.
1. He makes an application to a court for the issue of a writ of summons for a claim for a debt or liquidated money demand.
2. The application shall be supported by an affidavit setting forth the grounds upon which the claim is based.
3. The affidavit will, in addition, state that in the deponent’s belief, there is no defence thereto.
Under this rule, that is all the plaintiff does to initiate an action on the undefended list. The next step is for the court.
The court if satisfied that there are good grounds for believing that there is no defence thereto, enters the suit for HEARING in what shall be called the “Undefended List” and mark the writ accordingly and enter thereon a date for hearing.
Under rule 2 of order 22, the plaintiff shall deliver to the Registrar upon the issue of the writ of summons as aforesaid, as many copies of the above mentioned affidavit as there are parties against whom relief is sought.
The Registrar shall annex one such copy to each copy of the writ of summons.
Under rule 3(1), a defendant who is served with a writ of summons with an affidavit pursuant to this rule has some bridges to cross.
Firstly, he has to file a notice of intention to defend.
Secondly, he has to file an affidavit along which must disclose a defence on the merits.
Where leave to defend has been granted under this rule, the suit shall be transferred to the General Cause List. The court may order pleadings or proceed to hear the case without further pleadings.
But where any defendant neglects to deliver the notice of intention to defend together with an affidavit pursuant to rule 3(1) i.e. disclosing a defence on the merits or is NOT given leave to defend by the court, the suit shall be heard as undefended suit and judgment given thereon without calling on the plaintiff to summon witnesses before the court to prove his case formally.
I have attempted to summarize the relevant rules of order 22 of Katsina State High Court (Civil Procedure) Rules. Now I shall essay to find answers to the appellants’ and respondents’ arguments as disclosed by this summary of order 22, and the record of appeal.
The first point canvassed by the appellant is that the suit was placed on the undefended list by order of the court below on 10/5/2000. According to the appellant, his grouse is that the case was heard by the trial judge on the date it was adjourned for mention. In his view this was a serious error of law.
The respondents’ counsel, on the other hand, canvassed that it is trite law that once a suit is placed on the undefended list it shall be entered for hearing on the return date. He relied on order 22, rule 1 and the court order placing the suit on the undefended list, which was served on both parties. He contended that there is no rule of procedure that allows a suit placed on the undefended list to be further adjourned for mention.
The two counsel agree that rules of court are meant to be obeyed.
This was the decision of the Supreme Court in SOLANKE VS. SOMEFUN (1974)1 S.C.141 at 150. From this premise, I shall have recourse to order 22, rule 1, to ascertain the purport of the rule and its implication. Rule 1 of order 22 states in part as follows:-
“…The court shall, if satisfied that there are good grounds for believing that there is no defence thereto enter the suit for HEARING in what shall be called the ‘Undefended List’, and mark the writ of summons accordingly and enter thereon a date for HEARING…”
(Bold letters are mine and meant for emphasis). This is part of the provision of rule 1 of order 22.
From the arguments of counsel on both sides and the record of proceedings from the court below, the leave of court placing the suit on the undefended list was granted on the 10/5/2000.
The suit was adjourned to the 12/6/2000 “FOR HEARING.” See page 16 of the Record. It is not on record but from the briefs of parties we are informed that on the 12/6/2000 the court did not sit owing to industrial action by workers. The Registrar adjourned the suit to 31/7/2000 “FOR MENTION.” On 31/7/2000, the court heard the suit on the undefended list and adjourned it to 21/9/2000 for Ruling.
Meanwhile the defendant filed a notice of preliminary objection dated 9/6/2000. This would to my mind, appear to show that the appellants were served with the processes of the court in respect
of the suit on the undefended list. Again, a notice of motion dated 12/8/2000 was filed, still confirming that the appellants were in receipt of all the processes of the court. On 21/9/2000, the trial judge delivered his Ruling/judgment.
I would like to observe here that by filing a notice of preliminary objection dated 9/6/2000, the appellants are admitting by implication that they were served with the processes of the court in respect of this suit. That follows that the appellants, before 12/6/2000, were aware of this suit pending against them for hearing on 12/6/2000. They also were aware of the adjournment to 31/7/2000 of the same case. They made no effort to be present in court. The adjournment of the suit to 31/7/2000 for “mention” was by a Registrar and cannot override the order of the court adjourning the suit for hearing on 12/6/2000. The Registrar cannot sit on appeal over the order of a judge however made.
Moreover the part of rule 1 of order 22 which I reproduced elsewhere in this judgment, makes it mandatory that once a judge is satisfied …he shall “enter the suit for hearing” …
“and enter thereon a date for hearing.” 12/6/2000 was the date entered for hearing and other subsequent adjournments. The learned trial judge after granting the ex-parte application as prayed, adjourned the case “to 12/6/2000 for hearing.” See page 16 of the Record.
