MURAINA OLALEKAN V. IFEDAPO MICROFINANCE BANK LTD.
(2010)LCN/4042(CA)
In The Court of Appeal of Nigeria
On Monday, the 15th day of November, 2010
CA/I/125/07
RATIO
INTERPRETATION OF STATUTE: INTERPRETATION OF ORDER 17 RULE 9(4) OF THE COURT OF APPEAL RULES 2007 RELATING TO CIRCUMSTANCE WHERE AN APPEAL WILL BE TREATED AS HAVING BEEN DULY ARGUED EVEN THOUGH A PARTY TO THE APPEAL OR A LEGAL PRACTITIONER APPEARING FOR HIM DOES NOT APPEAR TO PRESENT ORAL ARGUMENT
…Order 17 Rule 9(4) of the Court of Appeal Rules 2007 provides as follows. “When an appeal is called and the parties have been duly served with the Notice of hearing but if any party or any legal practitioner appearing for him does not appear to present oral argument even though briefs have been filed by all the parties concerned in the appeal, the appeal will be treated as having been duly argued.” PER ALAGOA, J.C.A.
PROVISION OF ORDER 23 OF THE OYO STATE HIGH COURT (CIVIL PROCEDURE) RULES 1988 AS IT RELATES TO THE PRINCIPLES GUIDING THE UNDEFENDED LIST PROCEDURE
It is instructive to reproduce Order 23 of the Oyo State High Court (Civil Procedure) Rules 1988 – “ORDER 23 The Undefended List 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 circumstance of the particular case. 2. There shall be delivered by the plaintiff to the Registrar upon the issue of the writ of summons as foresaid, 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 each of the summons for service. 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. (2) Where leave to defend is given under this rule, the action shall be removed from the Undefended List and placed on the ordinary Cause List; and the Court may order pleadings, or proceed to hearing without further pleadings. 4. Where any defendant neglects to deliver the notice of defence and affidavit prescribed by rule 3(1) or is not given leave to defend by the Court, the suit shall be heard as an undefended suit, and judgment given thereon, without calling upon the plaintiff to summon witnesses before the court to prove his case formally. 5. Nothing herein shall preclude the Court from hearing or requiring oral evidence, should it so think fit, at any stage of the proceedings under rule 4.” These provisions are not ambiguous. PER ALAGOA, J.C.A.
UNDEFENDED LIST PROCEDURE: PURPOSE OF BRINGING ACTIONS UNDER THE UNDEFENDED LIST; DUTY OF THE COURT WITH RESPECT TO AN ACTION BROUGHT UNDER THE UNDEFENDED LIST
The point must now be made that the sole purpose of actions brought under the undefended list is to save time and costs where with respect to a claim for a liquidated sum of money plaintiff applies to court to place the suit in the undefended list and disposes in a supporting affidavit that to the best of his knowledge defendant has no defence to the claim. The Court enters the suit in the undefended list and the writ is marked “undefended”. The Court then sets a date for hearing. On the date so fixed by the court for hearing, the court expects to see a Notice of Intention to defend the action followed by an affidavit in support disclosing a defence on the merits filed by the defendant. If there is no such Notice of Intention to defend the action filed, then the court has a duty to enter judgment for the plaintiff in terms of the claim. PER ALAGOA, J.C.A.
SERVICE OF A WRIT OF SUMMONS : WHETHER FAILURE TO EFFECT SERVICE OF A WRIT OF SUMMONS ON A DEFENDANT AT LEAST 8 DAYS TO HIS ENTRY OF APPEARANCE WILL RENDER THE WRIT INVALID
…the requirement that service of a writ of summons be effected on a defendant at least 8 days to his entry of appearance is only a matter of practice and not a mandatory rule of law that renders the writ invalid. See DUKE V. AKPABUYO LOCAL GOVERNMENT (2005) 12 SCNJ 280. PER ALAGOA, J.C.A.
