ODESCO INTERGRATED RESOURCES LIMITED & ANOR v. INTERCONTINENTAL BANK PLC
(2010)LCN/4013(CA)
In The Court of Appeal of Nigeria
On Monday, the 18th day of October, 2010
CA/A/171/M/09
RATIO
INTERPRETATION OF STATUTE: INTERPRETATION OF ORDER 21 RULE (1) OF THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY CIVIL PROCEDURE RULES, 2004 AS IT RELATES TO THE UNDEFENDED LIST PROCEDURE
Order 21, Rule (1) Where an application in Form 1, as in the appendix is made to issue of a writ of summons in respect of a claim to recover a debt or liquidated money demand, supported by an affidavit stating the grounds on which the claim is based, and stating that in the deponent’s belief there is no defence to it, the judge in chambers shall enter the suit for hearing in what shall be the Undefended list.” These provisions, which are in pari materia with similar provisions in many of the Civil Procedure Rules of States High Courts, are in very simple and straight forward language and should not present any difficulty in understanding and application. The wordings are so plain and clear that they do not admit of any ambiguity and the known primary duty of the Courts is to ascribe their ordinary grammatical meanings to them in the course of interpretation and application. It is not the duty nor has the Court any power to import any extraneous meaning into or export or exclude any plain meaning from clear and unambiguous words of a statute in the discharge of its interpretative function. See ADEWUNMI v. A.G. EKITI STATE (2002) 2 NWLR (751) 474; LUFTHANSA v. ODIESE (2006) 7 NWLR (978) 34. The plain purport of the above provisions is to provide for what is called the Undefended List procedure under Order 21. They require that where an application was made to the High Court for the issue of a Writ of Summons in respect of a claim to recover a debt or liquidated money demand which was supported by an affidavit stating out the grounds on which the claim is based and that in the Deponent’s belief, there is no defence to it, the Judge in chambers shall enter the suit for hearing in the Undefended list. The application which is to be in the Form 1 of the appendix to the 2004 Rules is for the issuance of a writ of Summons in all civil causes and matters to be initiated or commenced at the High Court. However because the undefended procedure is peculiar and specifically provided to expeditiously dispose of claims which prima facie are straight forward and indisputable i.e. claims for recovery of debt owed or liquidated money demand, the provisions of the Rules of the High court, in this appeal, order 21 Rule 1 in their wisdom require that the application for the issuance of the Writ of Summons should be supported by an affidavit setting out clearly facts which constitute the grounds on which the claim/s is/are based and which state that in the deponent’s belief, there is no defence to the claims. Put another way, Order 21, Rule 1 requires that the writ of Summons must be accompanied by an affidavit which contains positive averments of the facts supporting the claims endorsed thereon and which also state the belief of the deponent of the affidavit that there is no defence to the claims, under the provisions, once the writ of Summons was accompanied by the affidavit in support of the claims endorsed thereon as stated above, then the Rules require that the Judge in chambers “shall enter the suit for hearing in what shall be the “Undefended List”. The use or employment of the word “shall” in an enactment or rules of Court undoubtedly makes it mandatory that provision or rule must be complied with or observed. PER MOHAMMED LAWAL GARBA, J.C.A
SHALL: MEANING OF THE USE OF THE WORD “SHALL” IN ANY ENACTMENT
In ONOCHIE v. ODOGWU (2006) 2 SCNJ, 96 at 114, it was held thus:- “shall is used to express a command or exhortation or what is legally mandatory”. See also IFEZUE v. MBADUGHA (1984) SCNLR 40; OMOKEODO v. IGP (1999) 6 NWLR (607) 467. in these premises, the use of the word “shall” in any enactment would clearly indicate and reveal that the intention of the drafters or makers of the enactment is that the provisions in which it was employed are deliberately made legally mandatory, obligatory and compulsory to be obeyed, complied with and observed in the application of the enactment. Discretion in such circumstances would be outside the contemplation of such provisions and therefore completely excluded if the true intention of the makers is not to be frustrated and eventually defeated. The maxim and the law is “lit res magis valeat quam pereat” which means simply that the interpretation or construction of an enactment should ensure that the intention of the legislature is not frustrated or defeated. A.D.H. v. AMALGAMATED TRUSTEES (2007) ALL FWLR (392) 178, at 1834. I am in no doubt therefore that by the use of the word “shall” in Order 21 Rule 1, a binding duty or obligation is imposed on, an exhortation or command was issued to the Judge in chambers to enter a suit for hearing on the undefended list once the writ of Summons issued in the Registry of the High Court and taken out by a Plaintiff is supported by an affidavit as required in the Rule. PER MOHAMMED LAWAL GARBA, J.C.A
UNDEFENDED LIST PROCEDURE: WHETHER THE DECISION TO EITHER ENTER A SUIT UNDER THE UNDEFENDED LIST OR NOT IS ONE WHICH NECESSARILY INVOLVES THE EXERCISE OF THE JUDICIAL POWER BY A JUDGE IN CHAMBERS WHICH CONFERS THE DISCRETION TO ACT ONE WAY OR THE OTHER ON THE FACTS DISCLOSED IN THE AFFIDAVIT IN SUPPORTING THE APPLICATION FOR THE WRIT OF SUMMONS
I agree with the learned Counsel for the Appellants that the decision to either enter a suit under the undefended list or not is one which necessarily involves the exercise of a judicial power by a Judge in chambers which confers the discretion to act one way or the other on the facts disclosed in the affidavit in supporting the application for the Writ of Summons. To that extent only, there exists a judicial discretion on the part of the Judge to see whether on their face, the facts deposed to in the affidavit do support and bear out the claims to which in the deponent’s belief, there is no defence. A hearing is consequently not envisaged before the exercise of that discretion which like all types of judicial discretions, the law requires that it be exercised both judicially and judiciously. Put simply, acting judicially imports the consideration of the interests of both sides and weighing them in order to arrive at a fair or just decision. Judicious on its part means proceeding from or showing sound judgment marked by wisdom and good sense. See: ERONINI v. IHEUKO (1989) 2 NWLR (101) 46 at 60, ACB LTD. v. NNAMANI (1991) 4 NWLR (186) 486. PER MOHAMMED LAWAL GARBA, J.C.A
