MRS. EFIO-ANWAN EFFIOM WAKEHAM v. I.D. CO-OPERATIVE SOCIETY LIMITED
(2019)LCN/13014(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 2nd day of April, 2019
CA/C/305/2016
RATIO
UNDEFENDED LIST: PROCEDURE
The Supreme Court pronounced on this important point in the case of OBARO v HASSAN [2013] 53 NSCQR 332 where it said inter alia, that:
The Judge shall order that a writ of summons be issued by the Registrar and so marked as Undefended List after having taken the application and satisfied that the case is one fit to be brought under the undefended list. In other words, the writ of summons as an originating process under Order 23 of the High Court (Civil Procedure) Rules is a specially and peculiarly endorsed writ of summons. ? the writ of summons initiated pursuant to this rule under this procedure cannot be issued by the Registrar prior to the presentation and consideration of the application for issuance of same by the Court, otherwise it goes without saying that such writ of summons which is issued before the Court’s order so to do becomes incompetent and shall be liable to be declared a nullity by the Court.
See also IDRIS v ARCHIBONG [2001] 9 NWLR [Pt. 718]; EQUITY BANK OF NIG. LTD. v HALILCO NIG. LTD. (2006] 7 NWLR [Pt. 908] 568; BAYERO v MAINASARA & SONS LTD. [2006] 8 NWLR [Pt. 982] 391 @ 425.PER MOJEED ADEKUNLE OWOADE, J.C.A.
A COURT THAT IS INCOMPETENT WILL LEAD TO A NULLITY OF PROCEEDINGS
Finally, that any defect in the competence is fatal for proceedings are a nullity however well conducted and decided as the defect is extrinsic to the adjudication. See UMANAH v ATTAH [2006] 17 NWLR [Pt. 1009] 503; MADUKOLU v NKEMDILIM [1962] 1 ALL NLR 587 SC; SKENCONSULT v UKEY [1981] 1 SC 6; BENIN RUBBER PRODUCERS LTD. v OJO [1997] 9 NWLR [Pt. 521] 388 SC; MAGAJI v MATARI [2000] 5 SC 46; ALAO v AFRICAN CONTINENTAL BANK LTD. [2000] 6 SC [Pt. 1] 27; GALADIMA v TAMBAI [2000] 6 SC [Pt. 1] 196; ARAKA v EJEAGWU [2000] 12 SC [Pt. 1] 99; LUFTHANSA AIRLINES v ODIESE [2006] 7 NWLR [Pt. 978] 39 CA; ADEGOKE MOTORS LTD. v ADESANYA [1989] 3 NWLR [Pt. 109] 250; EZOMO v OYAKHIRE [1985] 1 NWLR [Pt. 2] 195; APUGO & SONS LTD. v OHMB [2016] 6 MJSC 71 @ 114 – 115.PER MOJEED ADEKUNLE OWOADE, J.C.A.
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
MRS. EFIO-ANWAN EFFIOM WAKEHAM – Appellant(s)
AND
I.D. CO-OPERATIVE SOCIETY LTD – Respondent(s)
MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision/Ruling of Hon. Justice O.A. Ogar sitting in the Calabar Division of the High Court of Cross River State delivered on 28/4/2016.
The Respondent who was the claimant in the Court below filed a writ of summons on 9/11/2015 and on the same day brought a motion ex parte praying that the matter be placed, heard and determined under the undefended list. The claim of the Respondent against the Appellant Defendant as endorsed in the writ of summons of 9/11/2015 is as follows:
a) A declaration that the claimant is entitled to the sum of N2,953,000.00 [Two million, Nine Hundred and Fifty Three Thousand Naira] only being unpaid debt owned the claimant for a transaction of a parcel of land.
b) 10% interest of judgment sum.
On 23/11/2015, the learned trial judge granted leave to issue a writ of summons as per the attached writ for hearing on the undefended list. That the writ so issue shall be marked ?Undefended?. And, that the return date for the hearing of the suit shall be the 8th of December, 2015.
1
The processes of Court including the writ of summons were served on the Appellant [Defendant] by substituted service and the matter was adjourned to 26/1/2016 for hearing.
On 14/1/2016, the Appellant [Defendant] filed a Notice of intention to defend the suit with a supporting affidavit that she has a defence to the action.
On 28/4/2016, the learned trial judge delivered his ruling and held that he was satisfied that the defendant [Appellant] has no real defence to the claim and entered judgment on the total indebtedness and 10% interest per annum on the judgment sum in favour of the Respondent.