JUSTICES
STANLEY SHENKO ALAGOA Justice of The Court of Appeal of Nigeria
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
Between
MURAINA OLALEKAN Appellant(s)
AND
IFEDAPO MICROFINANCE BANK LTD. Respondent(s)
ALAGOA, J.C.A. (Delivering the Leading Judgment): In the High Court of Justice of Oyo State of Nigeria, holden at Saki, the Respondent as plaintiff brought an action under the Undefended List claiming the following reliefs –
1. The sum of Six Hundred and Nineteen Thousand, Four Hundred and Ninety Seven Naira, Thirty Seven Kobo (N619,497 ’37) only being outstanding principal sum, interest and bank charges of credit facility as at the 31st May, 2006 granted to the defendant by the plaintiff which had remained unpaid despite repeated demands.
2. Interest at the rate of 21% monthly on the above indebtedness with effect from June 2006 until judgment.
3. Interest at the rate of 10% on the judgment, debt until its liquidation.
By an exparte application dated the 22nd June, 2006 and filed on the 28th June, 2006 the Respondent (then plaintiff) sought for leave to issue the writ of summons in the suit and for an order transferring the suit to the Undefended List and to mark the writ of summons accordingly. This application was granted on the 13th July, 2006 and a return date was fixed for the 24th July, 2006 by the trial Judge.
When the suit came up for hearing on the 24th July, 2006, parties were present as borne out by page 35 of the Record of appeal’ Respondent’s Counsel drew the attention of the Court to the fact that the suit was one under the undefended list and that no Notice of Intention to defend the suit had been filed and asked that judgment be entered accordingly in favour of the Respondent. The learned trial Judge after stating the claim before the court went further to state as follows at pages 35 and 36 of the Records,
“On the 13th July, 2006, this suit was placed on the undefended suit (sic) after considering the plaintiff’s application for same. The Return date was fixed for 24/7/2006. Up till the time of writing this judgment the defendant has not filed any Notice of Intention to defend coupled with affidavit exhibiting defence on the merit and thereby conforming to Order 21(4) of the Rules which stated thus:
’23(4) Where any defendant neglects to deliver the Notice of defence and affidavit prescribed by rule 3(1) or is not given leave to defend by the court, the suit shall be heard as an undefended suit and judgment given thereby without calling upon the plaintiff to summon witnesses before the court to prove his case formally.”‘
The learned trial Judge went on further to state as follows:
“The Defendant has shown that he has no defence hence the plaintiff is entitled to judgment as stipulated by the order quoted above. Judgment is hereby awarded in favour of the plaintiff against the defendant for the sum of N619,497.37. 10% interest per annum on the judgment debt of N619,497.37k is also granted to the plaintiff from today when judgment is being delivered until final liquidation of same. Leg 2 of the claim having been withdrawn same is hereby struck out. This shall be the judgment of this court. Chief Siyanbola asks for N6,000.00 cost out of which the court expenses is N3,200.00k. I award N6,000.00 cost in favour of the plaintiff against the defendant.”
It is this judgment that the defendant as Appellant is appealing against by his Notice of Appeal dated the 27th July, 2006 which is reproduced hereunder from pages 38 and 39 of the Record of Appeal:
“IN THE COURT OF APPEAL HOLDEN AT IBADAN
SUIT NO: HSK/27/2006
APPEAL NO:
BETWEEN:
MURIANA OLALEKAN DEFENDANT/APPELLANT
AND
IFEDAPO COMMUNITY BANK LTD PLAINTIFF/RESPONDENT
NOTICE OF APPEAL
TAKE NOTICE that the Petitioner being dissatisfied with the decision more particularly stated in paragraph 2 below of the High Court of Oyo State contained in the judgment of the Honourable Justice Lufadeju dated 24th day of July, 2006 do hereby appeal to the Court of Appeal upon the grounds set out in paragraph 3 and will at the hearing of the Appeal seek the reliefs out in paragraph 4.
AND THE APPELLANT further states that the names and addresses of the persons directly affected by the appeal are those set out in paragraph 5.