UNDEFENDED LIST PROCEDURE: THE NATURE OF THE UNDEFENDED LIST PROCEDURE
The peculiar nature of the Undefended list procedure is that the decisions to enter a suit on the undefended list or not and whether or not to give leave to defend the suit are based and predicated on the facts deposed to and contained in the respective affidavits of the Plaintiff and Defendants. Because oral submissions by parties or their learned Counsel cannot add any legal value or weight to the facts deposed to in such affidavits, oral addresses are considered unnecessary in a procedure which aims to avoid the tedious process involved in ordinary contentious civil claims. See: C.R.P.P.& I. CO. LTD. v. OBONGHA (2000) 8 NWLR (670) 751 at 762-3; NWADOBE v. NWOKEDI (1973) 3 ECSLR (2) 633. PER MOHAMMED LAWAL GARBA, J.C.A
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
Between
1. ODESCO INTERGRATED RESOURCES LIMITED
2. CHIEF OJOBI C. ODEH Appellant(s)
AND
INTERCONTINENTAL BANK PLC Respondent(s)
MOHAMMED LAWAL GARBA, J.C.A (Delivering the Leading Judgment): This appeal is from the decision of the F.C.T. High Court in Suit No. FCT/HC/CV/2009 delivered on the 10/6/09 under the undefended list procedure.
The Appellants were served with the Summons endorsed under the provisions of order 21 of the FCT High court civil Procedure Rules, (2004 Rules) taken out by the Respondent, on the 28/5/2009 with the 10/6/09 indicated as the return date thereof. On the return date, both parties were represented by Counsel but there was no record of a notice of intention to defend the suit accompanied by an affidavit as required under Order 21 Rules 3(1) of the 2004 Rules.
After announcing appearance for the Appellants Mr. Olorunsola Adeoye informed the High Court that he had just been briefed in the case and that parties had started negotiations to settle the matter out of Court. Learned Counsel then urged the High Court to grant the parties “grace” (an adjournment) “to explore the avenue for settlement” Thereafter, without more, the High court entered judgment in favour of the Respondent on the ground that in the absence of a notice of intention to defend the suit, it was bound to do so. Being aggrieved by the decision, the Appellants caused a Notice of Appeal dated the 12/6/09 to be filed on the same day against it. The Notice of Appeal was predicated on five (5) grounds of appeal from which three (3) Issues were formulated for determination in the Appellants’ brief of argument filed on the 1/1/09.
They are as follows:-
Issue One
“Whether the proceedings in the lower Court complied with Order 21 Rule 1 of the Rules of Court and if answered in the affirmative whether the Appellants had any opportunity to be heard when the learned trial Judge had before proceeding to enter the matter for hearing under the undefended list, satisfied himself that the Appellants had no defence to the action.”
Issue No. 2
“Whether the learned trial Judge was not bound to decide the Appellants’ Application for adjournment one way or the other before proceeding to deliver judgment in this suit.”
Issue No. 3
“Whether it is not mandatory to hear a suit placed in the Undefended list and whether such suit precludes the operation of Order 17 Rule 1 of the Rules of Court of the Federal Capital Territory (Civil Procedure) Rules 2004.”
For the Respondent, two(2) issues were raised from the grounds of appeal at paragraph 3.00 of the Respondent’s brief dated and filed on the 19/2/10, which has no pagination. They are thus.-
” (1) Whether the trial Court is not right to have entered Judgment in favour of the Respondent having regard to the fact that the Appellant did not file any Notice of Intention to Defend the Suit despite their been duly served with the Writ of Summons and supporting Affidavit.
(2) Whether the trial Court was not right to have entered Judgment in favour of the Respondent despite the provisions of Order 17 Rule 1 of the High Court of the Federal Capital Territory, Abuja Civil Procedure Rules, 2004.”
The briefs were adopted by learned Counsel as the submissions in support of their respective positions in the appeal at the trial hearing on 20/9/2010.
In identifying from which of the grounds of appeal the Appellants’ issues were distilled, learned Counsel had indicated that Issue No. 1 arose from ground 1, Issue No. 2 from ground 2, and Issue No. 3 from grounds 3 and 4 of the Notice of Appeal. It is clear that no issue was formulated from ground 5 contained on the Notice of Appeal by the learned Appellants’ Counsel. Though the Respondent’s Issue Number one was said in the Respondent’s brief to have been raised from grounds of appeal Nos. 1, 3 and 5 of the Notice of Appeal, it did not even slightly deal with the complaint of want of jurisdiction on the part of the High Court that is contained in ground of appeal No. 5. In effect therefore no issue can properly be said to have been formulated from ground No. 5 by any of the learned Counsel. The known position of the law is that a or any ground of appeal from which no issue was formulated for determination in an appeal, is deemed abandoned.
SPARKLING BREWERIES v. UBN (2001) 15 NWLR (737) 539; ICB (NIG.) LTD. v. ADEMUWAGUN (2005) 7 NWLR (914) 80 Because no issue was formulated from ground of appeal No. 5, it is hereby struck out for being abandoned.
Looking at the other grounds of appeal, the Appellants’ issues appear to be succinct on the complaints the Appellants have against the decision of the High Court. I therefore intend to consider the Appellants’ issues which have been adequately addressed in the Respondent’s brief, in the determination of the appeal.
