OROJI INTERNATIONAL NIGERIA LIMITED & ANOR v. UNITY BANK PLC
(2013)LCN/6001(CA)
In The Court of Appeal of Nigeria
On Monday, the 4th day of March, 2013
CA/S/144/2009
RATIO
JURISDICTION: IMPORTANCE IN A SUIT
Indeed, jurisdiction is “blood that gives life to the survival of an action in a court of law and without jurisdiction the action will be like an animal drained of its blood. It will cease to have life and any attempt to resuscitate it would be an abortive exercise.” See Bello JSC in UTIH AND OTHERS V ONOYIVWE (1991) 1 SC (PT 1) 61.PER TUNDE O. AWOTOYE, J.C.A.
JURISDICTION: WHEN CAN A CHALLENGE TO THE JURISDICTION OF A COURT BE RAISED
A challenge to the jurisdiction of a court can be raised at any time and in any manner. See EZEGBU V FATB LTD (1992) 1 NWLR (part 216) page 204 paragraph E, GOVERNOR ANAMBRA STATE V ANAH (1995) 8 NWLR (PT 412) 213.PER TUNDE O. AWOTOYE, J.C.A.
LOCUS STANDI: AN OBJECTION TO LOCUS STANDI IS ALSO AN OBJECTION TO JURISDICTION OF THE COURT
There is need to state also that an objection to locus standi of the plaintiff in an action is an objection to the jurisdiction of the court before which the action is, see EMEJI V OSUAGWU and ORS (2005) 12 NWLR (PT 939) 340 at 359, CENTRAL BANK OF NIGERIA V NAB KOTOYE (1994) 3 NWLR PT 330 p. 66 at 73. I shall view the sole issue in the light of the above.PER TUNDE O. AWOTOYE, J.C.A.
UNDEFENDED LIST PROCEDURE: THE COURT IS REQUIRED TO CONSIDER ONLY THE EVIDENCE IN THE AFFIDAVIT FILED BY THE DEFENDANT
The law is trite that in an action under the Undefended List Procedure, the court is required to consider only the evidence contained in the affidavit filed by the defendant in support of the Notice of intention to defend, see NKWO MARKET COMMUNITY BANK (NIGERIA) LTD V OBI (2010) 14 NWLR PART 1213 169. PER TUNDE O. AWOTOYE, J.C.A.
JURISDICTION: JURISDICTION RELATED MATTERS SHOULD BE ATTENDED TO FIRST
However, jurisdiction being a threshold issue where the jurisdiction of the court is being challenged even IN LIMINE, the court should take the objection to its jurisdiction first. In P.E LTD V LEVENTIS TRAD CO. LTD (1992) NWLR (PART 244) 675, Belgore JSC, (as he then was) had this to say on this;
“The importance of jurisdiction is the reason why it can be raised at any stage of a case, be it at the trial on appeal to the Court of Appeal or to this Court; a fortiori the court can suo motu raise it. It is desirable that preliminary objection be raised early on issue of jurisdiction; but once it is apparent to any party that the court may not have jurisdiction it can be raised EVEN VIVA VOCE as in this case. It is always in the interest of justice to raise issue of jurisdiction so as to save time and costs and to avoid a trial in nullity.”PER TUNDE O. AWOTOYE, J.C.A.
UNDEFENDED LIST PROCEDURE: DUTY OF THE PLAINTIFF UNDER THE UNDEFENDED LIST PROCEDURE
It is the duty of the plaintiff who comes under the undefended list procedure to show that the court entertaining his action has jurisdiction to do so. If he fails to do so, his prayer to be heard under the undefended list procedure must necessarily fail.PER TUNDE O. AWOTOYE, J.C.A.
JURISDICTION: THE COURTS SHOULD LOOK AT THE WRIT OF SUMMONS AND STATEMENT OF CLAIM IN CONSIDERING WHETHER OR NOT A COURT HAS JURISDICTION
It is trite law that where the jurisdiction of a court is challenged, the court is to look at the writ of summons before it as well as the statement of claim. See GAFARU V GOVERNMENT, KWARA STATE (2007) 4 NWLR (PT 1024) 375, ONUORAH V K.R.P.C. (2005) 6 NWLR (PT 921); NKOMA V ODILI (2006) 6NWLR (PT 977) 587.PER TUNDE O. AWOTOYE, J.C.A.
