SANTORY COMPANY LTD. & ANOR. V. BANK OF THE NORTH LTD.
In The Court of Appeal of Nigeria
On Tuesday, the 6th day of April, 2004
GEORGE ADESOLA OGUNTADE Justice of The Court of Appeal of Nigeria
ZAINAB ADAMU BULKACHUWA Justice of The Court of Appeal of Nigeria
ALBERT GBADEBO ODUYEMI Justice of The Court of Appeal of Nigeria
- SANTORY COMPANY LTD.
2. SASSINE SAYEGH Appellant(s)
BANK OF THE NORTH LTD. Respondent(s)
BULKACHUWA, J.C.A. (Delivering the Leading Judgment): The respondent, as plaintiff before the High Court of the Federal Capital Territory by a writ of summons dated 12/4/95 claimed against the defendant/appellant the following reliefs:
“The plaintiff claim jointly and severally against the defendants the sum of N1,245,539.30 being debt owed and due to plaintiff as at January 1995 as a result of credit facilities made available to the defendants on 20th August, 1993 which debt the defendant has failed, refused and/or neglected to settle, inspite of repeated demands.
Whereof the plaintiff claim as follows:
(1) The said sum of N1,245,539.30
(2) Interest at
(a) current bank rate up to date of judgment
(b) 10% per annum till settlement of the judgment debt.
Thereafter, on the 24/4/95, the plaintiff filed a motion ex-parte whereby he sought for an order of interim attachment of vehicle Mercedes Benz 200 with registration No. LCA 7401 TA and Honda Accord registration No. PL 19 KRV, property of the 2nd defendant, pending the final determination of the motion on notice.”
The application ex-parte was moved and granted on the 25/4/95. The case was also heard on the undefended list in the absence of the defendant and judgment entered as claimed by the plaintiff on the 18/5/95.
The defendant/appellant on the 25/5/95 filed an application before the lower court where he prays for:-
(a) an order setting aside the judgment of this court dated 18/5/95 in the sum of N1,245,539.30 plus interest against the defendant;
(b) an order staying execution of the said judgment pending the determination of this application;
(c) an order discharging the ex-parte order of this court dated 25/4/95 attaching 2nd defendant/applicants Mercedes Benz No. LA 7401 TA and Honda Accord No. PL 19 KRV on the ground that the order was obtained without giving the applicant a hearing and the motion on notice was not served and moved;
(d) an order releasing the said Mercedes Benz to the 2nd defendant/applicant the lawful owner of the car.
This application was heard on the 13/6/95 and in a ruling delivered on the 7/7/95 the lower court refused the application.
The defendant, being dissatisfied appealed to this court initially against the ruling of 6/7/95 which he filed on 12/7/95, the notice of appeal containing 8 grounds of appeal. Thereafter, he applied by an application filed on 14/11/01 before this court for extension of time within which to appeal against the lower court’s judgment of 18/5/95 which application was heard and granted on the 24/4/02 and the proposed notice and grounds of appeal dated 13/11/01 annexed to the application was deemed as duly filed and served.
There is only one sole ground of appeal which reads:
“The learned trial Judge erred in law in entertaining the suit as no leave was obtained to place the suit on the undefended list.”
In the appellants’ brief of argument filed on the 1/5/02, he identified the following issues from the above ground:
“(1) Whether the trial court had jurisdiction to entertain the matter?.
(2) Whether in all the circumstances of this case, the trial court was right in entering judgment in favour of the respondent?.”
The respondent in his brief of argument deemed filed on the 19/11/03, raised a preliminary objection. His contention is that there being one ground of appeal, the appellant should not have distilled two issues from the said ground of appeal. Submitting that it is now trite that there cannot be more issues for determination in appeal than the number of grounds raised, relying on UBN Plc. v. Dafiaga (2000) 1 NWLR (Pt. 640) 175; Omo v. J.S.C., Delta State (2000) 12 NWLR (Pt. 682) 444; (2000) 7 SC (Pt. 11) 1; Fabiyi v. Adeniyi (2000) 6 NWLR (Pt. 662) 532. He urged us to strike out issue two as formulated by the appellant which he submits did not arise from the only ground of appeal and is a violation of the provisions of Order 6 of the Court of Appeal Rules.
The appellants did not file a reply brief in reply to the preliminary objection raised by the respondent in his brief, nor were they in court on the 4/2/04, the date fixed for the hearing of the appeal. When their brief filed on 5/2/02 was deemed as argued as per the provision of Order 6 rule 9(5) of the Court of Appeal Rules, 2002.
