F.O. OGBAEGBE v. FIRST BANK OF NIGERIA PLC.(2005)

F.O. OGBAEGBE v. FIRST BANK OF NIGERIA PLC.

(2005)LCN/1751(CA)

In The Court of Appeal of Nigeria

On Thursday, the 26th day of May, 2005

CA/PH/230/2001

 

JUSTICES

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

PIUS OLAYIWOLA ADEREMI   Justice of The Court of Appeal of Nigeria

MONICA BOLNA’ AN DONGBAN-MENSEM   Justice of The Court of Appeal of Nigeria

Between

 

F.O. OGBAEGBE Appellant(s)

AND

FIRST BANK OF NIGERIA PLC. Respondent(s)

 

DONGBAN-MENSEM, J.C.A. (Delivering the Leading Judgment): The respondent had judgment entered in its favour on the 20th April, 2000, in the Abia State High Court, sitting in Aba Coram Akomas, J. It was a writ marked the “undefended suit”. Although, the appellant filed a notice of intention to defend, the learned trial Judge entered judgment for the respondent/plaintiff on the return date.
The appellant feels aggrieved and contends inter alia, that he was not given a fair hearing by the trial court. The appellant urges us to allow his appeal and strike out the suit on issues one and two on the grounds that:
“a. the suit was incompetent;
b. the learned trial Judge had no jurisdiction to entertain same; and
c. the entire proceedings and the judgment were a nullity.”
Alternatively, the appellant wants the appeal allowed and the suit transferred to the general cause list on the ground that the appellant disclosed a defence on the merit in his affidavit evidence, but the trial court failed to evaluate his evidence.
Upon its five amended grounds of appeal, the appellant formulated three issues for determination, the 3rd being an alternative.
The respondent also formulated three issues which are very similar in contents to those of the appellant. At the hearing of the appeal, each party adopted and relied on their respective brief of argument. This appeal shall be determined on the issues made out by the appellant. Issues two and three are two sides of one coin and shall be considered together.
Issue one:
“In the absence of a formal application for the suit to be placed under the undefended list, has the trial court the jurisdiction to treat the suit under undefended list.”
The learned Counsel for the appellant contends that the suit was incompetent before the trial court for the reason of non-fulfillment of the condition precedent before the institution of the suit. It is the opinion of the learned counsel that Order 23 of the High Court (Civil Procedure) Rules, 1988, Imo State applicable to Abia State makes provisions for the institution of a suit under the “undefended list,” while Order 8 makes provision for the application referred to in Order 23. Non-compliance with these two provisions, submits counsel, renders a matter placed under the “undefended list” and any judgment obtained there from null and void. Counsel cites in support, the following cases:-
1. Maley v. Isah (2000) 5 NWLR (Pt.658) 651;
2. Cash Affairs Finance Ltd. v. Inland Bank (2000) 5 NWLR (Pt. 658) 568;
3. Baba v. Habib (Nig.) Bank Ltd. (2001) 7 NWLR (Pt. 712) 496 at 506 at 506 (H).
4. Saude v. Abdullahi (1989) 4 NWLR (Pt. 116) 387.
5. Provincial Council, Ogun State University v. Makinde (1991) 2 NWLR (Pt. 175) 613 at 618.
6. Sincerity and Trust Multi purpose Cooperative Society Ltd. v. Emmanuel Emenue (2002) 10 NWLR (Pt.776) p. 509 at 520 R 23.
It is to be understood from the submission of the learned Counsel that the requisite application to have the suit placed under the “undefended list” was not made before the suit was heard as an “undefended suit”. Counsel urges us to strike out the suit.
In response, the learned Counsel to the respondent submits that being an originating process, the intended “application” referred to in Order 23 ought to be by means of Form One as stipulated under Order 5 rule 1 of the High Court rules. Counsel opines that the decisions in Maley v. Isah and Cash Affairs V. Inland Bank (supra) were arrived at per incuriam, the attention of the learned Justices not having been drawn to the relevant order 5 rule 1, which deals with originating application as opposed to Order 8 which deals with interlocutory applications. I do not know that it lies in the mouth of a learned Counsel to declare a decision of this court as made per incuriam that should be the province of the Supreme Court and of this court in special circumstances. We shall however, address the merit of the case in terms of the law and the precedent put forward in support of the respective arguments of the parties.
A quick resolution of this issue is a determination of the import, the purpose and intendment of the word “application” as used in Order 23. Order 23 does not define the word application nor does it state the mode of application to be made. For the ease of reference, Order 23 is hereby reproduced:
rule 1:
“Whenever application is made to a court for the issue of a writ of summons in respect of a claim to recover a debt or liquidated money demand and such application is supported by an affidavit setting forth the grounds upon which the claim is based and stating that, in the deponent’s belief, there is no defence thereto, the court shall, if satisfied that there 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 circumstances of the particular case.”
rule 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.”
rule 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 a affidavit disclosing a defence on the merit, the court may give him leave to defend upon such terms as the court may think just”.
The Black’s Law Dictionary 6th edition page 98 defines “application” “as a putting to, placing before, preferring a request or petition to or before a person.”
In every day parlance, “application” means a formal request for something usually in writing (refer Oxford Advanced Learners Dictionary by A.S. Hornby 5th edition, Oxford University Press, 1995, page 48).
By the meaning of application, (supra), it appears the intendment of the provisions of Order 23 and particularly, the use of the word “application” is that a special request must be made first before a writ of summons is placed on the undefended list.
The substratum of that provision is the “application”. Once there is an “application”, however made either by a motion ex parte under Order 8 or by the filling of Form One under Order 5, the legal requirement is fulfilled once an application is made. In the case of Okonofua Vincent Omoijahe v. Uwesu Umoru & 2 Ors. (1999) 5 SCNJ p. 280 at 287, (1999) 8 NWLR (Pt. 614) 178, the Supreme Court held that statutes are construed to promote the general purpose of the legislature. Judges ought not to go by the letter of the statute only, but also by the spirit of the enactment.
Of course one could argue, as does the learned Counsel for the respondent that being an originating process, Order 5 is the appropriate procedure to adopt (refer Kwara Hotels v. Ishola (2002) 9 NWLR (Pt. 773) 604). Indeed, and he could be right. Order 8 deals with interlocutory applications. “Interlocutory” is defined on page 815 of the Black’s Law Dictionary (supra) as “provisional,” “interim”, “temporary”, “not final.” “Something intervening between the commencement and the end of a suit, which decides some points or matter, but is not a final decision of the whole controversy”.

