MRS. CELINA MONYE V. ALHAJI SULEIMAN ABDULLAHI
(2012)LCN/5582(CA)
In The Court of Appeal of Nigeria
On Monday, the 16th day of July, 2012
CA/J/90/2002
RATIO
COURT: DUTY OF THE COURT IN RELATION TO THE RIGHTS OF THE PARTIES AND ERRORS MADE
It is a well established principle that the duty of the court is to decide the rights of the parties and not to punish them for errors, if any, in the conduct of their case by deciding otherwise than in accordance with their rights. Hence where the defendant has a good defence and is willing and ready to defend the action, it is clearly inequitable to shut him out by technical rules relating to the form in which the defence has been brought. PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
PROCEDURE: HOW SHOULD THE DECISION TO PLACE A CASE ON THE UNDEFENDED LIST BE DONE
Basically, the decision to place a case on the undefended list of the court is essentially a judicial decision which must be taken judicially and judiciously in a judicial proceedings which is capable of being scrutinized from the record of the court by any appellate court in order to determine whether or not that discretion of the trial court was exercised judicially and judiciously in accordance with the rules of the said court. PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
ACTION: EFFECT OF FAILURE TO FULFILL THE CONDITION PRESCRIBED BY A STATUTE ON THE ACTION
The law remains firmly established that where a statute provides for the fulfillment of certain conditions before an action is commenced, failure to fulfill the condition or conditions precedent will render the entire action a nullity. PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
JURISDICTION: EFFECT OF ANY DEFECT IN THE COMPETENCE OF A COURT
This is moreso, because a court is competent when inter alia any condition precedent to the exercise of its jurisdiction has been fulfilled. Any defect in the competence of a court renders the proceedings before it a nullity because a defect in competence is intrinsic and not extrinsic to the adjudication. See Madukolu v. Nkemdilim (1962) 2 SCNLR 341, (1962)1 All NLR 587. PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
JUSTICES
CLARA BATA OGUNBIYI Justice of The Court of Appeal of Nigeria
JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria
MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria
Between
MRS. CELINA MONYE Appellant(s)
AND
ALHAJI SULEIMAN ABDULLAHI Respondent(s)
MASSOUD ABDULRAHMAN OREDOLA, J.C.A. (Delivering the Leading Judgment): This is a double barrel Appeal. There is a main Appeal as well as an interlocutory appeal. The initial or main appeal was filed on 2nd August, 1999. It was lodged against the decision of the Plateau State High Court, delivered by Hon. Justice J. S. Atsi on 30th July, 1999. Upon due application made by the Defendant/Applicant, this Court on 10th July, 2003 extended time within which the applicant is to apply for leave to appeal against the ruling of the Plateau State High Court, delivered on 29th June, 1999 in Suit No. PLD/J/34/99, leave to appeal against the said ruling with the grant of extension of time for the applicant to appeal against the said ruling. This Court further ordered the consolidation of that Notice of Appeal with the Notice of Appeal in Appeal No. CA/J/90/2002.
Now, to how it all began. The Respondent in this appeal was the Plaintiff at the lower Court. On 1st February, 1999 he instituted an action against the Appellant who was then the Defendant, under the Undefended List Procedure, pursuant to Order 23 Rules 1- 5 of the Plateau State High Court (Civil Procedure) Rules, 1987 (hereinafter referred to as the Rules of Court). This was done vide his Writ of Summons which was issued or taken out by his Counsel – David M. Mando Esq. of No. 1A Kashim Ibrahim Street, Jos coupled with his particulars of claim which was addressed to, “The Registrar, High Court of Justice, Jos.” Also, an “Affidavit in support of Claim”, containing 7 paragraphs was filed alongside with the said court processes. The endorsement on the aforesaid Writ of Summons indicates that the Plaintiff/Respondent was claiming the following reliefs:
“THE PLAINTIFF’S CLAIMS
1. The sum of N125, 000.00 (One Hundred and Twenty-Five Thousand Naira) only being rent owed by the defendant to the plaintiff from January, 1995 to May 1999 on the plaintiff’s property at H2 Monedo Street, Jos Plateau State.