As a reminder, the Appellants’ issue one is thus:-
“Whether the proceedings in the lower Court complied with Order 21 Rule 1 of the Rules of Court and if answered in the affirmative whether the Appellants had any opportunity to be heard when the learned trial Judge had before proceeding to enter the matter for hearing under the undefended list, satisfied himself that the Appellants had no defence to the action ”
After setting out a portion of the ruling of the High Court at pages 18 – 19 of the Record of appeal as well as the provisions of Order 21, Rule 1 of the 2004 Rules, learned Counsel for the Appellants had submitted that the only duty on the High Court in deciding whether to place a Suit under the provision of Order 21, Rule 1 (Undefended list) is to simply ensure and ascertain the existence of the following:-
(a)there is an application for the issue of the writ of summons.
(b)that the application is in respect of a claim to recover a debt or liquidated money demand.
(c) that the application is supported by an affidavit stating the grounds upon which the claim is based.
(d)an averment stating that in the deponent’s belief, the Defendant has no defence to the suit,
He said the entry of a Suit under the Undefended list is not automatic and the Court has to be satisfied that the requirements of Order 21 Rule 1 are met before the order for it to be placed on that list. The cases of A.I.B. v. PACKOPLAST (2001) 30 WRN 141 at 162, and OKEKE v. NICON HOTELS (1999) 1 NWLR (586) 216 at 222 were cited on the above submissions. According to learned Counsel, the rules relating to undefended list have been made rather technical so as to guarantee that justice is done to a Defendant whose liberty to defend the action has been somehow restricted. He relied on:
OLUBUSOLA STORES v. STANDARD BANK LTD. (1975) 4 SC 51; SANTORY C. LTD. v. ELABED (1998) 12 NWLR (579) 538 and AUBERGINE CO. LTD. v. HABIB BANK LTD. (2002) 4 NWLR (757) 338 at 352 for that proposition.
Furthermore, it was contended that the decision to place a suit under the Undefended list is an exercise of a judicial discretion which must be judicious. Reliance was placed on the case CHRISDON IND. CO. LTD. v. A.I.B. LTD. (2002) 8 NWLR (768) 152 at 186 and it was submitted that the High Court did not do that in the Appellants’ case because all that was done was after stating that the Respondent’s suit was filed under the Undefended list, the suit was entered for hearing on that list. Learned Counsel then argued that the consequence of non-compliance with the Rules of Court before the suit under the Undefended list was that there was no competent action before the High Court which as a result lacked the jurisdiction to adjudicate in the suit. The statement of Olagunju, JCA at pages 188-189 of CHRISDON IND. CO. LTD. v. A.I.B. LTD. (supra) and NWAKAMA v. IKO LOCAL GOVERNMENT (1996) 3 NWRL (439) 732 among other cases were relied on as supporting the position.
In the alternative, it was the submission of learned Counsel that even before the suit was entered for hearing under the Undefended list, the High Court had satisfied itself that the Defendants had no defence to the suit. That Order 21 Rule I of the 2004 Rules did not require that the Court be satisfied that Defendants had no defence before placing the suit under the Undefended list. After arguments which are not relevant to the point being canvassed, he said that the High Court’s mind is expected to be unclouded and free at the time of placing the suit in the undefended list so as to enable it be objective, dispassionate and fair in determining a notice of intention to defend if and when filed. It was further argued that in the Appellants’ case, the High Court had determined the suit in favour of the Respondent and against the Appellants even before it was entered for hearing under the undefended list thereby denying the Appellants the opportunity to present their case in breach of their right to fair hearing. The provisions of Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 were set out and several cases on the nature and consequences of the breach of the right to fair hearing were cited in the Appellants’ brief on the point.
Learned counsel for the Appellants then said though this court will not ordinarily interfere with the exercise of discretion by a trial Court, the law is that where the discretion was wrongly exercised this Court would interfere. Relying on inter alia, the cases of: UNILAG v. AIGORO (1985) 1 NWLR (1) and AZUMI v. PAN AFRICAN BANK LTD. (1996) 8 NWLR 462 at 472 we were urged to hold that the decision of the High Court appeal was based on a misconception of the provisions of Order 21 and resolve the issue one in Appellants’ favour.
I now turn to the Respondent’s submissions on the issue before a review of the submissions by the learned Counsel on the other two issues.
The learned Counsel for the Respondent had submitted on the issue that the High court had properly and correctly exercised its discretion in entering judgment in favour of the Respondent under the Undefended list He referred to Order 21, Rules 3(1) and 4 of the 2004 Rules and contended that where as the Appellants’ case a Defendant fails to deliver a notice of intention to defend the suit in compliance with the Rules of Court under the provisions of Order 21, then the High Court had only one duty on the return date, and that is to hear the suit as undefended and enter judgment accordingly in favour of the Plaintiff. As authorities for the submission, the cases of DALKO v. UBN PLC. (2004) 4 NWLR (862) 123 at 149; OKOKO v. UBE (2004) 17 NWLR (903) 647 at 657 and BEN THOMAS HOTELS LTD. v. SEBI FURNITURE LTD. (1989) 5 NWLR (123) 523 were relied on. Learned Counsel then said the law is trite that both the parties and the Courts are bound to obey the rules of Court as established in the cases of EZEANAH v. ATTA (2004) 7 NWLR 468 at 502 and CHRISLIEB PLC. V. OLAGBAJU (2004) 4 NWLR 342 AT 360. It was also submitted that though there is no requirement for the Court to be satisfied under Order 21 Rule 1, It was also submitted that though there is no requirement for the Court to be satisfied under Order 21 Rule 1, the observation by the High Court was at best an orbiter dictum and not the ratio decidendi of the judgment entered in favour of the Respondent. Furthermore, that the Appellants have not shown what injustice they had suffered by it since it is on record that they were duly served with the writ and supporting affidavit of the Respondent on the 28/5/09 but did not file a notice of their intention to defend the action. Relying on inter alia, the cases of EKE v. OGBONDA (2006) 18 NWLR (1012) 506 at NWLR (1012) 506 at 532-3 and N.D.I.C. v. SHERIFF (2004) NWLR (855) 563, it was submitted that where a party in a case was given an opportunity to be heard but chose not to take advantage of it, cannot later be heard to complain of denial of fair hearing. That the Appellants were given every opportunity to be heard by the timely service of the processes in the suit of the Respondent and cannot be heard to complain of breach of their right to fair hearing. We were urged to resolve the issue in favour of the Respondent.