JURISDICTION: JURISDICTION CANNOT BE ASSUMED
Jurisdiction cannot be assumed even if challenged irregularly. See AMADI V NNPC (2000) 6 SC (part 1) 6.PER TUNDE O. AWOTOYE, J.C.A.
UNDEFENDED LIST PROCEDURE: NO STATEMENT OF CLAIM IS REQUIRED
In the case of undefended list procedure, no statement of claim is filed but an affidavit setting forth the grounds upon which the claim is based see, ORDER 22 Rule 1 of the Sokoto State High Court Rules. The affidavit must depose to facts from which the court can come to the conclusion that the defense has no defense (this to my mind includes facts showing that the court has jurisdiction to even proceed to hear the case in the first place). See NKWO MARKET COMMUNITY BANK (NIGERIA) V OBI (2010) 14 NWLR (PT 1213) 169 this the plaintiff did not do.PER TUNDE O. AWOTOYE, J.C.A.
JUSTICES
AHMAD OLAREWAJU BELGORE Justice of The Court of Appeal of Nigeria
TUNDE O. AWOTOYE Justice of The Court of Appeal of Nigeria
JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria
Between
OROJI INTERNATIONAL NIGERIA LTD & ANOR Appellant(s)
AND
UNITY BANK PLC Respondent(s)
TUNDE O. AWOTOYE, J.C.A. (Delivering the Leading Judgment): This is the judgment in the appeal filed by the appellants vide two Notices of appeal dated 31/3/2008 and 25/6/2008 against the judgment of Sokoto State High Court delivered on 31/3/2008. This appeal is based on the further amended notice of appeal deemed filed on the 26/7/2012.
The plaintiff (now the respondent) had instituted an action against the defendants (now appellants) claiming as follows:
“CLAIM: The plaintiff claim is for the sum of thirty million and forty nine thousand three hundred and sixty one Naira, thirty-three Kobo (N30,049,361.33k) being the outstanding debt balance on the defendant’s accounts with the plaintiff as at 16th November 2007 arising from loan and overdraft facilities advanced but the plaintiff to the defendants the same being overdue and unpaid despite repeated demands, plus interest at rate of 35% until judgment and thereafter at 10% until liquidation and the cost of the action.”
The action was brought under the Undefended List Procedure as provided for under ORDER 22 of the Sokoto State High Court Civil Procedure Rules.
On being served with the court processes the defendants filed conditional appearance and later filed notice of preliminary objection challenging the territorial jurisdiction of the trial court to entertain the suit and the locus standi of the plaintiff.
The learned trial Chief Judge after hearing the parties on the preliminary objection dismissed the objection and proceeded to give judgment in favour of the plaintiff interalia thus;
“The only defence put up by the 2nd defendant to the averments of the plaintiff bank is that they do not know the plaintiff. None of the specific averments of the plaintiff as stated earlier, no the exhibits to the supporting affidavit of the plaintiff were challenged or controverted by defendant. In view of the specific averments made which have supporting documents to prove the indebtedness of the 2nd defendant it is no defense for the 2nd defendant to simply state that he does not know the defendant. It is the law that to warrant this suit being transferred to the general cause list a defendant has to show by affidavit evidence a defense on the merit. See 022 R3(1) HCR 1993 see also Ikpong Anor V Obong 2007 22 WRN pg 84. As no such defense has been shown by the 2 defendants this suit has to be tried on the undefended list as filed by the plaintiff and judgment given upon it. Accordingly, judgment is hereby given in favour of the plaintiff Bank against the defendant severally in the sum of N30,049,361.33k plus interest at 35% until judgment and thereafter at 10% until liquidation. Costs of the suit is awarded at N87,520.00 against the defendants.”