The clear provision of Order 23 refer to the issuance of a writ of summons and what readily comes to mind is an originating process. The filing of an application with an accompanying affidavit is merely a continuation of the processing of the originating process for the purposes of the special procedure under Order 23.
Thus, Order 23 makes provisions for the commencement of a special kind of suit; to be marked the “undefended suit”. To do this, an application has to be made specifically to have the suit placed and marked the “undefended suit”. Such an application must be accompanied by an affidavit “setting forth the grounds upon which the claim is based.”
Herein lies the import of the procedure; the affidavit. It is upon the facts stated in the accompanying affidavit that the Judge, if “satisfied” may enter the suit for hearing in what shall be called the “undefended list”, and the writ of summons shall be accordingly marked. The prerequisite step, the condition precedent under Order 23 is an application accompanied by an affidavit.
Once this step is taken, it is recognized that the plaintiff seeks a hearing under the “undefended list”, because this procedure is peculiar to Order 23 of the High Court (Civil Procedure) Rules (refer per Coker, JSC in Olubusola Stores v. Standard Bank (Nig.) Ltd. (1975) 4 SC 51 at 54. Also, to Ahmed v. Trade Bank (Nig.) Plc. (1997) 10 NWLR (Pt. 524) p. 290 at 297; First Bank Plc v. Khaladu (1993) 9 NWLR (Pt. 315) p. 44 at 57; Nwakama v. Iko Local Government (1996) 3 NWLR Pt. 439 at 732 and Edem v. Cannon Ball Ltd. (1998) 6 NWLR (Pt. 553) p. 298 at 308. Thus, an application, as an application is an application! Whether the application be made under Order 5 or Order 8, provided no party is misled and thereby placed at a disadvantage. The appellant was not misled in this suit. He filled a notice of intention to defend in response to the special procedure under Order 23.

In a court of law and equity, where no specific provision is made for the doing of a thing, any legal procedure which is adopted and produces the same legal effect is acceptable. Order 23 does not state the nature of the application, it merely requires that an application be made supported by an affidavit. Order 23 is a special procedure. By the provisions of Order 8(2)(1) of the High Court application “may” be made by motion. The use of the word “may” implies a leverage, an option, another way. To that effect, the provisions of Order 8(2) (1) are not mandatory.
Indeed, can a step taken to bring a suit within the provisions of Order 23 be described as interlocutory? We had seen earlier in this judgment, that “interlocutory” means an intervening event to a process already in existence. Having a writ marked the “undefended” is infact an originating process, initiating the suit. There is nothing interlocutory about the procedure under Order 23 of the rules.
Barring undue reliance on technicality, I am of the humble opinion that the respondent adequately placed the appellant on notice of the nature of his suit before the High Court. The Supreme Court has in recent times made repeated pronouncements urging judicial officials to look more to substance and the interest of justice rather than legalease.
In the words of the Apex court.
“The days of sticking to technicalities as opposed to substantial justice have gone by. The courts have shifted from undue reliance on technicalities to doing substantial justice between the parties before it” (ref. Yakeen Alabi Odonigi v. Aileru Oyeleke (2001) 6 NWLR (Pt.708) P.12 at 24; Dantata v. Dantata (2002) 4 NWLR (Pt. 756) 144 & Oloshe v Ogunobe (2002) 1 NWLR Pt. 749 p. 611).
By the rules of the court, only a writ taken out under the provisions of Order 23 is accompanied by an affidavit.
Further, the said writ was marked the “undefended suit.” The provisions of Order 23 was thereby complied with and the appellant suffered no disadvantage of any legal value. He promptly filed a notice of intention to defend, again, a procedure peculiar to Order 23.
The learned Counsel for the appellant has harped so much on the issue of jurisdiction. It should be stated clearly that non-compliance with the provisions of the rules is an irregularity which can be waived expressly or by conduct. See Ariori v. Elemo (1983) 1 SCNLR 1.

