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JACKSON AKAN v. JOSEPH JOHNSON ETEM (2019)

JACKSON AKAN v. JOSEPH JOHNSON ETEM

(2019)LCN/13604(CA)

In The Court of Appeal of Nigeria

On Monday, the 1st day of July, 2019

CA/C/152/2016

 

JUSTICES

MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria

YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria

MUHAMMED LAWAL SHUAIBU Justice of The Court of Appeal of Nigeria

Between

JACKSON AKAN Appellant(s)

AND

JOSEPH JOHNSON ETEM Respondent(s)

RATIO

THE RULES GOVERNING THE UNDEFENDED LIST PROCEDURE

The sole issue in this appeal depicts the now so common misunderstanding and misapplication of the rules governing the Undefended List Procedure under our various Rules of Court. In the instant case as in many of such, the Respondent wrongly proceeded under the Undefended List Procedure first to issue a Writ of Summons that is a general Writ of summons against the Respondent and thereafter brought a Motion Ex parte to place the suit under the Undefended List. Both the trial Court and the learned counsel for the Respondent imagined that the affidavit in support of the Motion Ex parte was sufficient even after the Writ of summons had been irregularly issued by ?putting the cart before the horse? to sustain the procedure under Order 11 Rules 8 and 9 of the Akwa Ibom State High Court (Civil Procedure) Rules.
The correct procedure under the Undefended List is to file a Motion Ex parte supported by (i) Affidavit in support of the Application to issue Writ of summons under the Undefended List. It is when this application has been granted by Court that the Registrar would then proceed to issue the Writ of Summons with endorsement that the suit shall be heard under the Undefended List Procedure. It is only after then that the Writ of summons, order of Court and the verifying Affidavit would be served on the Defendant, who by those processes would know from the onset that the suit is to be heard under the Undefended List Procedure. PER OWOADE, J.C.A.

MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision/Ruling of the High Court of Akwa Ibom State sitting in Uyo presided over by Hon. Justice Winifred Effiong and delivered on 10th day of March 2016.

The Respondent as Claimant had given the Defendant Appellant the sum of N15,000.000.00 (Fifteen Million Naira) of which sum the Defendant Appellant has paid back to the Respondent the sum of N1,300,000.00 (One Million, Three Hundred Thousand Naira) leaving a balance sum of N13,700.000.00 (Thirteen Million, Seven Hundred Thousand Naira only).

The Respondent as Claimant took out a Writ of Summons purportedly dated 22/07/2015 on 03/06/2015. Again, by a Motion Ex parte dated 02/06/2015 with an Affidavit in support of the motion Ex parte dated 03/06/2015, the Respondent as Claimant prayed the court Ex parte ?For an Order issuing the Writ of summons in the case as in (Exhibit ABC 4) under the undefended list and to mark the Writ of Summons accordingly?. The said Exhibit ABC 4 attached to the Motion Ex parte is a certified true copy of an endorsed but undated Writ of Summons as

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in Form 1 under Order 3 Rule 3 of the High Court Civil Procedure Rules of Akwa Ibom State between the Claimant Respondent and the Defendant Appellant.

On 22/07/2015, the learned trial Judge ordered as follows on the Claimant?s Respondent?s Motion Ex parte.
1. That the Writ of Summons in this case exhibited as Exhibit ABC 4 be placed under the Undefended List.
2. That the Writ of Summons be marked Undefended.
3. That the Writ of summons so marked, this Court order and other processes be served on the Respondent therein.

On 20/01/2016, the Defendant Appellant filed a Notice of preliminary objection to the Respondent?s suit as well as a Notice of Intention to defend. The Defendant?s Appellant?s objection was to the effect that the suit is incompetent and that the Honourable Court lacked jurisdiction to entertain same on the ground that ?there is no definitive affidavit served on the Defendant?.