The defendants being aggrieved against the decision filed a further amended notice of appeal containing 6 grounds of appeal. For clarity’s sake, I shall quote the grounds hereunder (excluding the particulars).
“GROUND 1
The learned trial Chief Judge erred in law by assuming jurisdiction when the High Court of Justice, Sokoto State lacked the territorial jurisdiction to entertain the Respondent’s suit.
GROUND 2
Learned trial Chief Judge erred in law in failing to strike out the suit for incompetence when the Plaintiff apparently lacked locus standi to bring the action.
GROUND 3
The learned trial Chief Judge misdirected himself in law by not leaving the suit to be transferred to the general cause list for trial.
GROUND 4
The learned trial Chief Judge misdirected himself in law and breached Appellants’ right to fair hearing when his Lordship held that deposition in the Appellants’ affidavit in support of the preliminary objection is not a defense on the merit.
GROUND 5
The learned trial Chief Judge misdirected himself when his Lordship held this at page 14 of the judgment:-
In paragraph 6, the 2nd defendant deposes as follows:
“That while our accounts was (sic) being operated at Birnin Kebbi, Kebbi State, we struck a settlement term with the said Bank of the North in the year 2003 and we are no more indebted to it as it (sic) being submitted that paragraph 6 reproduced above shows clearly that the defendant knows that Unity Bank PLC, the plaintiff in this suit, is one and the same with the former Bank of the North Ltd which the defendant admit having had business transaction and I so hold.”
GROUND 6
The learned trial Chief Judge erred when his Lordship gave judgment for the sum of N30,049,361.33 when the amount alleged in the supporting documents exhibited and attached is N16,325,790.00.”
After transmission of record of appeal each of the parties filed brief of argument.
The appellant’s brief of argument was filed on 8/10/2012. In the brief prepared by their counsel, ADEWOLE ADEBAYO, 6 issues were formulated for determination as follows: (see pages 4 – 5 of appellants’ brief).
On issue No 1, learned counsel for the appellants submitted that the Sokoto State High Court erred in law by assuming jurisdiction when it had none. He submitted that when a court of one state purports to exercise jurisdiction on a case outside its geographical boundaries and over areas which falls within the province of the court of another state it was always an exercise in futility. He relied on FBN V. TSOKWA (2004) 5 NMLR PT 866 at 271, NGIGE V. ACHUKWU (2005) 2 NWLR PT 909, P.123 at 141 and MADUKOLUM V NKEMDILI (1962) 2 SCNLR 341.
He submitted further that rules of court did not confer powers on the court or expand same but merely prescribed how statutory powers of the court were to be exercised. He cited RIVER STATE GOVERNMENT V SPECIALIST KONSULT 9 (2005) 7 NWLR PART 923 PAGE 145 AT 172.
Learned counsel stated that the learned trial Chief Judge ought to have taken into consideration that Kebbi State was a different state from Sokoto State. He added that the loan transaction was extra-territorial as the parties resided and carried on business in Kebbi State. He urged the court to resolve issue No 1 in favour of the appellants.
On issue No 2, learned counsel submitted that the respondent did not disclose the basis of its interest in the said loan and how it flowed from that third party entity to the claimant. He relied heavily on the Supreme Court case of GEORGE V UBA (1972) NSCC 317. Learned counsel contended that not only did the plaintiff not establish any nexus between itself and the Bank of the North Ltd, it did not aver any assignment of the said debt to it as an asset. He urged the court to resolve issue No 2 in favour of the appellants.
On issue No 3 learned counsel for appellants submitted that the learned trial Chief Judge erred to have breached the fundamental right to fair hearing of the appellants by not transferring the suit to the general cause list in view of the affidavit evidence filed in support of the preliminary objection. He stated that the learned trial Chief Judge did not balance the scale with the required jurisprudential delivery as it was not the intendment of the undefended list procedure to shut out the defence of the defendant or drive him away from the judgment seat before hearing. He cited IKA LOCAL GOVERNMENT AREA V MBA (2007) 12 NWLR PT 1049.