The affected party must take steps to set aside the irregularity before taking further steps in the proceedings.
Unconditional appearance in the proceedings is taking steps which amounts to a waiver of the irregularity. The appellant not only entered an unconditional appearance, but took a further step of filling a notice of intention to defend.
It is instructive to state here that the notice of intention to defend is supported by an affidavit headed “counter affidavit of Mr. Felix O. Ogbaegbe in defence of suit under “undefended list”. He cannot suddenly wake up at the Court of Appeal and expect the proceedings and judgment in which he fully participated to be set aside for reasons of procedural irregularity. (Refer Kebbe v. Garba A. Maitumbu & 1 Ors. (1999) 5 NWLR (Pt. 601) p. 127 at 131 and Oniah v. Onyia (1989) 1 NWLR (Pt. 99) 514.
The error if any in this suit is not one that has been shown to occasion a miscarriage of justice to the appellant. Having a judgment entered against a party does not per se occasion a miscarriage of justice. Had the appellant been in any way misled in the prosecution of this case, then a miscarriage of justice would have been occasioned. As earlier observed, the appellant was not at all misled. He fully understood the implication of the processes served on him and he responded accordingly without raising any objection. Refer Adeyemo Onifade v. Muslim R. Oyedemi & Ors. (1999) 5 NWLR (Pt.601) p. 54 at 68. He has therefore suffered no injustice.
In the prevailing circumstance, the non-compliance, if any, with Order 8 does not take away the jurisdiction of the court. This issue is resolved in favour of the respondent.
Issue two and three:
“Was the learned trial Judge right, in the procedure adopted by him, when in a ruling on an application for adjournment, he entered judgment against the appellant without giving him opportunity to be heard and did he appraise the affidavit of the defendant?”
The learned Counsel for the appellant submits that the procedure adopted by the learned trial Judge violated the right of the appellant to be heard as guaranteed by section 33(1) 1979 and 36(i) 1999 Constitution of the Federal Republic of Nigeria. What procedure did the learned trial Judge adopt? The learned Counsel refers us to pages 24-27 of the records of this appeal whereat, the learned Counsel; applied for an adjournment which was opposed by the plaintiffs counsel.
The learned trial Judge gave a ruling refusing the application for an adjournment and proceeded to enter judgment for the plaintiff in the terms of its claim before the court.
The learned Counsel asserts that the correct procedure should have been to rule on the adjournment and then call on the parties to present their respective cases. Counsel cites in support, the following cases:-
1. Ilona v. Dei (1971) 1 All NLR 8;
2. Harrods v. Anifalaje (1986) 5 NWLR (Pt. 43) 603;
3. Umarco v. Panalpina (1986) 2 NWLR (Pt.20) 65;
4. Ceekay Traders Ltd. v. General Motors Coy. Ltd. (1992) 2 NWLR (Pt.222) 132 at 156-157;
5. Olumesan v. Ogundepo (1996) 2 NWLR (Pt.433) 628 at 644-645 (H-A);
6. Gukas v. Jos International Breweries Ltd. (1991) 6 NWLR (Pt. 199), 614 at 623;
7. Alhaji Mohammed & Anor. v. Lasisi Olawunmi (1990) 2 NWLR (Pt. 133) 458 at 485;
8. Union Bank of Nigeria Plc v. Ekulo Farms Ltd. & Anor. (2001) 7 NWLR (Pt. 711) 21.
It is the view of the learned Counsel for the respondent, that the trial Judge followed the right procedure. Counsel submits that the hearing envisaged under Order 23 rule 4 involves the evaluation or appraisal of the affidavit evidence filed by the parties, whereupon the court exercises its discretion either to let the defendant to defend the suit or to enter judgment in terms of the claim of the plaintiff. Counsel relies on the dictum of Olataruwa JSC in ACB Ltd. v. Gwagwada (1994) 5 NWLR (Pt. 342) p. 25 at 36, followed and applied by Mohammed, JCA, in Maley v. Isah (2000) 5 NWLR (Pt. 658) p. 651, which goes thus:-
“Once the learned Judge forms the opinion that the affidavit does not disclose a defence on the merit to the action, he is to proceed with the hearing of the suit as an undefended/suit and enter judgment accordingly without affording the defendant or his counsel, even if present in the court any opportunity of being heard.”
Counsel further cites the case of UTC (Nig.) Ltd. v. Pamotei (1989) 2 NWLR (Pt. 103) p.244 as well as C.R.P.D.I. Co. Ltd. v. Obongha (2000) 8 NWLR (Pt. 670) 751 at 762-763, in which the Calabar division of this court, Coram Ekpe, JCA held that:-
“In my considered view, the consideration by the court as to whether or not, there is a reasonable defence or defence on the merit disclosed in the defendant’s affidavit amounts to a hearing …”
See also, per Onu, JCA (as he then was), in Agueze v. Pan African Bank Ltd. (1992) 4 NWLR (Pt.233) p.76 at 88.