2. 10% interest of the judgment seem until final liquidation.” (sic)
It would then be seen that upon being served with the Writ of Summons, particulars of claim together with the affidavit in support of the claim by the Plaintiff/Respondent, the Appellant who was then the Defendant, through her Counsel, filed a Notice of Preliminary Objection to the entire action. The notice has an affidavit in support of the same, sworn to on 23rd March, 1999. The said Notice of Preliminary Objection at page 7 of the record is reproduced below:
“NOTICE OF PRELIMANARY OBJECTION
TAKE NOTICE that at the Hearing of this suit, the Defendant/Objector herein shall raise a preliminary objection to the hearing of same on the ground that this Honourable Court has no jurisdiction to hear this case as presently constituted. (sic)
AND further take Notice that the ground for this objection is that there was no prior application made by the Plaintiff/Respondent for this cause to be placed under the undefended list.
Dated at Jos this 22nd day of March, 1999.”
Thereafter, on 29th June, 1999 the Defendant/Appellant filed what she claimed to be a Notice of Intention to Defend the action as commenced by the Plaintiff/Respondent. The previously filed Notice of Preliminary Objection to the competence of the Plaintiff/Respondent’s suit was heard by the lower Court on 29th June, 1999. The learned trial Judge took addresses/submissions from the learned Counsel for the parties on the preliminary objection. The learned trial Judge in his ruling delivered on the same day, that is 29th June, 1999, dismissed the objection as lacking in substance and upheld the competence of the Plaintiff/Respondent’s suit.
Upon the evinced intention and application by the learned Counsel for the Plaintiff/Respondent who moved for Judgment in the sum claimed, the learned Counsel for the Defendant/Appellant drew the attention of the lower Court to the Notice of Intention to Defend the suit and made submissions in support and respect thereof. He urged the lower Court in conclusion to transfer the matter to the general cause list for hearing on the merit. The learned Counsel for the Plaintiff/Respondent opposed the application and submitted at the lower Court, that the Defendant/Appellant has not complied with the requirements of Order 23 Rule 3 of the lower Court’s Rules of Court on the basis that the Notice of Intention to Defend and affidavit in support, supposedly attempting to disclose a defence on the merit was filed as a single document and not separately. The matter was then adjourned to 30th July, 1999 for ruling/judgment.
On the said next adjournment date, the learned trial Judge adjudged the Defendant/Appellant’s, “Notice of Intention to Defend” as a “valueless and worthless document.” Judgment was thereafter entered for the Plaintiff/Respondent at page 20 of the record as follows:
“The Writ of the Plaintiff supported by an affidavit therefore stands unchallenged, uncontroverted and uncontradicted. The Court therefore enters Judgment for the Plaintiff in the sum of N125, 000.00 being rent due to the Plaintiff from the Defendant for a period covering January, 1995 to May, 1999. The Defendant is also adjudged to pay 10% interest per annum on the said amount with effect from the date of this Judgment until final liquidation of the judgment sum.”
The Defendant/Appellant is hereinafter to be referred to as the Appellant, while the Plaintiff/Respondent is called the Respondent.
In accordance with rules of this Court, briefs of argument were duly filed and exchanged between the Appellant and the Respondent. Both parties further obtained leave of this Court and filed their respective amended briefs of argument. Appellant’s amended brief of argument which was prepared by Leo M. Ebi Esq. was filed on 10th September 2003, while by order of this Court, the Respondent’s amended brief of argument which was prepared by David M. Mando Esq. was deemed properly filed and served on 30th November, 2003.
In the Appellant’s amended brief of argument, four issues or questions were identified for the determination of this appeal. They are:
“(A) Did the lower Court in the determination of the civil rights and obligations of the Defendant/Appellant afford her a fair hearing, as enjoined by law having regards to the material (Affidavit in support of Notice of Intention to Defend) placed before the Court by the Appellant? (Grounds 1 and 3)
(B) Was the lower Court right in law in ignoring the Defendant/Appellant’s duly filed and served Notice of Intention to Defend the suit against him by the Plaintiff/Respondent as “a worthless and valueless document” merely because the said Notice of Intention to Defend was irregular in that it did not comply with the Rules of the Court as to its form? (Ground 2)
(C) In commencing a suit under Order 23 Rule 1 of the Plateau State High Court (Civil Procedure) Rules 1987, is a Plaintiff mandatorily required to comply with the prior requirement for leave of Court to place the suit thereunder or to merely complete form 1 in the appendix to the Rules of Court as required under Order 5 Rule 1 thereof? (Ground 4 and 5)
(D) If the answer to issue/question (c) above is that the fulfillment of the requirement of prior leave of Court is required under Order 23 Rule 1, was the lower Court properly seized with the competence and jurisdiction to hear and determine the Respondent’s cause, the latter not having complied with that requirement? (Ground 5)”
It is to be noted that the aforesaid Respondent’s amended brief of argument, pages 3 and 4 thereof contained a Notice of Preliminary Objection with argument thereon embodied therein. The notice reads:
“TAKE NOTICE that before the hearing of this appeal, the Respondent shall raise a Preliminary Objection to the competence of the entire appeal, and shall contend that the Appellant’s amended brief of Argument dated 10th
September, 2003, filed on same 10th September, 2003, is incompetent, invalid, null and void as same was filed without the necessary leave of this Honourable Court first sought and obtained.