The learned trial Judge held the suit to be competent, assumed jurisdiction and found that the Defendant appellant has not disclosed a defence on the merit. Judgment was thereby entered for

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the Claimant Respondent. In his Ruling at pages 15-16 of the record, the learned trial Judge held inter alia:
By the above provisions of the High Court Civil Procedure Rules of Akwa Ibom State, 2009, the affidavit in contemplation is the same affidavit used in obtaining the motion ex parte. The operative words in Order 11 Rule 9 ?as many copies of the above mentioned affidavit.”
By provision of Order 11 of the High Court Civil Procedure Rule 2009, I agree with counsel for the Claimant that there is no provision for affidavit in the High Court Civil Procedure Rule 2009 of Akwa Ibom state and the principle in the case of HASSAN V. OBARO (SIC) OBARA is inapplicable in this case. Based on the above, I hold that this case is competent and that this Court has the jurisdiction to entertain same

Dissatisfied with the decision/Ruling, the Appellant at first filed a Notice of Appeal containing only one ground of appeal in this Court on 17/03/2016. But on 24/06/2016, the Appellant filed an Amended Notice of appeal containing two grounds of Appeal. For clarity of purpose, I reproduce the Appellant?s grounds of

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Appeal and the particulars of error as contained in the Amended Notice of Appeal;
GROUND ONE
ERROR IN LAW
The learned trial Judge erred in law when he assumed jurisdiction to entertain and determine Suit No. HU/UND.140/2015 based on defective and incompetent processes.
PARTICULARS OF ERROR
(a) There was no proper Writ of summons filed for Court consideration before judgment was entered under the Undefended List against the Appellant.
(b) The purported Writ of Summons being an originating process was issued before the Court granted an order to place same on the Undefended List.
(c) There was no definitive affidavit (Evidence on Oath) filed by the Respondent to support his claim under Undefended list.
(d) The trial Court relied on the spent affidavit filed by the Respondent in support of the Ex parte motion to give judgment under Undefended List against the appellant.
(e) The trial Court lacked jurisdiction to have entertained the matter, HU/UND.140/2015 based on defective/incompetent process.
GROUND TWO
?The learned trial Judge erred in law when he aligned himself with the Respondent and

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held that the Supreme Court decision in OBARO V. HASSAN (2013 VOL. 220 LRCN (PT. 1) is inapplicable in the instant case Suit No. HU/UND/140/2015) having been initiated under Akwa Ibom State (Civil Procedure) Rules 2009.
PARTICULARS OF ERROR
(a) The case of OBARO V. HASSAN (2013) VOL. 220 LRCN (PT. 1) is a substantive law by the Supreme Court and binding on the lower Courts.
(b) The Provision of Order 11 Rules 8 and 9 of the Akwa Ibom State (Civil Procedure) Rules, 2009 is in pari materia with Order 21 Rules 1 and 2 of Federal Capital Territory High Court Civil Procedure Rules 2004.
(c) The Rules of Court are not superior to case law.
The relevant briefs of Argument are:
1. Appellant?s brief of Argument dated and filed on 24/06/2016. It is settled by Aniekan Udofia Esq.
2. Respondent?s brief or Argument dated 21/02/2016 and filed on 01/03/2016 but deemed filed on 04/03/2019. It is settled by Aniedi A. Akpan Abotti Esq.
3. Appellant?s Reply brief of Argument dated 20/03/2019 and filed on the same day was deemed filed on 11/04/2019.

?Learned counsel for the Appellant nominated a

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sole issue for determination. It is:
Whether the case was competent having regards to the defective processes filed by the Respondent at the lower Court.

Learned counsel for the Respondent also nominated a sole issue for determination of the appeal. It is:
Assuming but not conceding that the Respondent did not file a definitive affidavit whether same occasioned miscarriage of justice in view of the unambiguous and clear admission of Appellant?s indebtedness to Respondent in Exhibit ABC 2 (Letter Written by Appellant?s Solicitors)?

Learned counsel to the Appellant submitted that the case instituted by the Respondent in the Court below was incompetent in its entirety and therefore rob the trial Court of jurisdiction to hear and determine the suit. He submitted that in a case initiated pursuant to Order 11 Rules 8 and 9 of the Akwa Ibom State (Civil Procedure) Rules 2009 ? the relevant Rules on the ?Undefended List? action, due process of law and fulfillment of condition precedent to the exercise of jurisdiction will include, issuance of a proper Writ of Summons upon the order of Court and filing of a

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?definitive? Affidavit (evidence on oath) verifying the Plaintiff?s cause of action and serving same on the Defendant, (now Appellant).