The learned Counsel maintains that given the apparent unanimity of case law on the meaning of hearing as envisaged under Order 23 rule 4 of the High Court, rules, the question to ask is:-
Whether the trial court appraised the affidavit of the parties particularly the defence affidavit prior to the implicit refusal of leave to defend and the consequent entry of the judgment. The learned Counsel refers to pages 3-7, 11-15 for the affidavit of the parties, and to pages 24-27 of the records for the judgment of the court. Counsel submits that it is evident from the judgment of the court, that there was an appraisal of the affidavit evidence of the defendant prior to the finding of the trial court that no triable issues were disclosed to warrant a transfer to the general cause list.
It is finally the contention of counsel that the power to grant leave to defend or enter judgment is purely discretional and dependent on the Judge’s objective perception of the defence by the defendant vis-a-vis the claims. Such discretion must of course be exercised judicially and judiciously upon the Judge’s appraisal of the affidavit evidence which cannot be improved upon by the address of counsel. (Refers to Maley v. Isah & C.R.P.D.I. Co. Ltd. v. Obongha (supra).
The simple question in these issues is what constitutes hearing under Order 23 rule 4 of the High Court Rules? To answer this question satisfactorily, we must look at the intendment of the provisions of Order 23 generally. Only judicial precedent will provide the guide.
The learned Counsel for the respondent has competently, in the respondent’s brief, addressed some of the cases in which pronouncements were made as to what constitutes hearing under Order 23. I adopt those cases fully in considering this issue. I shall however, add a few cases in support of my pronouncement.
By the terms of Order 23, matters to be heard are such that no reasonable defence exist to such; the provision is specific:- it must be a “debt” or a “liquidated money demand”.
In the case of Macaulay v. Nal Merchant Bank Ltd. (1990) 4 NWLR (Pt.144) p. 283 the Supreme Court gave a comprehensive judicial elucidation to the provisions of Order 23. In the case of Bernard Agwuneme v. Felix Eze (1990) 3 NWLR 1 (Pt.137) P. 243 at 252-4. the “undefended list” procedure was described as
“… A truncated form of the ordinary civil hearing peculiar to our adversary system where the ordinary hearing is rendered unnecessary due in the main to the absence of an issue to be tried or the quantum of the plaintiff’s claim disputed, to necessitate such a hearing.”
The procedure is designed to expedite the hearing of a suit for a debt or liquidated money demand. Order 23 is designed to ensure a quick dispensation of justice, to prevent sham defences (refer Macaulay v. Nal Merchant Bank Ltd. (supra).
Thus, a mere general denial of the plaintiff’s claim is not sufficient to warrant a defendant being given leave to defend.
For the suit to be marked the “undefended suit,” the plaintiff must take out a writ of summons and swear to an affidavit as to the facts of the case annexing, if any, all relevant documents. The court looks at the depositions in the affidavit to determine prima facie, if the facts deposed to justify the grant of the application to have the suit marked the “undefended suit”.
Once so marked, the writ is served on the defendant who must in turn file a notice of an intention to defend along with an affidavit deposing to facts which must cast a doubt on the mind of the Judge as to why the suit should not be heard as an “undefended suit.”
This procedure affords the defendant an opportunity to state his case in an affidavit, in response to the facts deposed to in the plaintiff’s affidavit. The parties are therefore, placed on a level playing ground, because it is not the intention of the “undefended suit’ procedure to shut out the defendant from contesting the suit. (Refer Fesco Nigeria Ltd. v. Nasco Rice & Cereal Processing Company Ltd. (1998) 11 NWLR (Pt. 573) p. 227.)
However, to entitle a defendant to be granted leave to defend in the ordinary procedure, the affidavit in support of the intention to defend must contain particulars which, if proved, could constitute a defence on the merit. The affidavit must deal specifically with the plaintiff’s claim and must state clearly what the defence is and what facts and documents are relied upon in direct response to the facts and documents produced by the plaintiff.
Only upon the presentation of a defence on the merit is the defendant entitled to have the suit of the plaintiff transferred to the general cause list. A general denial or an averment that some payments were made, but not taken into account is not sufficient. The details and particulars of such payments must be set out. No half-hearted defence is allowed. (Refer: Zahkem International v. Ndu C. Ofoma (2000) 11 NWLR (Pt.679) p.609; Ahmed v. Trade Bank (Nig.) Plc. (1997) 10 NWLR (Pt.524) p. 290.