The issue under consideration is entirely predicated on the provisions of Order 21, Rule 1 of the 2004 Rules and so it is expedient to set them out as a foundation for the determination of whether or not the High Court complied with them in the decision appealed against. They are as follows:-
“Order 21, Rule (1) Where an application in Form 1, as in the appendix is made to issue of a writ of summons in respect of a claim to recover a debt or liquidated money demand, supported by an affidavit stating the grounds on which the claim is based, and stating that in the deponent’s belief there is no defence to it, the judge in chambers shall enter the suit for hearing in what shall be the Undefended list.”
These provisions, which are in pari materia with similar provisions in many of the Civil Procedure Rules of States High Courts, are in very simple and straight forward language and should not present any difficulty in understanding and application. The wordings are so plain and clear that they do not admit of any ambiguity and the known primary duty of the Courts is to ascribe their ordinary grammatical meanings to them in the course of interpretation and application. It is not the duty nor has the Court any power to import any extraneous meaning into or export or exclude any plain meaning from clear and unambiguous words of a statute in the discharge of its interpretative function. See ADEWUNMI v. A.G. EKITI STATE (2002) 2 NWLR (751) 474; LUFTHANSA v. ODIESE (200) 7 NWLR (978) 34.
The plain purport of the above provisions is to provide for what is called the Undefended List procedure under Order 21. They require that where an application was made to the High Court for the issue of a Writ of Summons in respect of a claim to recover a debt or liquidated money demand which was supported by an affidavit stating out the grounds on which the claim is based and that in the Deponent’s belief, there is no defence to it, the Judge in chambers shall enter the suit for hearing in the Undefended list. The application which is to be in the Form 1 of the appendix to the 2004 Rules is for the issuance of a writ of Summons in all civil causes and matters to be initiated or commenced at the High Court.
However because the undefended procedure is peculiar and specifically provided to expeditiously dispose of claims which prima facie are straight forward and indisputable i.e. claims for recovery of debt owed or liquidated money demand, the provisions of the Rules of the High court, in this appeal, order 21 Rule 1 in their wisdom require that the application for the issuance of the Writ of Summons should be supported by an affidavit setting out clearly facts which constitute the grounds on which the claim/s is/are based and which state that in the deponent’s belief, there is no defence to the claims. Put another way, Order 21, Rule 1 requires that the writ of Summons must be accompanied by an affidavit which contains positive averments of the facts supporting the claims endorsed thereon and which also state the belief of the deponent of the affidavit that there is no defence to the claims, under the provisions, once the writ of Summons was accompanied by the affidavit in support of the claims endorsed thereon as stated above, then the Rules require that the Judge in chambers “shall enter the suit for hearing in what shall be the “Undefended List”. The use or employment of the word “shall” in an enactment or rules of Court undoubtedly makes it mandatory that provision or rule must be complied with or observed.
In ONOCHIE v. ODOGWU (2006) 2 SCNJ, 96 at 114, it was held thus:-
“shall is used to express a command or exhortation or what is legally mandatory”.
See also IFEZUE v. MBADUGHA (1984) SCNLR 40; OMOKEODO v. IGP (1999) 6 NWLR (607) 467. in these premises, the use of the word “shall” in any enactment would clearly indicate and reveal that the intention of the drafters or makers of the enactment is that the provisions in which it was employed are deliberately made legally mandatory, obligatory and compulsory to be obeyed, complied with and observed in the application of the enactment. Discretion in such circumstances would be outside the contemplation of such provisions and therefore completely excluded if the true intention of the makers is not to be frustrated and eventually defeated. The maxim and the law is “lit res magis valeat quam pereat” which means simply that the interpretation or construction of an enactment should ensure that the intention of the legislature is not frustrated or defeated. A.D.H. v. AMALGAMATED TRUSTEES (2007) ALL FWLR (392) 178, at 1834.
I am in no doubt therefore that by the use of the word “shall” in Order 21 Rule 1, a binding duty or obligation is imposed on, an exhortation or command was issued to the Judge in chambers to enter a suit for hearing on the undefended list once the writ of Summons issued in the Registry of the High Court and taken out by a Plaintiff is supported by an affidavit as required in the Rule. The issue or question of a discretion, choice or option for the Judge would not arise in the circumstances. It is to be noted that the provisions do not require a hearing from any of the parties, that is the Plaintiff who applied for the writ of Summons or the Defendant against whom the claims thereon were endorsed, before the suit is entered on the undefended list for hearing by the Judge. All that the Judge in chambers was required to do before entering the suit for hearing under the undefended list is to look at the claims endorsed on the Writ of Summons along with the depositions of facts contained in the affidavit supporting it and see that prima facie the claims are not frivolous or not maintainable by the facts disclosed in the affidavit. The learned Counsel for the Appellants is accordingly right that entering a suit on the undefended list is not automatic.