On issue No 4 appellants’ counsel submitted that the learned trial Chief Judge misdirected himself in law when he held that the deposition in the appellants’ affidavit in support of the preliminary objection was not a defense on the merit. Relying on NIWA VS SPDCN LTD (2008) 13 NWLR PART 1103 PAGE 48, he submitted that the merit of a case was the substance of the case as opposed to the technical or collateral matters. He submitted that the learned trial Chief Judge merely glossed over the defence without any attempt at understanding the import thereof, and this led to miscarriage of justice. He further cited FARO BOTTLING COMPANY LIMITED V OSUJI 2002 1 NWLR PART 748 PAGE 311, AMENDE V UBA (2008) 8 NWLR PART 1090 p.623.
On issue No 5, counsel for the appellants contended that the finding of the learned trial Chief Judge that the defendant knew that Unity Bank PLC was one and the same with the former Bank of the North Ltd was perverse and should be reversed. He referred to CROWN FLOUR MILLS LIMITED V OLOKUN (2008) 4 NWLR PART 107 PAGE 254 at 278 – 279, OJO V FRN (2008) 11 NWLR PART 1099 at 467, EGBA VS APPAH (2005) 10 NWLR PART 934, 464 at 480 – 481.
On issue No 6, learned counsel for the appellants submitted that the learned trial Chief Judge erred to have given judgment for the sum of N30,049,361.33 when the amount alleged (but not proved) in the supporting documents exhibited and attached was N7,350,000.00. He added that the trial court did not merely give the plaintiff/respondent what it wanted without any proof but also gave it bonus merely. He relied on the following cases; AUBERGINE COL. LIMITED V HABIB NIG. BANK LTD (2002) 4 NWLR PART 757 PAGE 338 at 352, STABILINI VISIONI LTD V METALUM LTD (2008) 9 NWLR PART 1092 PAGE 416.
Learned counsel further argued that the learned Chief Judge while relying heavily on Exhibits E and I dated 13/11/2013 as an admission completely geared the averments in paragraph 6 of the 2nd appellant/defendants’ affidavit to the effect that a settlement with the Bank of the North Ltd had been struck in 2003 and that the defendants’ were no longer indebted to the Bank.
He finally urged the court to allow the appeal, reverse the decision of the court below and strike out the suit or dismiss same for lack of locus standi.
The Respondent’s brief was filed on 5/11/2012. In the brief settled by Chief Steve U. Nwoke, for the Respondent three issues were formulated to wit:-
“1) Whether the High Court of Sokoto State had the jurisdiction to entertain the respondent’s suit (Ground 1).
2)Whether on the evidence before it the lower court was right to hold that the respondent was the same as Bank of the North Ltd (Grounds 2 and 5).
3)Whether the lower court was right in law in not transferring the suit to the General Court list and entering judgment for the respondent in the sum of N30,049,361.33k (Grounds 3, 4 and 6).”
On issue No 1, the learned counsel for the respondent submitted that the learned trial Chief Judge assumed jurisdiction over the matter. He referred the Order 10 rule 3 of the Sokoto State High Court Rules, and paragraph 9(d) of the affidavit in support of the writ of summons filed by the plaintiff to the effect that the defendants were ordinarily operating off Kware Road Gawon Nama Area, Sokoto. He submitted that the verve of an action depended on three alternatives:
a) where the contact was made,
b) where it was to be performed and
c) where the defendants resided.
He argued that the court hold that, the Sokoto State High Court, had jurisdiction to entertain the case.
On issue No 2, the learned counsel for the Respondent submitted that in view of the unchallenged averments in the plaintiffs’ affidavit, the lower court was right in law to hold that the respondent was the same Bank of the North Ltd.
Learned counsel referred to the counter-affidavit in support of the preliminary objection on pages 79-80 of the record (particularly paragraphs 4 and 5 of the counter-affidavit). He submitted that they are deemed to have been admitted having not been controverted. He referred to SBN PLC V CBN (2007) 44 WRN 37 at 53 and YAHAYA V FRN (2007) 23 WRN 127 at 144.