He submitted that when this is not done or shown to have been done, the case cannot be said to have been initiated by due process of law and a condition precedent could not be said to have been fulfilled to accord the trial Court with jurisdiction to adjudicate on the matter. He referred to the cases of CHIEF S. S. OBARO V. ALHAJI SALE HASSAN (2013) VOL. 220 L.R.C.N (PT. 1) 175; AINA V. JINADU (1992) 4 NWLR (PT. 233) 96 and submitted that the Respondent never filed a definitive/verifying affidavit and the Appellant was not served with any of the aforementioned processes as required by law

He submitted that the Respondent filed ?Motion Ex parte and affidavit in support of the Motion ex parte on 03/06/2015. That the said Motion Ex parte was merely for obtaining an order of the Court to place the suit under the Undefended List. On 22/07/2015, the Respondent moved the Ex parte application which was granted by the Court.”

?Appellant?s counsel outlined the Undefended List

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procedure as stated by the Supreme Court in the case of OBARO V. HASSAN (2013) Vol. 220 LRCN (pt. 1) 175 thus:
1. The Defendant must not only have been served with the required processes, he must also have entered appearance.
2. A claim must have been indorsed on, or attached to the Writ of Summons served on the Defendant.
3. There must be a definitive Affidavit (which is evidence on oath) verifying the cause of action and amount claimed and also that the Defendant has no defence to the action.
4. The Defendant must have filed a defence to the action.

Learned counsel for the appellant submitted that notwithstanding the appellant?s preliminary objection challenging the competence of the suit based on the spent affidavit in support of motion Ex parte, the learned trial Judge still went ahead to hold that the case before him was competent and assumed jurisdiction.

He submitted that the learned trial Judge erred in law when he relied on the provisions of Order 11 Rule 9 of Akwa Ibom State (Civil Procedure) Rules, 2009 to grant the Respondent judgment under the Undefended List. Also, that the learned trial

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Judge fell into serious error which occasioned a miscarriage of justice when he held that:
By the above provisions of the High Court Procedure Rules of Akwa Ibom State, 2009, the affidavit in contemplation is the affidavit used in obtaining the motion Ex parte. The operative words in Order 11 Rule 9 are ?as many copies of the above mentioned affidavit.”

He submitted that the above reasoning by the learned trial Judge is against the decision of the Supreme Court in OBARO V. HASSAN (SUPRA) at page 187. That the affidavit in support of Motion Ex parte application cannot by stretch of imagination be taken to mean or be a ?definitive/verifying Affidavit? as required under the Undefended List Procedure. A separate copy of Affidavit (i.e definitive/verifying affidavit) was required. He referred again to the case of OBARO V. HASSAN (SUPRA) @ 155.

?He submitted that it was after the grant of the application that the Respondent ought to have produced sufficient copies of the definitive affidavit verifying the fact of the Plaintiff cause of action under the Undefended List procedure and annexed same to the Writ of Summons and

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serve on the Appellant in compliance with the Rules. He submitted that the rules of Court give the Registrar a duty to issue the Writ of Summons after the Court must have made an order directing same and not before.

He submitted that in the instant case, the Writ of summons was filed on 03/06/2015 (50 days preceding the Order of the Court). That no new Writ was ever filed thereafter in compliance with the Court order made on 22/07/2015 and before the trial Court entered judgment on the Undefended List procedure. He submitted that where a Registrar issues a Writ in anticipation of an order of Court, such issuance would certainly render the Writ pre-emptive and thus null and void.

He submitted that under the Undefended List procedure, the Registrar cannot issue any Writ before the Court grants the order. It is a judicial function that cannot be delegated to the Registrar. Such a Writ of summons that was issued before the judicial decision to do so, upon consideration of an application becomes incompetent. Therefore, said counsel, a Writ of summons being an originating process not properly initiated cannot cloth the Court with jurisdiction. He

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referred to the cases of NWAKANMA V. IKOT LOCAL GOVERNMENT AUTHORITY (1996) 3 NWLR (PT. 437); MOHAMMED V. OLAWUNMI & ORS (1990) 2 NWLR (133) 458. He added that a Writ of summons cannot be said to have two (2) dates on the face of it. The first date reads 03/06/2015 as per the Registrar?s signature.