In addition, I agree with the learned Counsel for the Appellants that the decision to either enter a suit under the undefended list or not is one which necessarily involves the exercise of a judicial power by a Judge in chambers which confers the discretion to act one way or the other on the facts disclosed in the affidavit in supporting the application for the Writ of Summons. To that extent only, there exists a judicial discretion on the part of the Judge to see whether on their face, the facts deposed to in the affidavit do support and bear out the claims to which in the deponent’s belief, there is no defence. A hearing is consequently not envisaged before the exercise of that discretion which like all types of judicial discretions, the law requires that it be exercised both judicially and judiciously. Put simply, acting judicially imports the consideration of the interests of both sides and weighing them in order to arrive at a fair or just decision.
Judicious on its part means proceeding from or showing sound judgment marked by wisdom and good sense. See: ERONINI v. IHEUKO (1989) 2 NWLR (101) 46 at 60,
ACB LTD. v. NNAMANI (1991) 4 NWLR (186) 486.
So in relation to the undefended list procedure of deciding whether the facts deposed to in the affidavit do prima facie, support the claim/s endorsed on the writ and the belief of the deponent that there is no defence to them, the interest of the parties, wisdom and good sense are to be taken into account in the process of the decision. Whether or not the discretion was exercised judicially and judiciously can only be determined on the record of the exercise made by the Judge in chambers either on the writ of Summons or separately in the case file. Record of the exercise of the discretion whether to place or enter a suit on the undefended list or not should be made by the Judge in chambers and must form part of the record of proceedings in the case when eventually disposed of by the High court.
Because it is the initiating process or proceedings which decide whether or not a suit is entered on the undefended list for hearing, it is an integral and important part of the record of proceedings to be conducted in the case. A judicial discretion cannot properly be exercised without record showing clearly how the exercise was done. The High Court is a Court of record under the Nigerian Constitution and cannot or has no authority or jurisdiction to conduct judicial proceedings orally and without official record thereof.
Whether or not the claims would succeed at the hearing on the undefended list in which it is entered is not an issue for consideration at that stage and is not part of the requirements of the provisions of Order 21 Rule 1. The right to a fair hearing would be premature and not arise at that stage of entering a suit in the undefended list since there would be no hearing at all.
It may be recalled that the pith of the Appellants’ argument on the issue is that the High court did not comply with the provisions of order 21, Rule 1 on the ground only that there is no record to show the compliance. However, the learned Counsel has not demonstrated in the Appellants’ brief how the absence of the record of compliance had prejudiced the Appellants as regard the decision to enter the suit in the undefended list. I should point out that the days when parties would pick their ways through naked technical rules of procedure the breach of which does not occasion a miscarriage of justice are long gone and have sunk in to the limb of forgotten things. Judges who preside over causes and matters in their Courts are human and not omniscient robots which never deviate from a programmed course. They sometimes slip and make procedural mistakes but the law now is that the Appellate Courts take the view that not every mistake is fatal to the cause of justice and that only those shown to have affected the decision would amount to a miscarriage. NWOSU v. THE STATE (1990) SCNJ 97; OWHONDA v. EKPECHI (2003) 17 NWLR (849) 326. In the present appeal, the absence of the record of compliance with Order 21 Rule 1 in respect of the decision by the High Court to enter the Respondent’s suit in the undefended list is in the circumstances merely an irregularity which was not fatal to the competence of the suit.
The other point canvassed in the alternative by the learned Counsel for the Appellants is that the High Court had determined the Suit before the date fixed for hearing, because according to him, the High Court had held that it was satisfied that the Defendants had no defence to the suit. Throughout the Appellants’ brief of argument however no reference was made to the record of the appeal in support of the position. I have carefully perused the 26 page printed record of the appeal and did not come across a portion thereof which bear out the argument of Counsel.
The learned Counsel had at paragraph 4.03 on page 5 of the brief set out the opening paragraph of the High Court Judgment entered on the 10/6/09 the return date for the hearing of the suit entered on the undefended list. It is at page 18 of the printed record of appeal and as follows:-
“The Plaintiff commenced this suit on 04/03/09 under the Undefended List of this Court. Before the Court proceeded to enter the matter for hearing under its Undefended List, it has satisfied itself that the Defendants have no defence to this action, as required by the provisions of Order 21 Rule 1 of the Rules of this Court.”
As can clearly be seen, the above observation or statement by the High Court was made in the course of its judgment on the date fixed for the hearing of the suit on the undefended list. It was not made “even before the suit was entered for hearing under the Court’s Undefended List.”… as claimed by the learned Counsel at paragraph 4.21 on page 9 of the Appellants’ brief. That erroneous assertion came from a misconception of the peculiar provisions of Order 21 and the Undefended list procedure. Moreover, the High Court had after stating the position of the law on the effect of the absence of a notice of intention to defend the suit on the return date fixed for the hearing, found that it was satisfied that the Defendants (Appellants) had no defence to the Plaintiffs’ (Respondent’s) action. This shows that it was clearly acting in compliance with the Rules of the Undefended list suit.
It is on the basis of the erroneous assertion by learned Counsel that he went to town on the imagined breach or denial of Appellants’ right to fair hearing in the suit.
Learned Counsel for the Appellants did not challenge the record of the appeal which show that the Appellants were duly served with the writ of Summons along with the affidavit in support of the claims endorsed thereon and on which the 10/6/09 was clearly indicated as the return date for the hearing of the suit under the undefended list. The service of the originating processes on the Appellants was effected on the 28/5/09 as borne out by the record of appeal. From the record of the appeal, the Appellants were therefore afforded the opportunity of a hearing provided for under the Undefended list provisions which require that they react to the originating processes within a prescribed period. order 21 Rule 3(1) of the 2004 Rules makes provisions that:-
“where a party served with the Writ delivers to a Registrar within 5 days to the day fixed for hearing, 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.”