FURTHER TAKE NOTICE that the ground for the making of this objection are as follows:-
That the Appellant’s purported amended Brief of Argument dated 10th September, 2003 and filed on the same 10th September, 2003 is incompetent as the leave of the Honourable Court was not first sought and obtained, as stipulated by Order 3 Rule 2(5) of the Rules of this Honourable Court.”
It is also to be observed that from the Grounds of Appeal filed by the Appellant, the Respondent formulated two issues for determination, namely:
“1. Whether it can be correctly said that the Appellant was not given fair hearing, because the trial Judge found his purported Notice of Intention to Ddefend as worthless and valueless?
3. Whether by the provision of Order 23 Rule 1 of the Rules of the Plateau State High Court (civil procedure) Rules, 1987, leave of Court is necessary to hear and determine a matter on the undefended list?
Let me first of all, dispense with the preliminary objection taken against the hearing of the entire appeal filed by the Respondent. It is significant to note that the Appeal came up for hearing before us on 23rd April, 2012. On the stated date, both the learned Counsel for the Appellant and Respondent were absent, we were satisfied with the proof of service placed before us by the Registrar of the Court.
We thereby proceeded and treated the appeal as having been duly argued by virtue of Order 18 Rule 9 (4) of the Court of Appeal Rules, 2011. See also Bob-Manuel v. Briggs (1995) 7 NWLR (Pt. 409) 537; Odejide v. Fagbo (2004) 8 NWLR (Pt. 874) 1/22; Abana v. Obi (2004) 10 NWLR (Pt. 881) 319/348.
Regarding the Respondent’s preliminary objection to the hearing of the entire appeal, the law is firmly established, that where a preliminary objection is raised in the Respondent’s brief, the objection ought to be argued at the oral hearing of the Appeal. Thus, where a Respondent does not apply or seek leave of Court to move his preliminary objection before the hearing of an appeal, the said preliminary objection automatically becomes redundant and shall be deemed abandoned. See Tiza v. Begha (2005) 15 NWLR (Pt. 949) 616; Onochie v. Odogwu (2006) 6 NWLR (Pt.975) 65. Thus, in line with settled authorities and in the given circumstances of this appeal, I have no hesitation in treating and regarding the Respondent’s objection to the hearing of this appeal as having been abandoned and the same is accordingly discountenanced by me.
Now to the issues. Considering that issues 1 and 2 raised by the Appellant can be conveniently accommodated under issue 1 formulated by the Respondent; while the Appellant’s issues 3 and 4 can be subsumed under issue 2 distilled by the Respondent, I am more inclined to adopt the two issues formulated by the Respondent for the determination of the instant appeal.
ISSUE NO.1
Under this issue, the learned Counsel for the Appellant contended in the main, that the lower Court did not give opportunity for a fair hearing to the Appellant as it was the case with the Respondent, whose claim on the undefended list for the sum of N125, 000.00 being rent due and owed from January, 1995 to May, 1999 on Respondent’s property, situate in Jos against the Appellant was awarded in its entirety, even though the said sum as claimed and by its nature remained unproved. Reference was made to and the Judgment of the learned trial Judge was quoted extensively with the submission that the lower Court, “shut the doors of justice against the Appellant” and failed to give adequate consideration to the Notice of Intention to Defend filed by the Appellant. He added, that the learned trial Judge agreed or conceded that it was such a notice and also stated, “that the affidavit was sworn to before the Commissioner for Oaths.”