On another wicket, Appellant?s counsel submitted that the learned trial Judge in his findings at page 62 of the Records aligned himself with the Respondent to the effect that there is no provision for definitive affidavit in the High court Civil Procedure Rules, 2009 of Akwa Ibom State and that the principles in OBARO V. HASSAN (SUPRA) is inapplicable. He submitted that the case of OBARO V. HASSAN (SUPRA) is applicable in the instant case.

He stated that the case of OBARO V. HASSAN (SUPRA) was initiated under Order 23 Rules 1 and 2 High Court (Civil Procedure) Rules, FCT 1990, now Order 21 Rules 1 and 2 High Court (Civil Procedure) Rules, FCT 2004. That the said provisions are in pari materia with the provisions of Order 11 Rules 8 and 9 of the Akwa Ibom State High Court (Civil Procedure) Rules, 2009.
?
Appellant?s counsel

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reproduced the said Rules in comparison to one another and urge us to hold in favour of the appellant that the case of OBARO V. HASSAN (SUPRA) is applicable to this case, set aside judgment of the Court below and dismiss the case in its entirety.

Learned counsel for the Respondent submitted that the Akwa Ibom State High Court (Civil Procedure) Rules 2009 does not have any word as a ?Definitive Affidavit?. That Appellant?s counsel was only trying to raise an issue of technicality which the Courts will frown upon. On this, he referred to the case of NWOSU V. IMO STATE ENVIRONMENTAL SANITATION AUTHORITY & ORS (1990) 2 NWLR (PT. 135) 668 @ 714. He submitted that the major issue in the instant case is the admission by the appellant through Exhibit ABC 2 dated 09/12/2016 that he is indebted to the Respondent to the tune of N13,700.000.00 (Thirteen Million, Seven Hundred Thousand Naira). He urged us to uphold the decision of the trial Court in the interest of justice and avoid technicalities.
?
The sole issue in this appeal depicts the now so common misunderstanding and misapplication of the rules governing the Undefended List

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Procedure under our various Rules of Court. In the instant case as in many of such, the Respondent wrongly proceeded under the Undefended List Procedure first to issue a Writ of Summons that is a general Writ of summons against the Respondent and thereafter brought a Motion Ex parte to place the suit under the Undefended List. Both the trial Court and the learned counsel for the Respondent imagined that the affidavit in support of the Motion Ex parte was sufficient even after the Writ of summons had been irregularly issued by ?putting the cart before the horse? to sustain the procedure under Order 11 Rules 8 and 9 of the Akwa Ibom State High Court (Civil Procedure) Rules.
The correct procedure under the Undefended List is to file a Motion Ex parte supported by (i) Affidavit in support of the Application to issue Writ of summons under the Undefended List. It is when this application has been granted by Court that the Registrar would then proceed to issue the Writ of Summons with endorsement that the suit shall be heard under the Undefended List Procedure. It is only after then that the Writ of summons, order of Court and the verifying Affidavit

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would be served on the Defendant, who by those processes would know from the onset that the suit is to be heard under the Undefended List Procedure.
A situation as in the instant case where a Writ of Summons was issued on 03/06/2015 before the Court order which was granted on 22/07/2015 is in contravention of the Undefended List Procedure Rules. The argument between the counsel for the appellant and that of the Respondent as to a ?Definitive Affidavit? is unwarranted. In a simpler version Order 11 Rule 8 of the High Court of Civil Procedure Rules of Akwa Ibom State just as Order 23 Rule 1 of the FCT Rules of 1990 considered in the case of OBARO V. HASSAN (SUPRA) and their various counterparts refers to ?application? in two different senses. The first is making an application which expectedly would attract a supporting Affidavit. The second is ?the application? to be 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 provision assumes that there would be an affidavit in