2. PART OF THE DECISION COMPLAINED OF:
WHOLE DECISION
3. Grounds of Appeal
The learned trial Judge erred in law when he entered judgment against the defendant without giving the defendant adequate time to prepare his defence in line with the Undefended Rules procedure.
PARTICULARS
(e) Under the High Court Rules of Oyo State, the defendant is entitled to a minimum of eight days to make up his mind whether or not he intends to defend the suit.
(f) The defendant was served on Friday, 21 July, 2006 while judgment was entered against him on Monday, 24 July, 2006, a period of time less than the required time for filing of affidavit showing intention to defend.
The learned trial judge erred in law by entering judgment for the plaintiff in spite of the fact that the defendant was not given sufficient time to take necessary step prescribed by the rules, thereby violating the defendant’s right to fair hearing.
PARTICULARS
(d) Under Section 36 of the 1999 Constitution, a person shall be entitled to a fair hearing in the determination of his civil rights and obligations.
(e) By serving processes on the defendant on Friday and entering judgment three days after, defendant’s right to fair hearing was violated and a miscarriage of justice was occasioned.
ADDITIONAL GROUNDS OF APPEAL TO BE FILED LATER
4. RELIEFS SOUGHT FROM THE COURT OF APPEAL
That the judgment of Lufadeju J. of the High Court of Saki dated 24 July, 2006 be set aside.
5. PERSONS DIRECTLY AFFECTED BY THE APPEAL
NAME:
1. ALHAJI MURIANA OLALEKAN
……… C/O His Solicitors
Kunle Fadipe & Co.,
16, College Road,
Cinema Bus/Stop,
Ifako/Ijaiye, Lagos.
2. IFEDAP. COMMUNITY BANK LTD.
c/o Their Counsel,
Chief Olawuwo Siyanbola,
Grace Chambers
Ajegunle, Saki, Oyo State.
Dated this 27th Day of July, 2006.
Kunle Fadipe & Co.,
Petitioner/Appellant’s Solicitors
16, College Road Cinema B/Stop
Ifako/Ijaiye, Lagos.
I undertake personal service.
Patrick Arasanmi Esq.
28th July, 2006”
It is instructive to note that no further or additional grounds of appeal than the reproduced ones above were filed by the Appellant.
From the Grounds of Appeal the Appellant has formulated the following two issues for the determination of this Court – 1. Whether a defendant who was not served or properly served with the originating processes can be required to exercise the options open to him to defend the action under the undefended list procedure.
2. Whether by entering judgment against ‘the Appellant a day after he was served with the writ of summons and other relevant summons under the undefended list procedure, the learned trial Judge had not violated the Appellant’s right to fair hearing.
These issues are contained in the Appellant’s Brief of Argument dated the 22nd March, 2010 and filed on the 23rd March, 2010.
On the other hand the Respondents Brief of Argument dated the 17th May, 2010 and filed on the 19th May, 2010 contains one singular issue and that is, “Whether the trial court lacked jurisdiction to entertain judgment in an undefended suit against the Appellant on the main ground that the judgment was delivered before the statutory period of eight (B) days allowed by the rules for entry of appearance by the Appellant who was the defendant at the trial court.”
On the 29th September, 2010 when this appeal came up to be heard Appellant’s Counsel Kunle Fadipe adopted and relied on the Appellant’s Brief of Argument earlier referred to. He said he had not considered it necessary to file a Reply Brief and urged this Court to allow the appeal and set aside the judgment of the lower court.
The Registrar of this Court informed the Court that the Respondent’s Counsel O. Siyanbola Esq. was present in Court on the 24th March, 2010 when the Appeal was adjourned to the 29th September, 2010. This Court dug into the record of its proceedings on the said 24th May, 2010 and found that the Respondent’s Counsel O. Siyanbola though absent from Court on the 29th September, 2010 when this appeal came up to be heard was present in Court on the 24th March, 2010 when this appeal was adjourned to the 29th September, 2010 for hearing.