Again, I have observed elsewhere in this judgment that by order 22, rule 3(1), a defendant who is served with a writ of summons together with an affidavit pursuant to this rule has some bridges to cross. Firstly he has to file a notice of intention to defend, not to enter an appearance or file a notice of preliminary objection.
Secondly, he has to file an affidavit along which must disclose a defence on the merits. But where a defendant neglects to deliver a notice of intention to defend together with an affidavit pursuant to rule 3(1) ie. disclosing a defence on the merits, or is not given leave to defend by the court, the suit shall be heard as undefended suit and judgment given thereon without calling on the plaintiff to summon witnesses before the court to prove his case formally.
In this appeal the appellants’ counsel neglected to take steps pursuant to the various rules in order 22 to defend the suit, rather he pursued the shaddow and like a drowning man, catches every straw.
The pursuit of an issue of a court hearing a suit adjourned by a Registrar for mention contrary to the order of the court which had earlier adjourned the same suit for hearing is an exercise in futility and a mere academic exercise.
I am afraid I am unable to agree with this contention that there was error by the lower court in hearing the suit which had been placed on the undefended list on a date the Registrar adjourned it for “mention” having regard to the issues considered hereinbefore.
The next complaint of the appellant on these issues 1 and 2 argued together, was that leave was granted to place the suit on the undefended list and it was so done as at page 16 of the record.
But no summons was ever issued and so marked by court of trial.
Rather, according to him, what was served on the appellants was the application made by the respondents to the court of trial for summons on the undefended list to be issued in the matter as can be seen at page 1 of the record. The learned counsel further countended that by virtue of order 22, rule 1 of the Katsina State High Court (Civil Procedure) Rules, 1987, a writ of summons in respect of the matter to be placed on the undefended list must be issued by the trial court. There is no other provision in the Civil Procedure Rules dispensing with the issue of a writ of summons or providing for alternative method of placing a matter on the undefended list. He submits that if a law or rule of procedure prescribes that proceedings in respect of a particular cause of action shall be commenced by one method, a litigant would be wrong to commence the proceedings in respect of that particular cause of action by any other method. See NIGERIA CEMENT CO. LTD. VS. NIGERIA RAILWAY CORPORATION (1992)1 NWLR (Pt.220)747, NOIBI VS. FIKOLATI (1987)1 NWLR (Pt.52)619 at 630. He urges the court to hold that the entire suit was incompetent and not being properly initiated, the trial court had no jurisdiction to entertain it. The condition precedent in this matter, learned counsel contended, was not fulfilled.
To this contention the learned counsel for the respondent replied that the essence of obtaining and serving a writ of summons on a party that is sued is to let him know that a suit has been commenced against him, to inform him of the claim against him and date and court the suit is to be heard. In the case before the court, the appellants were served with the following processes; that is to say:-
(a) Application for the issuance of a writ of summons on the undefended list. See page 1 of record.
(b) Court order placing the suit on the undefended list. See page 16 of record.
(c) An affidavit in support of the application for summons stating therein in paragraph 5 that the defendants have no defence to the action.
The learned counsel for the respondents concedes that it is a rule of law that a writ of summons in respect of a matter to be placed on the undefended list must be issued by the trial court and that rules of court are meant to be obeyed. In this case no writ was issued.
In this case the appellant has urged this court to hold that the court below had no jurisdiction to entertain the suit as no writ was issued and served on the appellant.
I agree with the appellant and from the record of appeal that no writ of summons was ever issued in the suit leading to this appeal.
I agree entirely also with the appellant as to the necessity of observing strictly the provisions of the rules, but in this case, I think, there is a close identity of views; I should look at the arguments, the record and the rules closely. I would say, that until judgment has been arrived at upon the merits, both parties may be considered as standing upon equal footing. The question between them are still open and it is doubtful which of the opposing contentions is correct. Each party has a right to have the dispute determined upon the merit, and courts should do everything to favour the fair trial of the questions between them.
Order 1, rule 1 of the Civil Procedure Rules states inter alia as follows:-
“r. 1. Subject to the provision of any Act, Civil Proceedings MAY be begun by a writ of summons, originating summons, originating motion or petition …”
The word in respect of commencement of action is “MAY”. It connotes possibility, permissiveness and not meant to be mandatory. It is a rule of court and not being mandatory, it is discretionary. This seems to water down the effect of “Shall” used in rule 1 of order 22.
I will bear this in mind as I progress in my consideration of the appeal before me.