It was also his submission in the alternative and without conceding, that if there had been non – compliance with Order 23 Rule 3 (1) of the High Court (Civil Procedure) Rules, 1987 in respect of Appellant’s Notice of Intention to Defend, that it “was at most an irregularity and to which the adverse party could be said to have waived the breach.” He cited the case of Jozebon Industries v. Lauwers Import – Export (1988) All NLR 310/333 where the Supreme Court held as follows:
“…And it is also clear that once a step is taken in the proceedings by a party complaining about the breach of the Rules of Court he is said to have waived the breach.” See also the case CHIEF OKUMA GBAEBOH & ORS. V. OGBOTEMI AKPOTI, (1968) ALL N.L.R. 218.”
It was further submitted by the learned Counsel that the Appellant was prejudiced when she was denied her right to fair hearing by the learned trial Judge who discountenanced the said Appellant’s Notice of Intention to Defend on the mere ground of technicality vis-a-vis practice and applicable procedural regulations. He cited and relied on NIPOL Ltd. v. Bioku Investment Co. Ltd. (1992) 4 NCLR 114; Ifeanyi Nwankwu & Anor. v. Oraegbunam Anieto Esq. (2002) 2 NWLR (Pt. 752) 729; Att. – Gen. Bendel State & ors. V. P.L.A. Aideyan (1989) 4 NWLR (Pt. 118) 646/681; Nigerian Arab Bank Ltd. v. Comex Ltd. (1999) 6 NWLR (Pt.608) 648/663-664; Highgrade Maritime Services Ltd. v. First Bank of (Nig) Ltd. (1991) 1 NWLR (Pt.167) 290/309. Reliance and emphasis was further placed on Aideyan (supra) where the judicial attitude of Courts towards preference of substantial justice to technical justice was reiterated thus:
“In such procedural matters, this Court has moved far away from strict adherence to mere technicalities at the expense of substantial justice. It does not now stand akimbo to watch helplessly in a situation where justice will lie prostrate and trampled down simply because mere technical rules must be upheld.” Per Nnaemeka – Agu, JSC.
On the principle of fair hearing and the dire need to accord equal opportunities to both parties to present and defend their respective standpoints in a matter, the learned Counsel for the Appellant cited and relied on Otakpo v. Sunmonu (1987) 2 NWLR (Pt. 58) 587/605; Ntukidem v. Oko (1986) 5 NWLR (Pt. 45) 909; Adigun v. Att. Gen. Oyo State (1987) 1 NWLR (Pt. 53) 678/719 – 721. It was finally submitted that Courts, “are duty bound to consider and act on all the materials inclusive of the defence placed before it by parties to a Judicial Proceedings, no matter how worthless or valueless they may appear to be.”
We were urged to resolve the issue in favour of the Appellant and allow the Appeal.
On his part and in response, the learned Counsel for the Respondent submitted that the Appellant’s Counsel was allowed or given the opportunity to make submissions and fully argue, “the purported Notice of Intention to Defend the suit.” According to the learned Counsel, this is tantamount to the Appellant being given a fair hearing. He cited and quoted extensively from Ariori v. Elemo (1983) 1 SCNLR 1/28 as an authority and demonstration of what constitutes fair hearing. Additionally, that, since the Appellant’s Counsel went ahead and argued his case after his attention was drawn to the, “purported Notice of Intention to Defend”, and non-compliance with Order 23 Rule 3(1) of the rules of court, coupled with the fact that instead of withdrawing the same, that he went ahead and as such, the Appellant’s Counsel cannot be heard thereafter to complain that she was not given “leave to defend the suit” which was something “she never asked for.”
Learned Counsel for the Respondent further submitted that the learned trial Judge was right when he found the Appellant’s purported Notice of Intention to Defend, to “be worthless and valueless” for non-compliance with Order 23 Rules 3(1) and 4 of the High Court (Civil Procedure) Rules, 1987. Additionally, that the said process did “not raise any defence on the merit”‘ The case of Maja v. Samouris (2002) 4 SCM 109/121 – 122 was cited with the submission that rules of courts must be obeyed.
Finally, it was his submission that while the procedural provision of Order 23 Rule 4 of the High Court Rules (supra) is mandatory with regard to judgment being given in favour of the party who sued, that Order 23 Rule 3 (1) thereof which deals with leave to comply in the event of default and non-compliance is not automatic. Furthermore, that in the event of non-compliance, the exercise of discretion in respect thereof must be judicial and judicious.
Courts of law have long moved away from the domain or terrain of doing technical justice to doing substantial justice. This is because technical justice, in reality is not justice but a pretentious caricature. It is justice with a question mark and not justice which is synonymous with the principles of equity and fair play.