He also cited Section 123 of the Evidence Act to support his submission. On issue No 3, learned Respondents’ counsel argued that the lower court was right in law in not transferring the suit to the General cause list since Order 22 rules 3(1) and 4 of the Sokoto State High Court Rules was not complied with.
He submitted that the defendants neglected to file notice of intention to defend and so the learned trial Chief Judge had no option but to enter judgment. He relied on TAHIR V UDEAGBALA HOLDINGS LTD (2004) 2 NWLR (PT 857) 438; BENTHOMAS HOTELS LTD V SEBI FURNITURE LTD (1989) 5 NWLR (PT 123) 523; OGBANU V OTI & 3 ORS (2000) 8 NWLR (PT 670) 589 at 591.
He submitted further that the affidavit of the defendants did not disclose any defense on the merits as required by law. He cited UBA V JARGABA (2007) 43 WRN 1 at 15. He asserted that documents backing up the defense of the defendants ought to have been exhibited to the affidavit. He referred to TAHIR V UDEAGBALA HOLDINGS (supra).
He further referred to the exhibits exhibited in the affidavit in support of the writ of summons on the undefended list which supported the judgment sum awarded by the court.
Learned counsel finally urged the court to uphold the judgment of the lower court and dismiss the appeal.
I have carefully considered the contents of the record of appeal, and the submissions of learned counsel on both sides.
I am convinced that the sole issue involved in this appeal is “whether or not the learned trial Judge was right to have given judgment in favour of the plaintiff.” I shall consider this appeal in the light of this issue as formulated by me.
Indeed, jurisdiction is “blood that gives life to the survival of an action in a court of law and without jurisdiction the action will be like an animal drained of its blood. It will cease to have life and any attempt to resuscitate it would be an abortive exercise.” See Bello JSC in UTIH AND OTHERS V ONOYIVWE (1991) 1 SC (PT 1) 61.
A challenge to the jurisdiction of a court can be raised at any time and in any manner. See EZEGBU V FATB LTD (1992) 1 NWLR (part 216) page 204 paragraph E, GOVERNOR ANAMBRA STATE V ANAH (1995) 8 NWLR (PT 412) 213.
There is need to state also that an objection to locus standi of the plaintiff in an action is an objection to the jurisdiction of the court before which the action is, see EMEJI V OSUAGWU and ORS (2005) 12 NWLR (PT 939) 340 at 359, CENTRAL BANK OF NIGERIA V NAB KOTOYE (1994) 3 NWLR PT 330 p. 66 at 73. I shall view the sole issue in the light of the above.
Under the provisions of Sokoto State High Court Civil Procedure Rules ORDER 22 Rules 1, 3 and 4, it is provided thus:
“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 defense thereto, the Court shall, if satisfied that there are good grounds for believing that there is no defense 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.
3.-(1) If the party served with the writ of summons and affidavit as provided in Rules 1 and 2 hereof delivers to the Registrar not less than 5 days before the date fixed for hearing a notice in writing that he intends to defend the suit, together with an affidavit disclosing a defense 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 pleading or proceed to hearing without further pleadings.
4. Where any defendant neglects to deliver the notice of defense and affidavit prescribed by rule 3 (1) or is not given leave to defense 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.”
In other words, when a plaintiff comes to court under the Undefended List Procedure under Order 22 Rule 1 of the Rules.
“1) The court, if satisfied that there are good grounds for believing that there is no defense there to enter the suit for hearing and mark the writ of summons accordingly and also enter a date for hearing.
2) The party to be served shall, not less than 5 days before the hearing date, deliver to the Registrar a notice in writing that he intends to defend the suit together with an affidavit disclosing a defense on the merit.
3) Where the above is not complied with the suit shall be heard as an undefended suit and judgment given thereon without calling upon the plaintiff to summon witness before the court to prove his case formally.”