In this case, I am unable to find any writ of summons issued anywhere in the record. I have seen in pages 1,2,3 and 4, an application for the issuance of a writ of summons under the undefended list supported by an affidavit, a motion ex-parte for an order of court placing the suit on the undefended list together with a supporting affidavit and at page 16, an order of court placing the suit on the undefended list. I have also found in the original file from the court below, Evidence of payment for the processes as follows:-

(a) Application for summons:
(i) Filling N1,725
(ii) Oath N 20
(iii) Service N 2
(iv) Attach N 5
N1,752
Paid on No. 000782672 of 20/4/2000.
Motion Ex-parte:
(i) Motion N20.00
(ii) Oath N20.00
N40.00
From the foregoing, I am satisfied the writ of summons has been paid for by the respondent. Now whose duty is it to issue summons?
I am of the humble view that the application for a writ is the act of the plaintiff which the law allows him and the issue of a writ is a matter entirely within the control of the Registry of the court.
It appears to me that if the appellants’ contention is correct, then the plaintiff will go further than paying for the processes to issuing out the process; a situation that will no doubt lead to chaos, unforeseen contingencies and traggic consequences. Our rules require the plaintiff to make an application for a writ of summons to the Registrar of the court or other officer empowered to receive such application and pay the relevant filing fees. The job of issuance of a writ or other processes of court is that of the Registry of the court and its staff.
The proper question to ask here is this: Did the plaintiff in the court below do all that is required of him by law to commence an action under the undefended list for the issuance of a writ of summons? If we have recourse to English Rules, all he has to do is to buy the writ of summons and endorse it. In Nigeria under order 22,rule 1 of the Civil Procedure Rules, he has to make an application to the court for the issuance of the writ and placing same on the undefended list and PAY THE NECESSARY FEES. From then on, his responsibility ceases and what is left to be done is a domestic affair of the court and its staff. From the time the plaintiff, in Nigeria, delivers his application to the Registrar (provided it is not an action in which the consent of the court is necessary before the writ is issued), and pays the relevant fees as in this case, it will, in my humble view, be correct to say that an action or a suit has I been commenced.
Whatever delay is occasioned before the issue of the writ or non-issuance of it at all, is a matter not within the power of the plaintiff to control but merely the domestic affair of the court for which the plaintiff cannot be penalised. It certainly would be a matter of grave injustice to a plaintiff who delivers his application to the court for the issuance of a writ of summons and pays the necessary fees and, as in this case, obtains a court order to place same on the undefended list, if he at a later stage, is deemed not to have issued the writ, merely because, for some reason, the Registrar did not issue the writ of summons.
I have, however, seen in the original file from the court of trial, some three copies of a principle for a writ of summons. They were not filled up or signed by any person. These forms should have been filled up and served by the court, but it did not. I am unable to agree that the plaintiff or Respondent in this court be held accountable for the inadvertence or in efficiency of the Registry and its staff. See: Ademola, F.C.J. (as he then was) in ALAWODE VS. SEMOH (1959)4 F.S.C.27.
Even if it is called by another name ie. Error or blunder, the result would be the same, for in OJIKUTU VS. ODEH (1954)14 WACA 640 at 641, Fester-sutton, P. hold as follows:-
“Blunders must take place from time to time, and it is unjust to hold that because a blunder during interlocutory proceedings has been committed, the party blundering must incur the penalty of not having the dispute between him and his adversary determined upon the merits. All such cases may be remedied by payment of costs or the imposition of terms and conditions.”
The appellants were not prejudiced in the court below. It was they who failed to take appropriate steps to enter a notice of intention to defend.
I am afraid, this appeal is bound to fail on these issues one and two.
On issue No.3, the appellant concedes that on service of application for summons on them in the undefended list, he filed a memorandum of appearance on protest and a notice of preliminary objection both of them dated 9/6/2000. On 12/6/2000 when the suit was adjourned for hearing, the court did not sit owing to workers industrial action nation-wide. Later the appellants’ learned counsel was served with hearing notice for 31/7/2000 for mention as shown at page 10A Suffice it to say that I am satisfied that the appellant filed a notice of prelimination dated 9/6/2000. By the hearing notice served on the appellants and respondents, both parties were aware of the pendency of a suit on the 31/7/2000. The appellants have said they were absent from court on the said date when their notice of preliminary objection was pending. The case came up and neither the appellants nor their counsel was in court. The learned trial judge ignored the papers which no one was there to move and proceeded to hear the suit on the undefended list.
I had said earlier that under order 22, rule 3(1), a defendant served with a writ of summons or processes under the undefended list under order 22, has some bridges to cross. firstly he has to file a notice of intention to defend. This must be supported by an affidavit which must disclose a defence on the merits.