Dissatisfied with the judgment, the Appellant filed a Notice of Appeal containing two (2) grounds of appeal in this Court on 10/5/2016.
The relevant briefs of Argument are:
1. Appellant?s brief of argument dated 21/11/2016 and filed on 10/11/2017. It is settled by F. U. Okoli, Esq.
2. Respondent?s brief of argument dated 27/11/2017 and filed on 28/11/2017. It is settled by Ukpong Eba, Esq.
Learned counsel for the Appellant nominated one issue for determination, it is:
Whether the filing of writ of
2
summons under the undefended list prior to Court?s order to do so did not make the writ of summons a nullity therefore depriving the trial Court the jurisdiction to hear and determine the writ.
Learned counsel for the Respondent nominated a similar issue thus:
Whether the case before the trial Court was properly brought under the undefended list in accordance with the provision of Order 10 Rule 1 of the High Court [Civil Procedure] Rules 2008 of Cross River State.
On the sole issue for determination, learned counsel for the Appellant submitted that the writ of summons on which foundation the judgment was entered against the Appellant in favour of the Respondent on 28/4/2015 is unmarked as dictated by the Rules of Court. The Registry?s stamp and assessment on the writ indicates that the writ was filed on 09/11/2015.
Appellant?s counsel submitted that the enrolled order and the proceedings show that leave was granted the Respondent to issue the writ and mark same ?Undefended? on 23/10/2015. In other words, that the writ of summons was filed under the undefended list 14 days before order to issue same
3
by the lower Court.
He submitted that the issuance of Court processes is basic and fundamental and it is a condition precedent to the exercise of the Court?s jurisdiction. That since the purpose of the issuance of the writ is to place it on a special cause list for hearing, thereby fulfilling the condition required to clothe the Court with jurisdiction, any defect thereto would render the whole proceeding a nullity. He referred to the cases of APUGO & SONS LTD. v OHMB [2016] 6 MJSC 71 @ 114 ? 115; SKENCONSULT (NIG) LTD. v UKEY [1981] 1 SC 6; EZOMO v OYAKHIRE [1985] 1 NWLR [Pt. 2] 195; ADEGOKE MOTORS LTD. v ADESANYA [1989] 3 NWLR [Pt. 109] 250; SLB CONSORTIUM LTD. v NNPC [2011] 9 NWLR [Pt. 1252] 317 @ 329; AFRIBANK NIG. v BONIK INDUSTRIES LTD. [2006] 5 NWLR [Pt. 972] 300 @ 304; OKOLO v UBN LTD. [2004] 3 NWLR [Pt. 859] 87 @ 108.
He reiterated that the Appellant?s grouse is that the writ upon which the judgment was based was not initiated or issued by due process of law and upon fulfilling the condition precedent for the lower Court to have exercised its jurisdiction. Furthermore, that the lower Court also lacked the
4
jurisdiction to enter the judgment in favour of the Respondent as it exceeded the time required by the Rules of Court to determine a suit placed under the undefended list. In other words, said counsel, assuming without conceding that the writ was issued with the due process of law and with condition precedent fulfilled, the lower Court would be divested of jurisdiction to enter judgment in the case as it exceeded the prescribed period dictated by the Order 10 Rule 6 of the High Court [Civil Procedure] Rules of Cross River State, 2008. Still on the issue of the writ being issued before the order issuing it was made, Appellant?s counsel referred to the cases of OBARO v HASSAN [2013] 53 NSCQR @ 332; IDRIS v ARCHIBONG [2001] 9 NWLR [Pt. 718]; EQUITY BANK OF NIG. LTD. v HALILCO NIG. LTD. [2006] 7 NWLR [Pt. 908] 568; BAYERO v MAINASARA & SONS LTD. [2006] 8 NWLR [Pt. 982] 391 @ 425 and submitted that the writ of summons initiated pursuant to the provision of Order 23 of the High Court [Civil Procedure] Rules is a specially and peculiarly endorsed writ of summons and cannot be issued by the Registrar prior to the presentation and consideration of
5
the application for issuance of same by the Court. Such a writ of summons issued before the Court?s order so to do becomes incompetent Appellant?s counsel submitted that the provision of Order 23 Rules 1 & 2 of the FCT High Court [Civil Procedure] Rules considered in the case of OBARO v HASSAN [2013] 53 NSCQR @ 332 is on all fours with Order 10 Rule 1 and 2 of the High Court of Cross River State [Civil Procedure] Rules 2008. That the writ in the instant case was filed prior to the Court?s order to do so on 9/11/2015. The order placing the writ on the undefended list was made on 23/11/15. This, according to counsel means that the writ was filed 14 days before the Court order. He submitted that the writ is incompetent and ought to be declared a nullity.