The plaintiff (now respondent in this appeal) had seemingly complied with the provision of ORDER 22 Rule 1 of the Rules, and the necessary processes were served on the defendants (now appellants). However, instead of delivering a notice of intention to defend supported with affidavit disclosing the defense on the merit not less than five days before the hearing date, the defendants through their counsel filed Notice of Preliminary Objection praying the court to dismiss the action for lack of jurisdiction. The law is trite that in an action under the Undefended List Procedure, the court is required to consider only the evidence contained in the affidavit filed by the defendant in support of the Notice of intention to defend, see NKWO MARKET COMMUNITY BANK (NIGERIA) LTD V OBI (2010) 14 NWLR PART 1213 169. However, jurisdiction being a threshold issue where the jurisdiction of the court is being challenged even IN LIMINE, the court should take the objection to its jurisdiction first. In P.E LTD V LEVENTIS TRAD CO. LTD (1992) NWLR (PART 244) 675, Belgore JSC, (as he then was) had this to say on this;
“The importance of jurisdiction is the reason why it can be raised at any stage of a case, be it at the trial on appeal to the Court of Appeal or to this Court; a fortiori the court can suo motu raise it. It is desirable that preliminary objection be raised early on issue of jurisdiction; but once it is apparent to any party that the court may not have jurisdiction it can be raised EVEN VIVA VOCE as in this case. It is always in the interest of justice to raise issue of jurisdiction so as to save time and costs and to avoid a trial in nullity.”
In the light of the above, I hold that the defendants were right to have raised the preliminary objection as they did and the learned trial Chief Judge was right to have considered the preliminary objection.
Was the preliminary objection of any moment? The preliminary objection was on two grounds as can be gathered from the submissions of learned counsel for the defendants on page 81-82 of record of appeal.
1) That the defendant was resident in Kebbi State and the suit ought to have commenced in Kebbi State.
2) that there was no privity of contact between the plaintiff and the defendants as the defendants did not operate any account with plaintiff, i.e. UNITY BANK PLC, but with BANK OF THE NORTH LTD.
In considering the first ground of the objection recourse has to be made to the various processes served on the defendants and which have not been controverted. References have to be made to paragraph 9(d) of the affidavit in support of writ of summons on the Undefended List (see page 50 of the record of appeal). It reads;
“that the defendants were ordinarily operating off Kware Road Gawon Nama Area Sokoto where the 2nd defendant resides.”
Again, the affidavits of service on the defendants on pages 34-36 of the record of appeal showed that the defendants’ address was at No 15 Kware Road, Sokoto where they were served with the relevant court process on 28/12/2007.
In fact, the contention that the defendants did not live in Sokoto only cropped up at the proceedings during the submission of counsel. The defendants had opportunity to controvert the averments in the plaintiff’s affidavit that they lived in Sokoto, but did not. I therefore, agree with the submission of learned counsel for the respondent that the objection to the jurisdiction of the court on this ground is of no moment.
The other ground of objection to the jurisdiction of the lower court is on lack of privity of contract. I have carefully gone through all the processes filed by the plaintiff (now respondent) at the lower court. The supporting affidavit filed in support of the writ of summons is on pages 49 – 50 of record of appeal. Apart from the title of the case which is, UNITY BANK PLC AND OROJI INTERNATIONAL LTD AND ALHAJI MUHAMMAD DODO OROJI, there is nothing in the affidavit and the documents exhibited linking Bank of the North Ltd to Unity Bank PLC.
What is the relationship between Bank of the North Ltd and Unity Bank PLC in connection with transaction before the court? It is the duty of the plaintiff to establish his claim. See TITILOYE ORS V OLUPO & ORS (1991) 7 NWLR (PT 205) 519.
In GEORGE V UBA (1972) NSCC 568, the plaintiffs instituted an action against the defendants, claiming payment of money owed to the plaintiff by the defendant based on their averment that they were ‘successors’ to the British and French Bank Ltd who had actually granted the loan to the defendant. They did not plead the assignment, neither did they adduce any evidence in proof of the assignment of assets and liabilities. The learned trial judge held in favour of the plaintiff.
But on appeal to the Supreme Court, it was held that it was not shown what sort of agreement was reached which could have transferred to the plaintiff bank the debt which the defendant was supposed to owe the British and French Bank and so the trial judge erred in holding that the assignment was proved.