By the above provisions, the Appellants were required to deliver to the Registrar of the High Court within five (5) days to the day fixed for the hearing of the suit, a notice in writing that they intended to defend the action, together with an affidavit disclosing a defence on the merit. It is only if and when they did that that the High court would be in a position to consider whether or not to give them leave to defend on such terms as it may think fit and just. It should be noted that like the decision whether or not to enter a suit on the undefended list, the decision on whether to give or refuse leave to the Defendants to defend the suit is primarily and entirely made from the facts deposed to in the affidavit to accompany the notice of the intention to defend where filed in compliance with the Rules.
The peculiar nature of the Undefended list procedure is that the decisions to enter a suit on the undefended list or not and whether or not to give leave to defend the suit are based and predicated on the facts deposed to and contained in the respective affidavits of the Plaintiff and Defendants. Because oral submissions by parties or their learned Counsel cannot add any legal value or weight to the facts deposed to in such affidavits, oral addresses are considered unnecessary in a procedure which aims to avoid the tedious process involved in ordinary contentious civil claims. See: C.R.P.P.& I. CO. LTD. v. OBONGHA (2000) 8 NWLR (670) 751 at 762-3;
NWADOBE v. NWOKEDI (1973) 3 ECSLR (2) 633.
Order 21 Rule 4 of the 2004 Rules makes this clear when it provides that:-
“21.4. Where a defendant neglects to deliver the notice of intention to defend and an affidavit prescribed by Rule 3(1) or is not given leave to defend by the Court, the suit shall be heard as an Undefended and Judgment given accordingly.”
So where in the first instance a Defendant failed or neglected to file or deliver a notice of intention to defend together with an affidavit disclosing a defence on the merit, the above provisions say that the suit “shall be heard as an Undefended and Judgment given accordingly”. In such a situation like I have stated before now, there is no option opened to the High Court but to comply with the provisions which are mandatory and obligatory by the use of the word “shall” therein. This Court in the case of MALEY v. ISAH (2000) 5 NWLR (658) 651 cited in the Appellants’ brief also) at case 667 Omage, JCA had stated the position thus:-
“Therefore on the date fixed for hearing of an Undefended suit, the only business of the day is to proceed to give judgment if there is no defence”
Then at page 666 of the report he had said:
“To afford a Defendant or his Counsel a hearing under any guise before hearing a suit as an undefended suit is not in the spirit of Order 22, Rules 1 – 5.”
His Lordship was dealing with Order 22, Rules 1 – 5 of the Kaduna State High Court Civil Procedure Rules which are in pari materia with the 2004 Rules. See also BEN THOMAS HOTELS v. SEBI FURNITIIRE (supra):
EKULO FARMS LTD. v. UBN, PLC (2006) ALL FWLR (319) 895 at 920-1 (also cited in the Respondent’s brief).
On the return date for the hearing of the suit entered on the undefended list, the 10/6/09, it was not disputed that the Appellants as Defendants who were served with the writ of summons and affidavit in support thereof did not or had not filed or delivered a notice of their intention to defend the suit as required by Order 21 Rule 3(1).
In other words, by and as at 10/6/09 the return date fixed for the hearing of the suit on the undefended list, the Appellants had neglected to file or deliver the notice of intention to defend to the Registrar of the High Court as provided for in Rule 3(1) of Order 21. Put another way, when the suit came up for hearing in the undefended list on the return date, there was no defence delivered or filed by the Appellants to the suit.
Consequently the High Court in line with the authorities cited on the point earlier, had no option than to act in strict compliance with the mandatory provisions of Rule 4 of Order 2(1) by hearing the suit as an undefended and giving judgment accordingly. The High Court was on firm terrain and right when in its judgment it held thus.-
“It is settled law that on a date fixed for hearing in a matter entered under the Undefended List of the Court, the Court has only one duty to perform, which is examine the Notice of Intention to defend together with the affidavit in support filed by a Defendant to the action, to determine whether or not there is a prima facie defence to the action, and also to determine whether or not the matter should in the circumstances, be transferred to the General Cause List of the Court.
In the absence of such a notice, together with the affidavit, showing a defence to the action, as in the instant case, the Court is duty bound to proceed to give Judgment in favour of the Plaintiff without necessarily listening to further arguments by Counsel.”
What the High Court did was in accord and compliance with the provisions of its Rules on the undefended suit of the Respondent and so cannot be faulted on that account.
Perhaps I should say that the cases cited and relied by the learned Counsel for the Appellants on the Issue One do not support his submissions. In all the cases cited, the Defendants had delivered or filed notices of their respective intention to defend the actions as required by the Rules of the High Courts but were not given leave to defend, the suits were heard as undefended and judgments entered against which the aggrieved Defendants appealed. So the facts and circumstances of the Respondent’s case are materially different. In the result, I resolve the Appellants’ Issue One against them.
Next is the Appellants’ Issue 2 which is:-
“Whether the learned trial Judge was not bound to decide the Appellants’ Application for adjournment one way or the other before proceeding to deliver judgment in this suit”
Learned Counsel for the Appellants’ submission on the issue started with a reference to what he said was an application for an adjournment on the hearing date which appears at page 18 of the record of appeal. Relying on OGBANU v. OTI (2000) 8 NWLR (670) 582 at 590, he argued that a Court of law is bound to decide on every application before it one way or the other before it proceeds to deliver judgment. He maintains that it is the same position in suits heard under the undefended list and failure to decide an application before giving judgment will constitute a denial of fair hearing which will occasion a miscarriage of justice. The cases of:
CHRISDON IND. LTD. v. A.I.B. LTD. (supra) at page 178 and ADEBAYO v. OKONKWO (2002) 8 NWLR (768) 1 at 24 were cited by learned Counsel who urged us to hold that failure to rule on the Appellants’ Counsel application for adjournment before judgment constituted a denial of fair hearing.