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support of the Ex parte application and went further to refer specifically to an ?affidavit setting forth the grounds upon which the claim is based and stating in the deponent?s belief, there is no defence thereto It is this affidavit specifically referred to in provision as been variously described as ?definitive? ?verifying? or perhaps ?claim based? Affidavit. Clearly, it is different from the normal affidavit in support of any motion or application to a Court in the course of proceeding including a Motion Ex parte contemplated under these provisions.
It is equally not debatable that the decision of the Supreme Court in the case of CHIEF S. S. OBARO V. ALHAJI SALE HASSAN (2013) VOL. 220 LRCN (PT. 1) 175 decided under the provision of Order 23 Rules 1 and 2 of the High Court (Civil Procedure) Rules FCT 1990 is applicable to the provision of Order 11 Rules 8 and 9 of the Akwa Ibom Rules. I hereby reproduce the two provisions to expose their similarities and to confirm as suggested by the learned counsel to the Appellant that the provisions are indeed in pari materia.<br< p=””

</br<

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Order 23 Rules 1 and 2 of FCT Rules provides:
?23- Rule 1. Whenever application is made to Court for the issue of a Writ of Summons in respect of a claim to recover a debt, liquidated money demand or any other claim and the 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, enter the suit for hearing on 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.
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 of such copy to copy of the Writ of Summons for service.”
Order 11 Rules 8 and 9 of Akwa Ibom Rules provides:
?11- Rule 8 Where a Claimant in respect of a claim to recover a debt or liquidated money demand believes that there is no defence to his claim, he shall make an

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application to a Court for the issue of a Writ of Summons in respect of the claim to recover such debt or liquidated money demand and shall support the application by an affidavit setting the grounds upon which the claims is based and stating that in the deponent?s belief there was no defence thereto.
9 There shall be delivered by the claimant 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 who, relief is sought, and the Registrar shall annex on such copy to each copy of the Writ of Summons for service.”
In the instant case, it is clear that the Writ of Summons was improperly issued and in contravention of the procedure laid down for Undefended actions under Order 11 Rules 8 and 9 of the High Court (Civil Procedure) Rules, 2009 of Akwa Ibom State. The validity of originating process in a proceeding before a Court is sine qua non, an indispensable condition necessary for the competence of the suit and indeed proceeding initiated by such processes. See DR. TUNJI BRAITHWAITE V. SKYE BANK PLC (2012) 12 SC (PT. 1) 1.
?

From the above, the

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only issue in this appeal is resolved in favour of the Appellant. This appeal is meritorious and it is allowed. The judgment and orders of Hon. Justice Winifred Effiong in Suit No. HE/UND.140/2015 delivered on 10th day of March 2016 are accordingly set aside. Suit No. HU/UND.140/2015 is hereby struck out.
The parties to this appeal shall bear their respective costs.

YARGATA BYENCHIT NIMPAR, J.C.A.: I previewed the draft of the judgment just delivered by my learned brother, MOJEED ADEKUNLE OWOADE, JCA and I agree completely with the reasoning and resolution of the issue settled for determination, I too allow the appeal and set aside the judgment of the trial Court. I also abide by the other orders made therein.

MUHAMMED LAWAL SHUAIBU, J.C.A.: Having read in draft the lead judgment of my learned brother, Mojeed A. Owoade, JCA, just delivered, I agree with his Lordship that the appeal is meritorious and should be allowed. The correct procedure under the undefended list as enunciated by the apex Court in OBARO V HASSAN (2013) ALL FWLR (pt 687) 677 is that it is only when an application is granted by the

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Court then, the Registrar would proceed to issue the Writ of summons, with endorsement that the suit shall be heard under the undefended list. Thus, filing of the writ of summons shall not predate the application for its issuance, placement and marking as UNDEFENDED LIST. I too allow the appeal and joined my learned brother, Mojeed A. Owoade, JCA in the lead judgment in setting aside suit NO.HU/UND.140/2015.

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Appearances:

ANIEKAN UDOFIA, ESQ.For Appellant(s)

ANIEDI A. AKPAN ABOTTI, ESQ.For Respondent(s)

 

Appearances

ANIEKAN UDOFIA, ESQ.For Appellant

 

AND

ANIEDI A. AKPAN ABOTTI, ESQ.For Respondent