This Court also noted that though absent, the Respondent’s Brief of Argument had been filed and served on the Appellant, The court therefore invoked the provisions of order 17 Rule 9(a) of the Court of Appeal Rules 2007 to treat the appeal as having been argued by the Respondent. The said Order 17 Rule 9(4) of the Court of Appeal Rules 2007 provides as follows.
“When an appeal is called and the parties have been duly served with the Notice of hearing but if any party or any legal practitioner appearing for him does not appear to present oral argument even though briefs have been filed by all the parties concerned in the appeal, the appeal will be treated as having been duly argued.”
Respondent’s Counsel needed no further Hearing Notice to be in Court on the 29th September, 2009.
From a cursory look at the issues distilled by the parties, I think the proper sole issue to determine the appeal is:
“Whether the learned trial Judge was right to have given judgment as he did on the 24th July, 2006 regard being had to all the circumstances of the case.”
Briefly the Respondent who was the plaintiff in the lower court commenced this action under the undefended list procedure pursuant to order 23 of the High court (Civil Procedure) Rules of Oyo state 1988. By an order of the court below dated the 13th July, 2006, the suit was placed on the undefended list and a return date of 24th July, 2006 was fixed following the grant by the court below of an exparte application by the then Plaintiff/Applicant pursuant to order 23 Rule 1 of the High court (civil procedure) Rules of Oyo state 1988 for an order transferring the suit to the undefended list and to so mark the writ of summons accordingly. On the 24th July, 2006, the learned trial Judge noting that the then defendant (now Appellant) had not filed a Notice of Intention to defend the suit together with an affidavit disclosing a defence on the merits, after hearing counsel for the Respondent entered judgment for the Respondent.
Appellant’s position is that he was not served with the writ of summons or other processes in this suit until Friday 21st July, 2006 when the trial court had fixed Monday, the 24th day of July as the date for the hearing of the suit under the undefended list, and as such he could not have had sufficient time before the 24th July, 2006 to enter appearance if he so wished and file a Notice of Intention to defend the suit in accordance with the Oyo State High Court Civil procedure Rules 1988. Appellant went on to say in his unpagenated Brief of Argument that in the Writ of Summons dated the 13th July, 2006 served on the Appellant, it is clearly stated thereon that the defendant/Appellant was “hereby commanded that within 8 days after the service of this writ on you inclusive of the day of such service” he should cause an appearance to be entered for him “in an action at the suit of the PLAINTIFF and take notice that in default of your so doing the plaintiff may proceed therein and judgment may be given in your absence. Appellant submitted that the literal interpretation of this notice which admits of no other interpretation is that the defendant/Appellant had nothing less than 8 (eight) days beginning from the date of service to take a step in the case and that under Order 23 Rules 3(1) and 4 of the High Court (Civil Procedure) Rules of Oyo State 1988 which govern the undefended list procedure a party served with the writ of summons and affidavit must deliver to the registrar a notice in writing that he intends to defend the suit together with an affidavit disclosing a defence on the merits. Appellant went on to say that Order 23 Rule 4 of the Oyo State High Court Civil Procedure Rules 1988 prescribes that –
“Where any defendant neglects to deliver the Notice of Defence and Affidavit prescribed by rule 3(1) the suit shall be heard as an undefended list (sic) and judgment given thereon without calling upon the plaintiff to summon witnesses before the court to prove his case formally.”