Caricatures by whatever template are not the best presentations or representations of the real entity. Substantial justice, which is actual and concrete justice, is justice personified and glorified. It is encased in the elbows of cordial and fair jurisprudence with a human face and understanding. It is excellent to follow in our law and it pays to follow it as it brings invaluable dividends in any legal system anchored or predicated on the rule of law which is the life blood of democracy. See State v. Gwonto (1983) 1 SCNLR 142; Union Bank of Nigeria Plc. v. Ikwen (2000) 3 NWLR (Pt. 648) 223) Sha v. Kwan (2000) 8 NWLR (Pt. 670) 685; Adebayo v. Okonkwo (2002) 8 NWLR (pt. 768) 1; Asims (Nig) Limited v. Lower Benue River Basin (2002) 8 NWLR (Pt. 769) 349; Afro-Continental (Nigeria) Ltd. v. Co. Operative Association of Professionals Inc. (2003) 5 NWLR (Pt. 813) 303. Thus, for quite sometime now, Courts have gravitated from the regime of doing technical justice to the arena of doing substantial justice. This is in tandem with the jurisprudence of the wider world and its universal legal system. Indeed, the need for Courts of law to do substantial justice becomes more imperative when deep consideration is given to the provision of the Constitution, which is the fons et origo of our democracy. See Inakoju v. Adeleke (Ladoja’s case) (2007) 4 NWLR (Pt. 1025) 423.
It is a well established principle that the duty of the court is to decide the rights of the parties and not to punish them for errors, if any, in the conduct of their case by deciding otherwise than in accordance with their rights. Hence where the defendant has a good defence and is willing and ready to defend the action, it is clearly inequitable to shut him out by technical rules relating to the form in which the defence has been brought.
Definitely, the rules are designed to assist the parties in putting forward their cases before the Court. They are not intended to deny parties of the opportunity of presenting their case and thereby resulting in gross or brazen miscarriage of justice.
A demand for rent presupposes that the rent was due and when it became due must be duly stated without prevarication. In the instant case, two different periods were mentioned in this regard. Again, going by the printed record, there was no return date for hearing in the instant matter. Additionally, questions to be asked and answers provided include; when was the writ marked as having been placed on the undefended list and thereafter served on the appellant. Again, when was the return date was entered therein to the effect that the suit entered on the undefended list, has been fixed for hearing. These among other requirements will enable the court to determine whether the notice of intention to defend with an affidavit disclosing a defence on the merit has been filed within the stipulated period of five days before the date for hearing stipulated by the rules of court.
At all times, technicality should not be allowed to overshadow the pristine requirement to do justice and for the same to be manifestly seen as having been done. There should be meticulous but not slavish adherence to or application of rubs of court. Where a defendant in an undefended list procedure takes an improper or insufficient step, such as merely filing a notice not supported by an affidavit, he may get an adjournment to give him a chance to take the proper step to enable the court consider his notice of intention to defend. See John Holt Ltd. v. Fajemirokun (1961) All N.L.R. 492.
It was contended in the main by the learned Counsel for the Appellant, that the trial Court’s judgment was entered in clear disregarded to the provisions of the applicable rules of the Court dealing with actions commenced under the Undefended List Procedure. Expectedly, the learned Counsel for the Respondent argued the reverse of this standpoint. Very well, the Undefended List Procedure is a special one. It is a specie of summary judgment and requires that certain specifically stated conditions are to be met and strictly too.
Rules of court are meant to be obeyed. Needless to say, that was why they were made in the first instance. Hence, there should be no argument whatsoever on that score. Howbeit, there is an important qualification or caveat and it is that their obedience cannot or should not be slavish to the point that justice in the case is abandoned, jettisoned or thrown over board. Thus, the basic parameter, in so far as the public is concerned is whether at the end of the litigation process, even handed justice has been done and manifestly too, to the parties with the provision of a level playing ground amongst others. We have been reminded and repeatedly too, that:
“Rules of procedure are made for the convenience and orderly hearing of cases in Court. They are made to help the cause of justice and not to defeat justice. The rules are therefore aids to the Court and not masters of the Court. For Courts to read rules in the absolute without recourse to the justice of the cause, to any mind, will be making the Courts slavish to the Rules. This certainly is not the raison de’etre of Rules of the Court.” Per Belgore, JSC (as he then was) in UTC (Nig.) Ltd. v. Pamotei & ors. (1989) 2 NWLR (Pt. 103) 244/296.