Learned counsel for the Respondent on the other hand submitted that the action was perfectly commenced pursuant to Order 10 Rule 1 of the High Court [Civil Procedure] Rules of Cross River State 2008.
He submitted that the following steps are to be followed by the claimant to activate the undefended list procedure.
a) An application must be made to
6
the Court for the issuance of a writ of summons.
b) The application must be to recover a debt liquidated money demand or any other claim.
c) The application must be supported by an Affidavit setting forth the grounds upon which the claim is based.
d) The Affidavit must state that the deponent believed the Defendant has no defence.
e) That the Court should enter the suit for hearing on the undefended list if he believes that there is indeed no defence.
f) The Court shall mark the writ of summons accordingly.
g) The Court shall set a suitable date for hearing.
Respondent?s counsel submitted that it is clear from the above that the general position is that a writ of summons should be marked undefended by the Court before it be placed on the undefended list. He submitted that a claimant starts the process by applying for a writ of summons. That the writ must be filed with a motion ex parte supported by Affidavit. And that it is that same writ that would be marked undefended after the order of the Court and served on the Defendant along with other processes.
7
Respondent?s counsel submitted further that the purpose of Order 10 Rule 1 of the High Court [Civil Procedure] Rules of Cross River State 2008, is not to mandate the Judge to issue a writ of summons but the placement of the writ in the appropriate cause list for hearing in essence that, what the trial judge did was not issuance of writ of summons on the undefended list by the Court.
Respondent?s counsel referred to the cases of BAYERO v MAINASARA & SONS LTD. [2006] 36 WRN 136; WAADE INVESTMENT NIG. LTD. & ANOR v TRADE BANK PLC [2006] ALL FWLR [Pt. 336] 352; A.T. & PLYWOOD (NIG) LTD. v D.P. (NIG) LTD. [2015] 43 WRN 129 ? 130 and reiterated that the claimant Respondent started the process by applying for a writ of summons. The writ was with a motion ex parte supported by Affidavit. That it was the same writ that was marked undefended after the order of Court and served on the Defendant along with other processes.
He submitted that there is presumption of regularity in favour of the writ of summons which was marked after the order had been given by the trial judge and not before.
?
On another wicket, Respondent?s counsel submitted
8
that the Appellant is purportedly complaining about breach of practice and procedure. And that it is trite that breach of practice and procedure can only render proceedings irregular and not a nullity. After referring to the case of AGBAKOBA v INEC [2009] 2 WRN 1 on this score, he further submitted that the procedure adopted by the claimant Respondent in the Court below had not adversely affected the decision of the lower Court to cause gross miscarriage of justice- hence it can be forgiven so that technicality would not reign over justice. In fact that the Appellant had not called upon the appellate Court hereto to determine whether the trial judge was wrong to hold that after a consideration of the Notice of Intention to Defend and Affidavit in support of same filed by him that he has a defence on the merit.
RESOLUTION OF ISSUE
The Respondent in this appeal forcefully defended the rather strange procedure he adopted to place the matter before the Court below on the undefended list by first issuing a writ of summons before the application to the Court to issue a writ of summons under the undefended list. He went further
9
to argue that if he were wrong the procedure adopted should be treated as irregularity which does not affect the jurisdiction of the Court.
The relevant provision of Order 10 Rule 1 of the High Court (Civil Procedure) Rules of Cross River State, 2008 which bears uniformity with Order 23 Rule 1 of the uniform Rules states thus:
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.
It is clear from the above provision, unlike the procedure set out in the Respondent?s brief of argument that the application supported by an affidavit necessarily precedes the
10
issuance of a writ of summons under the undefended list procedure and that any attempt to put the cart before the horse as was done in the instant case amounts to the issuance of an incurable defective writ of summons under the Undefended List procedure and not just a matter of irregularity. The Supreme Court pronounced on this important point in the case of OBARO v HASSAN [2013] 53 NSCQR 332 where it said inter alia, that:
?. The Judge shall order that a writ of summons be issued by the Registrar and so marked as ?Undefended List? after having taken the application ? and satisfied that the case is one fit to be brought under the undefended list. In other words, the writ of summons as an originating process under Order 23 of the High Court (Civil Procedure) Rules is a specially and peculiarly endorsed writ of summons. ? the writ of summons initiated pursuant to this rule under this procedure cannot be issued by the Registrar prior to the presentation and consideration of the application for issuance of same by the Court, otherwise it goes without saying that such writ of summons which is issued before the
11
Court?s order so to do becomes incompetent and shall be liable to be declared a nullity by the Court.