Where a defendant neglects to deliver the notice of intention to defend together with an affidavit pursuant to order 22, rule 3(1) ie. disclosing a defence on the merits, or is not given leave to defend by the court, the suit shall be heard as undefended suit and judgment given thereon without calling on the plaintiff to summon witnesses before the court to prove his case formally. This is what, in my respectful view, order 22 requires a defendant to do. I am unable to read into this order 22 of the Civil Procedure Rules a provision which is not mentioned therein either expressly or by necessary implication ie. taking steps other than those provided for by the rules. See: GRAND CEREALS AND OIL MILLS LTD. VS. AS-ABEL INTERNATIONAL MARKETING AND PROCUREMENT LTD. (2000)4 NWLR (Pt.652)310 at 321 F-G., U.A.C. (TECHNICAL) LTD. VS. ANGLO CANADIAN CEMENT LTD. (1966) NMLR. 1 Per Ikpeazu J. (as he then was). U.T.C. VS. PAMOTEI (1989)2 MWLR (Pt.103)244.
The appellants in order to enjoy the discretionary power of the court must bring themselves within the rules. In the decision in SOLANKE VS. SOMEFUN (infra) the Supreme Court stated that Rules of court are meant to be obeyed. They regulate matters in court and help parties to present their cases within a procedure made for the purpose of a fair and quick trial. It is the strict compliance with the rules that makes for quicker administration of justice. Any party seeking the discretionary power of a court must bring his case within the provision of the rules on which he purported to make his application, failing which it is but fair and right that the court should refuse to exercise its discretion in his favour. See also NWOYE VS. NIGERIAN ROAD CONSTRUCTION LTD. & ANOR. (1966) NMLR 254., SAIDU VS. ABDULLAHI (1989)4 NWLR (Pt.116) 387 at 425 paras A-B., ATANDA VS. AJANI (1989)3 NWLR (Pt.111) 511 at 518.
The rules under order 22 of the Civil Procedure Rules of Katsina State lay down what the defendants must do to bring themselves within the discretionary power of the court. They failed to do so. Rather they went to town and raked up application that had the sole purpose of delaying an otherwise speedy trial. Nothing was placed before the trial court to even suggest that the defendants did not owe the sum claimed.
I am of the respectful view that the learned trial judge was right ignoring extraneous matters and going straight to give his decision. There is no dispute as to whether the appellant was not owing the Respondents. It appears to me that from the record and arguments of counsel, the appellants want to use delaying tactics to defeat the ends of justice.
This issue must be resolved in favour of the respondents.
On issue No.4 is a complaint by the appellants that the 2nd Respondent was not served with the processes of the court below.
The Respondents’ answer is that the 2nd respondent was served in accordance with the law or rules of court.
It is on record that the 1st Respondent filed a memorandum of appearance and a notice of preliminary objection all dated 9/6/2000.
See pages 6,7 and 8 of the Record. This is an indication, conclusive of service on 1st appellant of the processes so far in this suit ie. at least the processes commencing this suit.
The claim as at page 1 of the record is against the defendants jointly and severally.
Again the affidavit in support of the application for summons at page 2 of the record paragraph 4(a) states as follows:-
“(A) That the 1st Respondent is the Managing Director and Chief Executive of the 2nd defendant, being a company duly registered under the C.A.M.D. 1990.”
This averment by the Respondents is not denied anywhere by the appellants’ affidavit. It must be taken to be true. It is trite law that a deposition in an affidavit which is not denied must be deemed to be true by the court unless they are obviously false to the knowledge of the court. See: EGBUNA VS. EGBUNA (1989)1 NWLR (Pt.106)773; AGBAJE VS. IBRU SEA FISH LTD. (1972) 5 S.C.501; S.A.L.S. LTD. VS. METABULUM LTD. (1991) 3 NWLR (Pt.179)35.
The rule about service of process of court on corporation or company appears to be order 11, rule 8 of the Katsina State Civil Procedure Rules which state as follows:-
r.8. When the suit is against a corporation or company authorised to sue and be sued in its name or in the name of an officer or trustee, the writ or other documents may be served, subject to the enactment establishing such corporation or company or under which it is registered, as the case may be, by giving the same to any Director, Secretary, or other principal officer, or by leaving it at the office, of the corporation or company.”
In this appeal, the 1st appellant is the Managing Director and Chief Executive of the second appellant and the agent of same. Service on the 1st appellant is good service for both. Moreover the claim being jointly and severally suffices if one of the two is got.
This issue like the last one appears, in my respectful view, to be a repetition of most of the contents of issues one and two already considered and answered.
For the foregoing reasons, I have no difficulty resolving this issue in favour of the respondents.
On the whole I find this appeal unmeritorious and I hereby dismiss it. The judgment of the court below is hereby affirmed.
I award costs of N5,000.00 in favour of the respondents.