This issue is accordingly resolved against the Respondent.
ISSUE NO. 2
In arguing this issue, learned Counsel for the Appellant commenced and rehashed the procedural requirements with regard to marking/Placement of a suit under the Undefended List Procedure, which includes the application which expectedly should be by way of motion ex-parte, marking and fixing/assigning a return date which shall be regarded as the hearing date. That, in the instant case, the Respondent’s claim against the Appellant is rooted under the Undefended List Procedure, regulated by Order 23 Rule 1 of the Plateau State High Court (Civil Procedure) Rules, 1987 and not Order 5 Rule 1 thereof which in its content, scope and requirement is different and distinct from Order 23 Rule 1 (supra).
In this regard, learned Appellant’s Counsel strenuously pointed out that the literal rule of interpretation should be adhered to in the construction of applicable rules of Court in this matter. He cited Unilife Dev. Co. Ltd. v. Kolu Adeshigbin & Ors. (2001) 4 NWLR (Pt. 704) 609/641. Also, that the issue or question of obtaining prior leave of court before the placement/marking of a writ under the Undefended List Procedure is a fundamental condition precedent to the hearing of a cause or matter which has been commenced pursuant to Order 23 Rule 1 (supra). He cited the case of Alhaji Umaru Mohammed v. Habib Nigeria Bank Ltd. (2001) 7 NWLR (Pt.712) 496/507 with the submission that in the instant case, that the suit brought by the Respondent in the lower Court was not properly brought under the applicable rules of court. He added, that “when it is shown that a plaintiff in purportedly commencing a cause or matter under the undefended List failed, refused, and/or neglect to obtain the requisite leave, the suit is incompetent and the court invariably has no jurisdiction to hear such a matter let alone determining its merits or otherwise” He referred to the unreported decision of this Court in African Continental Bank Plc. v. G.C. Emedo Appeal No. CA/J/63/99 delivered on 22nd May, 2002, now reported as A.C.B. Plc. v. Emedo (2003) 10 NWLR (Pt. 828) 244/268 where it was conclusively held thus:
“…that the Plateau State High Court was absolutely wrong to have heard the case under the undefended list procedure without due compliance with the mandatory requirements of Order 23 of the Rules of that court.” per Mangaji, JCA (of blessed memory).
A host of cases which include the locus classicus case of Madukolu v. Nkemdilim (1962) 1 SCNLR 234 were cited by learned Counsel for the Appellant on the point of law that a Court lacks jurisdiction to hear and determine a matter when any condition precedent to the exercise of its jurisdiction has not been fulfilled. We were urged in conclusion to resolve this issue in favour of the Appellant and strike out the Respondent’s suit on the ground that the trial Court lacks jurisdiction to entertain, talk less of determining such a suit.
The learned Counsel for the Respondent contended in essence on this issue, that seeking and obtaining prior leave of court is not necessary in order for the writ to be marked, entered, heard and determined as a matter on the undefended list procedure. He argued that under the applicable rules of court, and unlike what obtains in other jurisdictions, that in this jurisdiction, “it is the presiding Judge that issues the writ.” According to the learned respondent’s counsel, the cases in this regard, cited and relied upon by the learned counsel for the appellant are distinguishable and thus inapplicable.
It was further submitted by the learned respondent’s counsel that the filing of Form 1 as contained in the appendix to the rules of court suffices in this regard. He stated in conclusion that, “rules of court are rules of procedure and they do not themselves and of themselves alone confer jurisdiction. They merely regulate the exercise of jurisdiction conferred on the court.” He cited the case of Clement & Anor. V. Iwuanyanwu & Anor. (1989) 3 NWLR (Pt. 107) 39/50 in aid of this submission. He also stated, that rules of court are meant to be obeyed. Hence, since the appellant failed to comply with the requirement of Order 23 Rule 3 with regard to filing of notice of intention to defend, with an affidavit in support, that such a failure and the trial court’s ruling thereon, cannot be regarded as a denial of fair hearing.
The salient questions now begging for answers simply include; whether as submitted by the learned counsel for the respondent, that under the applicable rules of the trial court, “leave of court is not necessary to hear and determine a matter on the undefended list.” Furthermore, that under the applicable rules of the trial court, “it is the presiding Judge that issues the writ unlike in other jurisdictions where writs are issued by the Registrars” and that, “there is nowhere in the Rules where it is provided for leave to be obtained before the writ is entered for hearing or marked as undefended list.”