In other words, Appellant submitted, the defendant must have been given an opportunity to deliver the notice of defence and affidavit prescribed and he must have neglected to do so. Counsel went on to submit that it can hardly be argued that a man who was served on a Friday for a matter coming up the following Monday omitted to deliver the Notice of Defence because he had not time to do so. Counsel went further to say that the Court Registry where filing would be done does not open on weekends just as most law firms which are supposed to assist the Appellant in putting forward his case do not open on weekends. Counsel went further to say that in essence Appellant’s right to fair hearing which is fundamental had been violated. Counsel relied on BEN THOMAS HOTELS LTD. V. SEBI FURNITURE CO. LTD. (1989) 12 SCNJ 17 to the effect that it is only where a defendant who is given ample opportunity fails to file his Notice of Intention to defend that judgment can be entered for the plaintiff based on his writ without much ado. Reliance was placed on OBADIEGWU V. LION BANK OF NIG. LTD. (2003) FWLR (PART 16s) 10 at 423. Counsel went on further to rely on other cases based on fair hearing such as ADIGUN V. A.G. OYO STATE G987) 1 NWLR (PART 53) 678; JAMMAL ENGINEERING CO. LTD. V. MISR (NIG.) LTD. (1972) 4 SC 79; AGUEZE V. PAN AFRICAN BANK (1992) 4 NWLR (PART 223) 76; ATAGUBA & CO. V. GURA (2000) FWLR (PART 24) 1522 at 1541; R.S.G.N. V. SPECTALTST KONSULT (2005) All FWLR (PART 254) 888 to mention a few. Counsel reiterated that the Appellant was served with the writ of summons under the undefended list two days instead of at least eight days to the day fixed for hearing. The learned trial Judge he said, owed it a duty to examine the record to see whether the Appellant was served properly and had the court done so, it would have been obvious to the Court that the Defendant/Appellant had not been served in good time to file any process.
Respondent has submitted that upon an application brought by the Respondent, this court permitted to be included an additional record paged No. 34A of the Record of Appeal by an order dated 6th May, 2008 and according to the said page 34A of the record, the Respondent was served on Thursday the 20th July, 2006 with all the court processes bearing the return date. Page 34A of the record is the affidavit of service sworn to by the Assistant chief Bailiff of the lower court otherwise referred to as the proof of service. Respondent went further to say that in accordance with order 23 Rule 4 of the High court (Civil Procedure) Rules of Oyo State 1988 Judgment was entered against the Appellant in the absence of a Notice of Intention to defend. He referred to order 12 Rule 28 of the High Court (Civil Procedure) Rules of Oyo State where it is provided that, “In all cases where service of any writ or document shall have been effected by a bailiff or other officer of court, an affidavit of service sworn to by such bailiff or other officer shall on production without proof of signature be prima facie evidence of service.”
Reliance was also placed on FATOKUN V. SOMADE (2003) 1 NWLR PART 802 page 431 at 447 paras. G-H. Respondent went on to submit that the Appellant was in court on the 24th July, 2006 when the suit came up for hearing and neither raised an objection to the trial nor sought for an adjournment by himself or through Counsel and the fact that service was effected less than 8 days to the hearing of the suit did not vitiate or render the proceedings a nullity, Counsel submitted that the entire court processes and the exhibits attached indicate a claim for a liquidated sum of money.
It is instructive to reproduce Order 23 of the Oyo State High Court (Civil Procedure) Rules 1988 –
“ORDER 23
The Undefended List
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 circumstance of the particular case.
2. There shall be delivered by the plaintiff to the Registrar upon the issue of the writ of summons as foresaid, 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 each of the summons for service.
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.
(2) Where leave to defend is given under this rule, the action shall be removed from the Undefended List and placed on the ordinary Cause List; and the Court may order pleadings, or proceed to hearing without further pleadings.
4. Where any defendant neglects to deliver the notice of defence and affidavit prescribed by rule 3(1) or is not given leave to defend by the Court, the suit shall be heard as an undefended suit, and judgment given thereon, without calling upon the plaintiff to summon witnesses before the court to prove his case formally.
5. Nothing herein shall preclude the Court from hearing or requiring oral evidence, should it so think fit, at any stage of the proceedings under rule 4.”