The learned Counsel for the Respondent addressed the issue at paragraph 5.06 of the Respondent’s brief where he set out a portion of the High Court judgment at page 18 of the record of appeal and submitted that the High court had pronounced on the application by the learned counsel for the Appellants for an adjournment therein. He said that the High court had rightly exercised its discretion to refuse it since the Appellants’ Counsel did place enough materials to enable it do so in their favour.
I would easily agree with the learned Counsel for the Appellants, because he is correct, that as a general restatement of the law, whenever an application was made to the Court in a case it has the duty to decide or determine and pronounce on such application before delivery of a final decision in the case. See. NALSA & TEAM ASSOCIATES V. NNPC (1991) 8 NWLR (212) 652 AT 676; BRAWAL SHIPPING V. ONWADIKE (2000) FWLR (23) 1254; MAGNA MARITIME SERVICES LTD. V. OTESU (2005) ALL FWLR (270) 1995 AT 2012, in addition to the cases cited supra by learned Counsel.
As borne out by the portion of the record of appeal referred to by learned Counsel for the Appellant, I had at the beginning of this judgment stated that the learned Counsel who appeared for the Appellants on the date of hearing of the suit had urged the High Court to grant “us grace to explore the avenue for settlement which is already in progress within a short date.”
He had earlier informed that Court that as reason for the request, that he was just briefed in the case. In its judgment, the High court before proceeding to enter judgment in favour of the Respondent had stated at paragraphs 2 and 3 of page 18 of the record of appeal as follows:-
“The essence of commencing actions under the Undefended List of the Court is to ensure speedy disposal of such actions and to avoid the tedium of a full trial, in the circumstances.
It is on record that the Defendants were served with the originating processes and hearing notice of today’s proceedings on 28/05/2009.
Therefore if they were minded to defend the suit, they would have briefed counsel timeously. I am therefore unimpressed by learned counsel’s submissions that he was just briefed by the Defendants in the matter.”
Undoubtedly, the above introductory part of the High Court judgment was made in reaction to the request by the Appellants’ Counsel for an adjournment on the ground that he was or had just been briefed in the case. It is clear and so it speaks for itself. The High Court was not impressed by the reason for the request for an adjournment, refused it and proceeded with the hearing of the suit as undefended as provided under Rule 4 of Order 21.
The practical and real effect of the High Court’s action in the circumstances which cannot seriously be disputed is that it had determined the application for an adjournment by refusing it and proceeding with the hearing. Of course the law on practice and procedure is known that applications for an adjournment in any case are not granted as a matter of course or because it was not opposed by other parties in the case. Each application for an adjournment is considered on its own peculiarities which would determine whether it warrants being granted or refused by the Court. An adjournment is discretionary and not a right of any of the parties to the case:
NEW MGERIA BANK v. DENCLAG LTD. (2004) ALL FWLR (228) 606 at 659-60:
OKURINBOYE v. CO-OPERATIVE (2009) 2-3 MJSC 42; ACB LTD. v. AGBANYIN (1960) 5 FSC 19.
The High Court had clearly in the above circumstances, pronounced on the application for adjournment before it proceeded to enter judgment in favour of the Respondent even though it did not specifically say that the application was refused. The portion of its judgment set out above leaves no doubt for any serious and viable argument. Without any difficulty whatsoever I make the finding, for the reasons given above, that the High Court had decided the Appellants’ Counsel request/application for “grace” before it proceeded to enter judgment in favour of the Respondent.
Issue 2 is accordingly resolved against the Appellants.
The last Issue formulated by the Appellants’ Counsel for determination is,
“Whether hearing of a suit as Undefended under the Undefended list procedure precludes the application of Order 17, Rule 1 of the 2004 Rules.”
After setting out the provisions of Rule 4 of Order 21 again, learned Counsel merely repeated the arguments that there must be a hearing of the suit under the Undefended list even where the Defendant did not file or deliver a notice of intention to defend as required by Rule 3(1). He insisted that the High Court must scrutinize the affidavit in support of the Writ of Summons to see whether the facts therein support or can sustain the claims endorsed on the writ before entering judgment in favour of the Plaintiff.
It may be remembered that I had earlier pointed out that by the peculiar nature of Undefended list procedure, both the decisions to enter a suit under the undefended list initially and the decision to give judgment in the absence of a defence or notice of intention of defence on the date of the hearing are primarily predicated on the averments contained in the affidavit filed along with the application for the issue of the writ of summons. I also did say that neither of the two decisions would be made automatically without regard to the particulars of the facts set out in the affidavit which form the basis or foundation upon which the claims endorsed on the wit of summons were made. Because it is unnecessary to waste verbiage in repeating the arguments of learned Counsel on the point and my conclusion thereon, there is no more to be said on it here.
The alternative submissions of the learned Counsel for the Appellants on the issue are that the High Court in proceeding to judgment in the suit did not comply with the provisions of Order 17 of the 2004 Rules which he set out in the brief. It was his contention that the High Court had a duty, subject to the consent of the parties, to encourage settlement of any matter before it though he conceded that the use of the word “may” connotes a discretionary power. He once again set out the request to the High Court for “grace to explore the avenue for settlement.” which he said the learned Counsel for the Respondent did not controvert before that Court. We were then urged by him to hold that the exercise of the discretion by the High Court to enter judgment instead of encouraging settlement is a non-judicious exercise of a discretion as the Appellants were denied the opportunity to fight their case on the merit and prior to the conclusion of settlement. On the ground, he urged us to resolve the issue in favour of the Appellants.