In the case of African Continental Bank Ltd. v. Alh. Gwagwada (1994) 4 SCNJ (Pt) p. 268 at 277, (1994) 5 NWLR (Pt. 342) 25, the Supreme Court held that the significance of the notice of intention to defend is borne out by the affidavit accompanying the notice.This must depose to grounds for asking to be heard in defence which must not be frivolous, vague or designed to delay the trial. A clear dispute must be disclosed between the parties to necessitate a full trial in the general cause list. When the Judge is satisfied that there is a prima facie defence then leave is granted to defend and pleadings may be ordered (Refer also to Pan Atlantic Shipping & Transport, Agencies Ltd. v. Rhein Mass UND SEE Schiffarsts Kontor GMBH (1997) 3 SCNJ p. 88 at 96, (1997) 3 NWLR (Pt.493) 248.
I have undertaken this litany of cases in an effort to demonstrate that once the affidavits have been exchanged, the requisite for “hearing” under Order 23 has been provided by the parties. What remains is the evaluation and appraisal of these affidavits and the documents annexed there to by the learned trial Judge before a pronouncement is made one way or the other.
The clear implication is that on the return date, there is no room for further filling of materials; affidavit or whatever. The notice of intention to defend is to be filed at least five days before the return date. Again, refer to Olubusola Stores v. Standard Bank Nig Ltd. (supra).
In this particular case, was there a hearing on the return date? The appellant said he was not given a hearing. The records before us however show that there was a hearing at which the learned Counsel for the appellant sought an adjournment (page 24-27 of the records).
The learned Counsel to the respondent opposed the application for an adjournment and asked that judgment, be entered for the respondent/plaintiff. His application was granted in accordance with the provisions of Order 23.
No where in the provisions of Order 23 is the Judge conferred with the powers to grant an adjournment once the notice of intention to defend has been filed.
The procedure is straight forward. Once the writ marked the ‘undefended’ is served on the defendant and he enters a defence, the next stage is judgment if no defence on the merit is depicted.
The hearing is not of witnesses but based on the affidavit filed before the court. It is a summary hearing, it is a special procedure aimed at saving time and cost.