My short answers in this instance are also simple and straightforward. They are to the effect that the mere submission of the application to the trial court’s Judge through the Registrar of the court, is inadequate and improper as a form or means of compliance with the mandatory requirements of Order 23 Rule 1 (supra).
It is thus my firm viewpoint, that the requirement for the placement of an application to a court for the issuance of a writ of summons in instances such as in the instant case, that is, to place or enter the suit “for hearing in what shall be called the “Undefended List”; such an application must be made by way of a motion ex-parte supported by an affidavit in strict compliance with the requisite rules of the lower court and not otherwise.
In Maley v. Isah (2000) 5 NWLR (Pt. 658) 651 at 664. This court construed Order 22 Rule 1 of the Kaduna State High Court (civil procedure) Rules, 1987, which is in pari materia with Order 23 Rule 1 of the Plateau State High Court (Civil Procedure) Rules, 1987. It was eloquently, lucidly and succinctly stated thus:
“Indeed a close examination of Order 22 Rule 1 reveals quite plainly that the decision to place a case on the daunting undefended list of the court is essentially a judicial decision which must be taken judicially and judiciously in a judicial proceeding which is capable of being scrutinised from the record of the court by any appellate court in order to determine whether or not that discretion of the trial court was exercised judicially and judiciously in accordance with the Rules of the court.” per Mohammed, JCA (as he then was)
It is significant to note that it was previously held by the Supreme Court in Olubusola Stores v. standard Bank Nig. Ltd. (1975) 4 SC 51/56 – 57, (1975) 1 All NLR 123/127 that:
“The provision dealing with actions on the undefended list are apparently technical and we think that they are purposely created in that way in order to ensure that by asking the plaintiff to comply strictly with those Rules injustice is being avoided to a defendant whose freedom to defend the case has been rather restricted. The provisions of the Rules are designed as they are in order to ensure the safeguards which must necessarily be available to a defendant if the Rules are followed strictly; and if those Rules are complied with, the defendant need suffer no prejudice in his defence if he himself and on his part has complied with the Rules.”
Going by the provisions of Order 23 of the High Court of Plateau State (Civil Procedure) Rules, 1987 entry of a suit in the undefended list is not automatic. There is certain conditions precedent to be complied with and the court must be satisfied that there are good grounds for believing that there is no defence to the claim before entering the suit in the first instance in the undefended list. The requirements of the Rules are clear and unambiguous. Consequently, before a suit could be marked or placed in the undefended list, the claim must be a debtor liquidated money demand and there must be an application to the court supported by an affidavit setting forth the grounds upon which the claim is based.
In this vein and from the wordings of the Order 23 of the High Court of Plateau State (Civil Procedure) Rules, 1987 the application envisaged therein is the normal application made in a judicial proceeding in accordance with the rules. Thus, the combined effect of the relevant and applicable rules of court is that, where a party desires that he should be issued with a Writ of Summons under the undefended list, the application must be made by an ex-parte motion supported with an affidavit setting forth the grounds for the belief that there is no defence to the claim.
Indeed, the very fact that it is clearly stated in Rule 1 of the said Order 23 that such an application must be supported by an affidavit setting forth inter alia the grounds upon which the claim is based, shows quite clearly that the application has to be by way of a motion. See Maley v. Isah (supra), Cash Affairs Finance Ltd v. Inland Bank (Nig.) Plc. (2000) 5 NWLR (Pt. 658) 568. It is a settled principle of construction of statutes that the legislature does not use any word in vain. Where as in the instant case, the application to place a suit under the undefended list was not made by a motion supported by an affidavit, such cannot be said to have complied with the requirements of Order 23 Rule 1 of the High Court of Plateau State (Civil Procedure) Rules, 1987 regulating the procedure for placing a suit under the undefended list.
Basically, the decision to place a case on the undefended list of the court is essentially a judicial decision which must be taken judicially and judiciously in a judicial proceedings which is capable of being scrutinized from the record of the court by any appellate court in order to determine whether or not that discretion of the trial court was exercised judicially and judiciously in accordance with the rules of the said court. In the instant case, there is nothing can be gleaned from the record of proceedings to show how the discretion of the trial court was exercised or the materials used to place the case under the undefended list.