For the Respondent it was submitted that the High Court was not under any compulsion to grant an adjournment under Order 17, Rule 1 since the reason for the request was that the learned Counsel for the Defendants (Appellants) had just been briefed in the case. Learned Counsel said the High Court in the circumstances exercised its discretion judiciously because there was no record that the parties had consented to settlement but only exploring avenue for settlement.
In the alternative, it was submitted that even if parties were exploring the avenue to settle, that did not stop the Appellants from complying with the mandatory provisions of Order 21 Rules 3 and 4. We were urged to resolve the issue in favour of the Respondent.
Once more, there is not much to be decided on this issue having regard to the arguments of the learned Counsel for the Appellants. It may have been observed that the learned Counsel for the Appellants has conceded that the provisions of Order 17 Rule 1 did not impose a duty or obligation on the High Court to apply them in all cases. He is right that the provisions only provide for and confer or vest the High Court with a discretionary authority to in appropriate cases, encourage settlement by the parties where and if they consented to do so. The provisions leave no doubt about that when they say thus:-
“Order 17.1. A Court or Judge, with the consent of parties, may encourage settlement of any matter(s) before it, by either
(a) Arbitration;
(b) Conciliation
(c) Mediation; or
(d) Any other lawfully recognized method of dispute resolution.”
Since the High Court did not exercise the discretion conferred or vested in it by the above provisions, there can be no proper complaint in respect of their application. The choice or option by the High Court not to utilize or use the discretionary authority granted or given to it by the provisions cannot therefore be the subject of a competent complaint since the High Court had the unfettered right to either exercise the discretion or not. If such unfettered right did not exist, then the authority vested or conferred thereby would turn to an obligation and duty and no longer a discretion. On the face of the clear provisions, such an argument would defy discernment, perspicacity or wisdom and should be regarded as unserious.
Furthermore, because the High Court did not exercise the discretion, the question of judicial or judicious exercise would be of no moment since it would not arise.
In addition, I have earlier in this judgment decided that by the provisions of Rule 4 of Order 21, when on the return date for the hearing of a suit entered on the undefended list a Defendant did not or had not filed or delivered a notice of intention to defend as prescribed by Rule 3(1), the High Court had no discretion but to hear the suit as undefended and give judgment accordingly. On the authority of the cases cited on the point, hearing of an undefended suit did not involve the taking of or hearing of oral addresses from the parties or their Counsel.
So whereas Order 21, Rule 4 imposes a legal duty or obligation on the High Court which is a command and therefore mandatory to be complied with, the provisions of Order 17, Rule 1 only confers or vest that Court with a discretion which was even subjected to the consent of the parties, to encourage settlement. Even common sense would tell that a command is forceful and directive whereas discretion is only permissive and optional. A duty or an obligation therefore takes precedence over discretion. In the above premises, the High Court was very right when it discharged the obligation and duty imposed on it by the provisions of Order 2(1), Rule 4 despite or better still, in spite of the discretion conferred under Order 17, Rule 1.
Having decided the issue I would like to say in passing that in appropriate and proper cases and circumstances, the attitude of the Courts has always been to encourage the amicable settlement of disputes or cases by the parties out of Court. The Supreme Court in the case of ABBEY v. ALEX (1999) 12 SC (Pt. II) 71 at 77, had this to say in that regard:-
“parties are entitled to settle or compromise all or any of the questions or disputes between them on any terms or conditions on which they agree even without the approval or sanction of the Court, or prior reference to the Court at any stage of pending proceedings, save in special cases or circumstances in which public policy or interest is involved The Court should encourage the practice.The case is also reported in (1999) 14 NWLR (637) 148.
So in the present appeal even without the discretion conferred on the High court under order 17, Rule 1, that court had and was seized of the inherent jurisdiction to encourage amicable settlement of disputes brought to it by the parties out of Court. Being an impartial arbiter in the resolution of the dispute/s between parties, it is even in the best interest of the court to encourage such amicable settlement out of court which would save a lot of very precious time and resource of the Court to be expended in a full trial of cases. It is common knowledge that the very tedious procedure of conducting and taking notes or making record of proceedings in long hand in all our Courts in the Country has continued to make congestion of cases unavoidable and inevitable. Therefore any move by the parties in the cases which would fast track the expeditious disposal of such cases by way of settlement out of Court would readily be encouraged by the Courts in appropriate cases.
In the result, the issue is resolved against the Appellants.
In the final result, with the resolution of all the three (3) Issues submitted by the Appellants for the determination in the appeal against them, the appeal is left without merit. It fails for that reason and is accordingly hereby dismissed.
Costs assessed at N30,000.00 are awarded in favour of the Respondent to the appeal.
ADAMU GALINJE, J.C.A.: I have read before now the judgment just delivered by my learned brother, Garba, PJCA, and I agree with the reasoning contained therein and the conclusion arrived thereat. The law is settled that on a return date in an undefended suit, the business of the Court is to proceed to deliver judgment if the Defendant fails to file a defence.
In the instant case, on the 10/6/09 which was the return date, the Appellants herein, who were the Defendants at the lower court did not file a notice of intention to defend the suit, despite the fact that they were served with the processes bearing the claims of the Respondents.
See BISONG V. EKPENYONG (2003) 5 NWLR (PT.812) 156; IKPONG V. UDOBONG (2007) 2 NWLR (PT.1017) 184.
For this reason and the well articulated reasons in the lead judgment, I too dismiss this appeal and abide by the order of cost made therein.
JIMI OLUKAYODE BADA, J.C.A.: I read before now the lead Judgment of my learned brother MOHAMMED LAWAL GARBA, JCA just delivered.
My Lord has painstakingly resolved all the issues raised in the Appeal. I also find the Appeal unmeritorious and it is dismissed by me.
Appearances
Kolawole Olowokere, with Samuel Ogunleye, and M.O. HenryFor Appellant
AND
F.N. FemiFor Respondent