On the return date, the Judge has only two legal functions to perform. First is to determine that the defendant has been served and has entered a defence five days before the return date. Next is to determine if upon the defence filed, the suit should be transferred to the general cause list and the counter part of this is that, if no defence is disclosed, judgment must be entered for the plaintiff. There is no room for an adjournment (refer Ben Thomas Hotels Ltd. v. Sebi Furniture Co. Ltd. (1989) 12 SCNJ p. 171 at 175; (1989) 5 NWLR (Pt.123) 523.
By asking for an adjournment, the learned Counsel for the appellant took a risk. At any rate, there was nothing further the learned Counsel could have added to the affidavit evidence already before the court; he could not have given evidence from the bar to improve on the affidavit evidence already filed. The judgment entered by the learned trial Judge states the reasons for the refusal of the application for an adjournment and the reason for the judgment entered.
Judgment was not entered because the learned Counsel asked for an adjournment. Judgment was entered in the words of the learned trial Judge because (page 26 of records);
“… I have gone through the affidavit accompanying the notice of intention to defend filed in this suit and do not see any triable defence, what the affidavit has tried to show is that there is a pending suit A/100/92 between the defendant (as plaintiff and that plaintiff as defendant the reliefs sought in the said suit are quite different from the relief sought in the instant suit. The subject matter of the instant suit is the recovery of the unsettled balance of credit facility awarded the defendant. In my humble view, the defendant has not disclosed triable defence in his affidavit…”
By the pronouncement in the judgment, it is obvious that the learned trial Judge appraised and evaluated the affidavit filed in support of the notice of intention to defend and found no triable issues deserving of a transfer of the suit to the general cause list.
Being an affidavit evidence, we are in as good a position as the trial court was in evaluating the affidavit evidence of both the plaintiff and the defendant (refer Gabriel Iwuoha & Anor. v. Nigerian Postal Services Ltd. & Anor. (2003) 4 SC (Pt. 11) p. 37 at 54, (2003) 8 NWLR (Pt.822) 308.
There in, Supreme Court held that:-
“where the finding of a trial Judge on a documentary, evidence is perverse, an appellate Judge will easily see the perversion and employ his appellate power to correct it.”
Our duty is to determine whether, upon the affidavit evidence available to it, the court adequately evaluated the facts and arrived at a judicious decision.
It is the case of the appellant that they made out a good case to warrant a transfer of the suit to the general cause list, but that the learned trial Judge failed to make the requisite order. It is the contention of the appellant that the trial Judge failed to properly evaluate the affidavit evidence filed in defence and thereby came to a wrong conclusion to wit: that the appellant had not disclosed any triable defence. Counsel cites the case of General Securities and Finance Co. Ltd. v. Obiekezie (1997) 10 NWLR (Pt. 526) p. 577 at 588 as authority to say that a decision of the Judge as to whether or not to transfer a matter to the general cause list does not depend on the discretion of the trial Judge but on the evaluation of evidence. Also cites the case of Nwokedi v Orakposim (1992) 4 NWLR (Pt.233) p. 120. The learned Counsel has also cited a host of other cases but did not state what point of law such cases propound.
The respondents states that its claim before the trial court was a simple recovery proceedings for the principal debt taken by the appellant and interest elements at agreed rate or in accordance with CBN guidelines. Rather than respond on this issue, the appellant filed an evasive defence citing a suit No. A/100/92, in which the subject matter and principal relief involves the mortgaged properties.
Respondent argues that by the decision in Thor Ltd. v. First City Merchant Bank Ltd. (2000) 4 NWLR (Pt.652) p. 274, a plaintiff has the right to sue for recovery of the loan in preference to an action for the collateral securities (see per Nzeako, JCA).
In his affidavit recorded at pages 11-15 of the records, the appellant, per para 2 and 3 does not entirely deny a relationship with the respondent. In paragraph 3, he deposed in these terms:-
“That it is not certain whether the plaintiff is owing me or I am owing it”.
In its affidavit in support of its claim, the respondent clearly stated its claim and supported same with documents: See annexures to the writ in records. An effective traverse from the appellant should have produced documents to contradict the claim of the respondent. In the case of Adeleke v. Aserifa pg 113-114, the Supreme Court held that a mere denial is not a proper answer to the averments. In the absence of such vital documents, the provisions of section 149(d) of the Evidence Act, Cap. 112, LPN 1990, enure to the respondent. In the circumstance, the learned trial Judge was right in rejecting the said defence of the appellant and there on entering judgment for the respondent. I find no good reason to upset the decision of the trial court.
This entire appeal is hereby dismissed. The judgment of the trial court is accordingly affirmed along with all the consequential orders made therein.
I award a cost of N3,000.00 to the respondent against the appellant.