The law remains firmly established that where a statute provides for the fulfillment of certain conditions before an action is commenced, failure to fulfill the condition or conditions precedent will render the entire action a nullity.
In the instant case, the contentions of the respondent that since the appellant had filed a purported notice of intention to defend and taken step in the proceedings; she has waived the issue of non – compliance with the rules and submitted to the jurisdiction of the court and that even if there was a procedural defect in the proceedings before the trial court, the defect should be regarded as mere irregularity and not an issue that goes to the jurisdiction of the court, are misconceived and unsustainable. See Saude v. Abdullahi (1989) 4 NWLR (Pt.116) 387.
This is moreso, because a court is competent when inter alia any condition precedent to the exercise of its jurisdiction has been fulfilled. Any defect in the competence of a court renders the proceedings before it a nullity because a defect in competence is intrinsic and not extrinsic to the adjudication. See Madukolu v. Nkemdilim (1962) 2 SCNLR 341, (1962)1 All NLR 587.
Consequently, where there is non – compliance with a stipulated pre – condition for setting the legal process in motion, any suit instituted in non – compliance or contravention of the condition is in competent and the court is also incompetent to entertain the suit. See Provisional council, Ogun State University v. Makinde (1991) 2 NWLR (Pt. 175) 613 at 618. It stands to reason to expect that the way and manner in which the discretion was exercised must be readily ascertained. It should not be an administrative, but patently judicial and judicious one. Thus, the contrary contention by the learned counsel for the respondent in his bid to justify or wish away the manner in which the instant action was commenced and that the same does not affect both the competence of the action and the jurisdictional competence of the court to entertain and determine the same, does not and cannot hold any legal water at all. Again, in the instant case it is not a saving grace or soothing balm, that the seemingly irregularly filed notice of intention to defend by the appellant herein, was seriously challenged by the respondent and randomly rejected by the trial court.
It is therefore my firm viewpoint that the provisions of Order 23 Rule 1 of the Plateau State High Court (Civil Procedure) Rules, 1987 have not been complied with in the given circumstances of the instant appeal. The conditions precedent before a suit could be placed under the undefended list has not been satisfied. Thus, the suit is incompetent and the court is equally incompetent to entertain it. The trial is therefore a nullity.
The law is trite that in a situation where the trial court has no jurisdiction to entertain the suit, the correct order to make is to strike out the suit so as to afford the plaintiff another opportunity of coming properly with a fresh action before the trial court. See Anigboro v. Sea Trucks (Nig.) Ltd. (1995) 6 NWLR (pt. 399) 35; Gombe v. P.W. (Nig.) Ltd. (1995) 6 NWLR (Pt.402) 402.
It is rather unfortunate, that delayed justice is as equally untoward and unconscionable as hurried justice. Hence, while justice delayed is tantamount to justice denied; similarly, hurried justice is harried justice. Both are to be avoided in the pursuit of justice. In the instant case, there was clearly no required advertence to the relevant and applicable provisions of relevant rules of court which squarely pertain to this matter. The two issues adopted by me for the determination of this appeal are resoundingly resolved in favour of the Appellant. In the premise, this appeal must per force succeed and it accordingly succeeds. The ruling of the Plateau State High Court, Jos in Suit No. PLD /J/34/99 delivered on 29th June, 1999 and the judgment subsequently delivered in respect thereof on 30th July, 1999 including the order in respect of costs are hereby set aside by me. In this vein, the respondent’s suit is hereby struck out, having been commenced in flagrant disregard to the mandatory provisions of Order 23 Rule 1 of the Plateau State High Court (Civil Procedure) Rules, 1987. No order as to costs.
CLARA BATA OGUNBIYI, J.C.A. (as she then was) presided at the hearing of this appeal on the 23rd April, 2012 and participated in the conference held thereafter. However, she was subsequently elevated, appointed and sworn in as an Honourable Justice of the Supreme Court on the 13th day of July, 2012.
JUMMAI HANNATU SANKEY, J.C.A.: I have read the lead Judgment of my learned brother, Oredola, J.C.A. and I agree with the reasoning given by him in allowing the Appeal.
For the same reasons, which I hereby adopt, I also allow the Appeal and set aside the decision of the Plateau State High Court. I abide by the order as to costs.
Appearances
Both parties are absent and unrepresented.For Appellant
AND
For Respondent