These provisions are not ambiguous. The point must now be made that the sole purpose of actions brought under the undefended list is to save time and costs where with respect to a claim for a liquidated sum of money plaintiff applies to court to place the suit in the undefended list and disposes in a supporting affidavit that to the best of his knowledge defendant has no defence to the claim. The Court enters the suit in the undefended list and the writ is marked “undefended”. The Court then sets a date for hearing. On the date so fixed by the court for hearing, the court expects to see a Notice of Intention to defend the action followed by an affidavit in support disclosing a defence on the merits filed by the defendant. If there is no such Notice of Intention to defend the action filed, then the court has a duty to enter judgment for the plaintiff in terms of the claim. The proceedings of the court below on the 24th July, 2006 when this case was fixed for hearing by the court below are contained at pages 35 and 36 of the Record of Appeal. The proceedings show that the parties were present.
Counsel for the Plaintiff (Respondent in this appeal) informed the court that the suit was one under the undefended list and no Notice of Intention to defend the suit had been filed by the defendant (Appellant in this appeal)’ The records do not show that the Defendant/Appellant who was present in court when Chief O. Siyanbola Counsel for the Respondent asked the court to enter judgment for the Plaintiff/Respondent said anything to the Court. He could have asked for an adjournment or made any other plea to court. And why was the Appellant’s Counsel who admitted that service of the writ had been effected on the Appellant on the 21st July, 2006 not present in court on the 24th July, 2006 to inform the Court that he considered the time from the 21st July, 2006 to 24th July, 2006, too short for him to file a Notice of Intention to defend? Appellant has rather very unwittingly cited ALALE V. OLU (2000) FWLR (PART 23) 1294 at 1988 to the effect that, “When a case placed on the undefended list comes to court on the return date, the court has one and only duty, namely to see whether the defendant has filed a Notice of intention to defend together with an affidavit disclosing a defence on the merit and if no such notice and affidavit had been filed within the required period before the return date, the court has no choice in the matter than to proceed to hear the matter as an undefended suit and enter judgment for the plaintiff.”
(Underlining mine for emphasis.)
Appellant’s admission of this current legal position can be likened to that of a man who takes his time to fully load a shotgun which he now hands over to a formidable foe with clear instructions to shoot him (Appellant) at point blank range. Does fair hearing exist in vacuo? I think not.
A representation would have been made to court by the Appellant who was present in court or by his Counsel who admitted being served with the writ of summons and the court would have refused to give due consideration to that representation before the issue of fair hearing would arise. Whether service of the writ on the Appellant was effected on the 20th July, 2006 or the 21st July, 2006 would appear to me merely academic as such service is less than 8 days to the date of hearing of the suit and that is the complaint of the Appellant. Order 23 of the Oyo State High Court Civil procedure Rules 1998 does not give a specific time frame between the service of the writ on the defendant and the date for hearing. Be that as it may, the requirement that service of a writ of summons be effected on a defendant at least 8 days to his entry of appearance is only a matter of practice and not a mandatory rule of law that renders the writ invalid. See DUKE V. AKPABUYO LOCAL GOVERNMENT (2005) 12 SCNJ 280. I therefore, have no hesitation in determining the sole issue in this appeal in favour bf the Respondent against the Appellant.
The appeal fails and is dismissed and the judgment of Lufadeju J. delivered on the 24th July, 2006 is hereby accordingly affirmed by me. There shall be N30,000.00 (Thirty Thousand Naira) costs in favour of the Respondent against the Appellant.
BAGE, J.C.A: I had the privilege of reading before now the judgment delivered by my learned brother, STANLEY SHENKO ALAGOA, J.C.A. who has dealt with the issues in detail and I have nothing more to add. I entirely agree that the appeal lacks merit and it ought to be dismissed and I hereby dismiss same.
I abide with consequential orders made in the lead judgment including costs.
FASANMI. J.C.A: I had the advantage of reading in advance the Judgment of my learned brother S.S. Alagoa J.C.A. I agree with the reasoning and conclusion reached therein. The appeal lacks merit and it is accordingly dismissed. The Judgment of the lower court delivered on the 24th of July, 2006 is also affirmed by me. I abide with the consequential order made.
Appearances
Kunle Fadipe Esq.For Appellant
AND
O. Siyanbola Esq.For Respondent