ADEREMI, J.C.A.: I agree with my learned brother, Dongban Mensem, JCA, whose reasons for judgment, I have had a privilege of a preview that this appeal is unmeritorious.
In amplification of the salient points of law raised in the leading judgment, I wish to add a few words of my own. This, I wish to do mainly in the direction of issue No.1 which reads:-
“In the absence of a formal application for the suit to be placed under the undefended list, has the trial court the jurisdiction to treat the suit under the undefended list.”
This is an all-important issue for if its resolution is in the negative that is the end of the plaintiff/respondent case for now. The plaintiff, who is now the respondent, had in the court below, in a specially endorsed writ of summon which was supported by a 20-paragraph verifying affidavit in support of the claim endorsed claimed the following reliefs:-
“(1) N1,521,347.14 (One million five hundred and twenty-one thousand, three hundred and forty-seven naira, fourteen kobo), being unsettled balance of credit facilities accorded the defendant by the plaintiff at the former’s request covered by deed legal mortgage dated 25/11/86 and registered as No. 16 at page 16 in volume 392.
(2) Interest at the agreed prevailing rate of 28% per annum from January 26, 2000, or at such reviewed rate assessed at 1% per cent, above the rate prescribed by the Central bank of Nigeria guidelines until judgment is delivered.
(3) Interest at the rate of 6% per annum from the date of judgment until full liquidation thereof.”
As I have said supra, the above claims were supported by a 20-paragraph verifying affidavit to which a number of exhibits were attached. Sequel to the service of the said writ of summons and the verifying affidavit on him, the defendant who is the appellant here, filed on the 20th of March, 2000, which he captioned “notice of intention to defend”. Accompanying this process is another process signed by the defendant/appellant which he captioned “counter-affidavit of Mr. Felix O. Ogbaegbe in defence of suit, under ‘undefended list’.
It is clear to me that from the above, the plaintiff/respondent adopted procedures for summary judgment by specially endorsing the writ to claim its reliefs, which is a liquidated sum. The relevant rule of court applicable to summary judgment procedure is Order 10, which enables a plaintiff who has:-
“(a) Specially endorsed his writ of summons in any action except a claim for:
(i) Libel, slander, malicious prosecution, false imprisonment, seduction or breach of promise of marriage.
(ii) A claim based on an allegation of fraud.
(b) Accompanied his writ by a statement of claim.
(c) Filed with the action on affidavit verifying the cause of action and the amount claimed (if any liquidated sum is claimed) and stating that in his belief there is no defence to the action except as to the amount of damages claimed.
(d) Served the defendant with the summons and affidavit and the defendant had entered appearance.”
In practice, the application is always by summons returnable not less than four clear days after service with all the documents prescribed attached to enter summary judgment upon the statement of claim as he may be entered without the necessity of trial. This he can do, where the defendant has entered unconditional appearance to the action. As I have said supra, the defendant/appellant filed a process captioned “notice of intension to defate” on 20th March, 2000, the contents of which are terse and I hereby reproduce them:-
“Take notice that the defendant in the above suit intends to defend the same: and
Further take notice that the grounds of such defence are as highlighted in the counter affidavit accompanying these presents”.
I pause to say that the purpose of the summary judgment procedure like that of the undefended list procedure is generally to ensure that the delay which often brings about a full trial is obviated when from the affidavit in support of the notice of intention to defend triable issues are found wanting. I need further say that the procedure is aimed at preventing sham defence from defeating the right of parties by delay, thus, causing great loss to the plaintiff, who in the exercise of his constitutional right is laying claim to his legitimate entitlement. I now go back to the 27-paragraph counter-affidavit sworn to by the appellant himself. It does not contain a scintilla of deposition, which makes the case of the defendant/appellant one of a defence on the merit. Suffice it to say that a defendant in the circumstances of this case, who intends to obtain the favour of the court to enable him defend, must show an absolute defence on the merit such as to persuade the trial Judge to transfer the case to the general cause list. That is evidently absent here. The appellant has argued that the respondent did not satisfy the provisions of the rules. The answer to the contention of the appellant is in the Supreme Court decision of Sodipo v. Lemminkainen Of. (1986) 1 NWLR (Pt.15) 220. In that case, the respondents who were plaintiffs at the trial court sued the defendant/appellant. The endorsement on the writ of summons states as follows:-
“The plaintiffs’9191 claim against the defendant is for the sum of $1,169.817.41 and ?17,000.00 or their equivalent N760,556.91 being money payable by the defendant to the plaintiffs for money lent by the plaintiffs to the defendant as per particulars ‘9197 (which I do not intend to set out here).
In the alternative, the plaintiffs claim the said $1.164,817.14 and $17,000.00 or there equivalent N760.556, being money payable by the defendant to the plaintiffs for money had and received by the defendant for the use of the plaintiffs. The plaintiff also claim interest on the said sum at the rate of 9% until payment or judgment.”
The defendant entered appearance and subsequently filed a motion seeking for an order to dismiss the claim for want of prosecution. His counsel swore to an affidavit maintaining that the writ filed was not, in law, a specially endorsed writ. The trial Judge having suo motu raised a different question, found against the plaintiff and consequently ruled against him. An appeal was lodged to the Court of Appeal on two grounds; namely, whether the endorsement on the writ filed by the plaintiffs did not meet with the requirements of the rules and second whether the trial Judge could suo motu raise issues not raised by the parties. This court (Court of Appeal) dismissed the appeal. Suffice it to say that on the issue of specially endorsed writ, the court, inter alia, held that the processes filed by the plaintiff met the requirement of the law. Perhaps, I should here say that one noticeable difference between summary judgment procedure and undefended list procedure is that in the case of summary judgment, a plaintiff must file an application for summons for leave to enter final judgment together with a verifying affidavit. But in the undefended list, an application is filed for the case to be put on the list and when granted the case is then fixed for hearing thereby giving the defendant another opportunity of coming to contest the case. See the decision in U.T.C. (Nig.) Ltd. v. Pamotei (1989) 2 NWLR (Pt.103) 244. Going by what I have been saying, I have no hesitation in holding that the processes filed by the respondents in this case met with the requirement of the law.
Let me further say that having not challenged the procedure adopted in bringing the action, at the earliest possible time particularly when filing the counter-affidavit, it is too late in the day to dwell on what smacks of technicality to wanting to challenge what has been waived, if at all anything substantial has been waived. An appearance has been entered. See A.-G., Bendel State v A.-G., Federation (1981) 10 SC 1.
For this little contribution, but most especially for the reasoning contained in the leading judgment, I would also dismiss the appeal. I abide by all the other consequential orders therein made, including the order as to cost.