See also IDRIS v ARCHIBONG [2001] 9 NWLR [Pt. 718]; EQUITY BANK OF NIG. LTD. v HALILCO NIG. LTD. (2006] 7 NWLR [Pt. 908] 568; BAYERO v MAINASARA & SONS LTD. [2006] 8 NWLR [Pt. 982] 391 @ 425.
In the instant case, the writ of summons which on its face was never marked ?Undefended List? was filed on 9/11/15. The order placing the writ on the undefended list was made on 23/11/2015. Thus, the learned counsel for the Appellant was right to have said that the writ was filed 14 days before the order of Court to place it on the undefended list.
In this respect, I agree with the learned counsel for the Appellant that the ingredients of jurisdiction are long settled and an adjudicating Court is said to be competent when:
a) It is properly constituted as regards the number and qualification of the members of the bench and no member is disqualified for one reason or another; and
b) The subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from
12
exercising its jurisdiction; and
c) The case comes before the Court of law initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction.
Finally, that any defect in the competence is fatal for proceedings are a nullity however well conducted and decided as the defect is extrinsic to the adjudication. See UMANAH v ATTAH [2006] 17 NWLR [Pt. 1009] 503; MADUKOLU v NKEMDILIM [1962] 1 ALL NLR 587 SC; SKENCONSULT v UKEY [1981] 1 SC 6; BENIN RUBBER PRODUCERS LTD. v OJO [1997] 9 NWLR [Pt. 521] 388 SC; MAGAJI v MATARI [2000] 5 SC 46; ALAO v AFRICAN CONTINENTAL BANK LTD. [2000] 6 SC [Pt. 1] 27; GALADIMA v TAMBAI [2000] 6 SC [Pt. 1] 196; ARAKA v EJEAGWU [2000] 12 SC [Pt. 1] 99; LUFTHANSA AIRLINES v ODIESE [2006] 7 NWLR [Pt. 978] 39 CA; ADEGOKE MOTORS LTD. v ADESANYA [1989] 3 NWLR [Pt. 109] 250; EZOMO v OYAKHIRE [1985] 1 NWLR [Pt. 2] 195; APUGO & SONS LTD. v OHMB [2016] 6 MJSC 71 @ 114 ? 115.
Undoubtedly, the issuance of Court process especially the originating process as the writ of summons is basic and fundamental and it is a condition precedent to the exercise of the Court?s
13
jurisdiction. Since the purpose of the issuance of the writ in the instant case under the undefended list is to place the writ and the action on a special cause list for hearing thereby fulfilling the condition required to clothe the Court with jurisdiction, any defect thereto could not be treated as an irregularity but a defect that goes to the jurisdiction of the Court and renders the proceeding a nullity.
In the circumstance, the only issue in this appeal is resolved in favour of the Appellant.
This appeal is meritorious and it is allowed. The Ruling and Orders of the Hon. Justice O. A. Ogar in Suit No. HC/59/2015 delivered on 28/4/2016 are hereby set aside. Suit No. HC/59/2015 is accordingly struck out.
There shall be no order(s) as to costs.
YARGATA BYENCHIT NIMPAR, J.C.A.: I was afforded the privilege of reading in draft the judgment just delivered by my learned brother: MOJEED ADEKUNLE OWOADE, and I am in total agreement with the manner the issue was resolved and the conclusion arrived at. I have nothing to add and I also agree that the appeal is meritorious and is allowed. I abide by the orders made therein.
14
MUHAMMED LAWAL SHUAIBU, J.C.A.: I have had the privilege of reading in draft the lead judgment of my learned brother MOJEED A. OWOADE, JCA just delivered. My learned brother has ably and painstakingly dealt with all the salient issues of commencing a suit under undefended list procedure. I only need to add that the validity of originating processes in any proceedings is fundamental to the competence of the suit as well as the jurisdiction of Court. Thus, failure to commence or originate a suit, as in this case with valid processes, to wit, fulfilling the condition precedent, same goes to the root of the jurisdictional competence of the Court to hear and determine the substantive suit.
For this and for the fuller reasons contained in the lead judgment, I too allow the appeal. I abide by the consequential orders.
15
Appearances:
F. U. Okoli, Esq.For Appellant(s)
Ukpong Eba, Esq.For Respondent(s)
Appearances
F. U. Okoli, Esq.For Appellant
AND
Ukpong Eba, Esq.For Respondent