I must state at this juncture that I am not unmindful of the fact that the plaintiff in its counter affidavit to affidavit in support of objection, on page 79 of record of appeal deposed as follows;
“4) To the knowledge of all including the defendants, the former Bank of the North Ltd is presently known as Unity Bank PLC.
5) That the charge followed the order of the Federal High Court in sort No FHC/C5/54/2006 made on the 2nd March 2006 which order this court has taken judicial Notice in several other cases”
I am of the humble view that this should have been in the affidavit filed initially in support of the writ of summons with a copy of the court order attached. This is too fundamental to be swept under the carpet. The plaintiff failed to do so.
As it is, the defendants have shown that they have a good defense to the action, the learned trial Chief Judge ought not, in my respectful view, to have invoked the provision of ORDER 22 Rule 4 of the Sokoto State High Court Civil Procedure Rules to give judgment in favour of the plaintiff. Rather, the learned trial Judge should have transferred the suit to the general cause list and ordered the parties to file their pleadings to afford the plaintiff opportunity to prove that the court had jurisdiction.
It is the duty of the plaintiff who comes under the undefended list procedure to show that the court entertaining his action has jurisdiction to do so. If he fails to do so, his prayer to be heard under the undefended list procedure must necessarily fail.
It is trite law that where the jurisdiction of a court is challenged, the court is to look at the writ of summons before it as well as the statement of claim. See GAFARU V GOVERNMENT, KWARA STATE (2007) 4 NWLR (PT 1024) 375, ONUORAH V K.R.P.C. (2005) 6 NWLR (PT 921); NKOMA V ODILI (2006) 6NWLR (PT 977) 587.
Jurisdiction cannot be assumed even if challenged irregularly. See AMADI V NNPC (2000) 6 SC (part 1) 6.
In the case of undefended list procedure, no statement of claim is filed but an affidavit setting forth the grounds upon which the claim is based see, ORDER 22 Rule 1 of the Sokoto State High Court Rules. The affidavit must depose to facts from which the court can come to the conclusion that the defense has no defense (this to my mind includes facts showing that the court has jurisdiction to even proceed to hear the case in the first place). See NKWO MARKET COMMUNITY BANK (NIGERIA) V OBI (2010) 14 NWLR (PT 1213) 169 this the plaintiff did not do.
Even after the preliminary objection had been raised by the defendant, the plaintiff ought to have not only deposed to the fact that there was a decision on the issue of jurisdiction, he ought to have attached a certified true copy of the enrolment of order or judgment of the court to this effect to the process filed see YUSUF & ORS V TOLUHI (2008) 14 NWLR (PT 1107) 237.
Having failed to do this, the learned trial Judge was in my respectful view wrong to have heard the matter under the undefended list and proceeded to judgment.
I resolve the sole issue as formulated by me in favour of the appellants. This appeal succeeds.
I shall invoke the powers conferred upon this Court under Section 15 of the Court of Appeal Act 2004 (as amended) to order as follows;
1) The judgment and orders in Suit No SS/86/2007, of the court below are hereby set aside.
2) The Suit is hereby transferred to the general cause list to be heard by another Judge as it is remitted back to Sokoto State High Court for reassignment by the Chief Judge of the State. Parties are to bear their
respective costs.
AHMAD O. BELGORE, J.C.A.: I have read, in draft, the judgment just delivered by my learned brother, TUNDE O. AWOTOYE, J.C.A., and I agree with his reasoning and conclusions. I do not wish to add anything to it.
I also allow the appeal and abide by the consequential orders contained in the judgment, including the order as to costs.
JAMES SHEHU ABIRIYI, J.C.A.: I had the privilege to read in draft the judgment just delivered by my learned brother Tunde O. Awotoye, JCA. He has dealt with all the issues in the appeal. I have nothing more to add. I agree with him that the appeal be allowed. I too allow it. I abide by all the consequential orders made in the judgment.
Appearances
Adewole Adebayo, Esq.For Appellant
AND
Steve U. NwokeFor Respondent