OMAGE, J.C.A. (Dissenting): In this appeal, the appellant seeks an order to reverse the judgment delivered by Akomas, J. sitting at the High Court Aba in theAbia StateJudicial Division. The judgment was delivered on 20th April, 2000. In it, the learned trial Judge made the following order viz:-
“(1) That the application for adjournment be and is hereby refused.
(2) That judgment be and is hereby ordered for the plaintiff pursuant to Order 23 rule 4 of the lmo State of Nigeria High Court Civil “Proceedings” sic rules, 1988, applicable in Abia State, in the sum of N1,521,347.14.
(3) There shall be interest at the said judgment sum” sic fixed as 18% per annum from 20th January, 2000, to today.
(4) There shall also be an interest of 6% on the judgment sum from the date of this judgment, until the final liquidation of the judgment sum.
(5) Cost follow the event. There shall be cost to the plaintiff which is fixed at N42,000 inclusive out of pocket expenses.”
The judgment followed a writ of summons filed by the respondent to this appeal, who as the plaintiff in the court below filed a writ of summons with an endorsement of the sum of N1,521,347.14. With interest at the agreed prevailing rate of 28% per annum from January, 25, 2000, as at such reviewed rate assessed at one and a half per cent above the rate prescribed by Central Bank of Nigeria guideline until judgment is deli vered; interest at the rate of 6% per annum from the date of judgment until further liquidation thereof. The capital sum –
“Being unsettled balance of credit facilities accorded the defendant by the plaintiff at the formers request covered by a deed of legal mortgage dated 25/11/86 and registered as 16/16/392 Owerri, together with accrued interest charges, as agreed”, written above.
The writ of summons was supported by an affidavit captioned thus-
“Affidavit in support of claim under the undefended list”.
See pages 107 of the printed record.
Upon being served the writ of summons with the affidavit attached, the defendant filed as on page 10 of the record, what he called “a statement of intention to defend “dated 14/3/2000 and filed on 20/3/2000. There is also filed by the defendant, an affidavit of “counter-affidavit of Mr. Felix Ogboegbe in defence of suit under the undefended list. The usual cautionary notice for hearing a suit was served on the defendant that the suit will proceed to hearing, unless the defendant made appearance in court within 8 days.
The writ of summons also warned that the writ is to be served within twelve calendar months, from the date and maybe reviewed thereafter within 6 months.
At the resumed date of hearing on 20th April, 2000, the trial Judge pronounced judgment as recorded above, when the defendant’s counsel asked for an adjournment.
The defendant was dissatisfied with the Judgment of the court, he filed grounds of appeal altogether bound formulated three issues.
The issues are:
“(1) In the absence of a formal application for the suit to be placed under the undefended list, has the trial court the jurisdiction to treat the suit under the undefended list?
(2) Was the learned trial Judge right in the procedure adopted by him when in a ruling on an application for adjournment, he entered judgment against the appellant without giving him opportunity to be heard?
(3) Assuming the first two issues are answered in the negative, was the learned trial Judge justified in not transferring the suit to the general cause list in view of the appellants defence as ascertainable from the affidavit accompanying the notice of intention to defend?
In the respondent’s brief, three issues are formulated. The three issues formulated for determination of the appeal are:
(1) Whether the respondents made a proper application for issues of writ of summons, under the undefended list as envisaged under Order 23, rule 1, Order 5, rule 1 of the Imo State High Court (Civil Procedure) Rules, 1988, applicable in Abia State.”
(2) Whether the learned trial Judge appraised the affidavit of the parties prior to entering judgment, under the undefended list and refusing the appellant application for adjournment.
(3) Whether the appellants disclosed any triable issue a credible defence in the affidavit accompanying the notice of intention to defend”
A consideration of the two sets of issues compels a question thus – was the proceeding in the court below made under the undefended list procedure of Order 23 rules 1-5 of the undefended list procedure as provided in the Civil Procedure Rules of Imo State applicable in Imo State? The answer to the above question in my view encapsulates the essence of and answer to the two sets of issues of the appellants and of the respondents, and I will approach it thus:
To get the answer, it is appropriate to quote the rule. It states in rule 1-rule 1: Whenever application is made to a court for the issue of a writ of summons in respect of a claim to recover a debt or liquidated money demand and such application is supported by an affidavit setting forth the grounds upon which the claim is based and stating that in the deponent’s belief, there is no defence, thereto the court shall if satisfied that there 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 circumstances of the particular case.
rule 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.
rule 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.”
The usual and decided procedure for placing a writ of summons under the undefended list is for the plaintiff, who seeks a relief under Order 23 rule 1 of the civil procedure rules to apply for issue of the writ of summons in the ordinary way; and then apply by a motion ex parte to the court together with an affidavit stating that he has a liquidated money demand from the defendant and that the defendant has no defence to the action upon which reasons he seeks the order or leave of the court to place the writ on the undefended list. See 2002, Safoldeen Edu v. Shell Trustees Nig. Ltd. (2002) 34 WRN 91, (2002) 5 NWLR (Pt.760) 277.
The above procedure is the practical actuation of the opening provisions in Order 23(1), which reads:-
“Whenever application is made to the court for the issue of a writ of summons.”
The second stage, which says –
“The court shall if satisfied that there are good grounds of 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.”
It is after the court has granted the request to place the writ on the undefended list, that the applying counsel may issue the writ to be marked undefended list – in order that the registrar of court may serve on the undefended list. Thus the rule provides:-
“There shall be delivered by the plaintiff to the registrar upon the issue of the writ of summons as aforesaid, etc. The registrar shall annex one such copy to each copy of the writ of summons for service.”
The procedure adopted by the plaintiff in the instant appeal does not follow and comply with the established procedure.
The respondent’s application failed to obtain the leave of court to place the suit on the undefended list; it simply proceeded to issue the writ to which an affidavit is annexed. The respondent’s application is therefore wrong ab initio, and it renders the subsequent proceedings incompetent. The defendant/appellant in the proceedings filed an affidavit of intention to defend the suit, in this, it may be concluded that the defendant/applicant has agreed to the procedure adopted by the plaintiff to which the trial court has complied and compromised; but it remains the law, that parties to a proceedings cannot by non compliance agree to defeat the provisions of the law in this case the civil procedure rules, Charles Eyobe v. Nwankwesi 16 SCNJ 87. The failure therefore of the respondent to comply with the procedure for leave of court to place the writ on the undefended list denies jurisdiction to the court to hear the suit, under the undefended list procedure. Any order made thereon is ineffective and a nullity.
In the event, the respondents claim in the court below is incompetent and should not have proceeded on the undefended list procedure. It seems to me therefore, that on the day fixed for hearing the learned trial court, should have allowed; or refused the defendant’s application for adjournment, but not proceed to deliver judgment immediately after the application for adjournment since evidence in the suit should have been taken. I answer the issue therefore, that the procedure employed by the trial court purporting to be under the undefended list is done in error.
In my opinion, and I so rule the order and judgment made by the court below should be set aside; I set it aside, and the matter transferred to another court within the same jurisdiction for hearing de novo.
Appeal dismissed.

 

Appearances

Chief Dona I. Udogu, Esq. (with him, U. F. Udofu [Mrs.])For Appellant

 

AND

Ben Anachebe, Esq. (with him, U. M. Uduma, Esq.)For Respondent

 

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