The presumption here is that the appellant has no reply to the preliminary objection raised that he has formulated two issues from one ground of appeal amounting to proliferation of issues.
It has now become trite that issues for determination in a brief of argument must of necessity be limited by the grounds of appeal filed. While an issue can cover or traverse one or several grounds of appeal, issues for determination should not be more in number than the grounds of appeal on which they are based. It is incompetent to formulate more issues than the grounds of appeal filed.
In the instant case, the appellant formulated 2 issues out of a single ground of appeal. Only the first issue encompasses or covers the ground of appeal, the 2nd issue does not relate to the ground of appeal, it is incompetent and is therefore liable to be struck out Osinupebi v. Saibu (1982) 7 SC 104; Western Steel Works Ltd. v. Iron and Steel Workers Union of Nigeria (1987) 1 NWLR (Pt. 49) 284; Aja v. Okoro (1991)7 NWLR (Pt. 203) 260; Bakare v. L.S.C.S.C. (1992) 8 NWLR (Pt. 262) 641; Abisi v. Ekwealor (1993) 6 NWLR (Pt. 302) 643; Awoniyi v. Registered Trustees of Amore (2000) 10 NWLR (Pt. 676) 522; Gurara Securities & Finance Ltd. v. T.I.C. Ltd. (1999) 2 NWLR (Pt. 589) 29. In effect, the preliminary objection is upheld and issue 2 with all arguments based on it in the appellants’ brief is hereby struck out.
The appeal will now be determined on issue one which reads:
“Whether the trial court had jurisdiction to entertain the matter?.”
It is the contention of the appellant on this issue that the respondent failed to obtain the leave of the trial court to place the writ of summons on the undefended list as required by the provisions of Order 23 rule 1 of the High Court of the Federal Capital Territory (Civil Procedure) Rules. Submitting that the respondent, having failed to apply to place the suit on the undefended list has breached a condition precedent to the invocation of the lower court’s undefended list jurisdiction, and the court therefore lacks the jurisdiction over the matter, putting reliance on the cases of Cash Affairs Finance Ltd. v. Inland Bank (Nig.) Plc. (2000) 5 NWLR (Pt. 658) 568; Madukolu v. Nkemdilim (1962) 2 SCNLR 341; (1962) 2 All NLR 581.
The appellant further contended that since the suit was incompetent, every step taken thereafter is incurably defective and amount to a nullity, pointing out that where there is any defect in competence as in the present case, it is fatal to the proceedings and the whole proceedings is a nullity, however well conducted and decided citing the cases of Saude v. Abdullahi (1989) 4 NWLR (Pt. 116) 387; Obeta v. Okpe (1996) 9 NWLR (Pt. 473) 401; Madukolu v. Nkemdilim (supra); Sanusi v. Ayoola (1992) 9 NWLR (Pt. 265) 275; Cash Affairs Finance Ltd. v. Inland Bank (Nig.) Plc. (supra) as authorities.
The lower court also lacks jurisdiction over a party who has not been served with the court’s processes in a matter. That the court therefore lacks the competence to entertain the matter and the parties cannot by an act or omission confer jurisdiction on the court where it has none.
The respondent, in his brief, raised an issue out of the ground of appeal which is;
“Whether the suit was properly placed on the undefended list in compliance with Order 23 of the FCT High Court (Civil Procedure) Rules?.”
It is not dissimilar to the issue raised by the appellant, so I will consider it as it is.
The respondent submits on the issue that the action at the High Court was commenced under the due process of the law and was placed under the undefended list pursuant to Order 23 of the Rules of the court with leave of the Hon. trial Judge. Pointing out that the current position of the law is that it is not mandatory that the leave to place an action on the undefended list must be obtained only by motion first. That the use of the word may in Order 8 rule 2(1) of the High Court of the FCT (Civil Procedure) Rules is indicative that it is not mandatory that the application be brought by way of motion. It makes it permissive and not coercive, therefore, the non-compliance is not a defect as it is condoned under the rules of court. It is also his contention that there is no requirement under Order 23 (supra) that the application contained therein must be by way of a motion ex-parte.
That an affidavit filed along with the writ is sufficient to satisfy the court whether or not the matter should be placed under the undefended list, submitting that they have complied with the said requirement. That even if it were a requirement, that it is only an irregularity which could be cured by Order 2 rule 1 (supra) which he said the learned trial Judge had correctly dealt with the omission when raised by the defendant as an irregularity as per pages 26 – 29 of the records. Submitting further that the appellants did not suffer any injustice by the alleged omission to seek leave of the trial court before the issuance of the writ.
On non-service of process, it is the submission of the respondent that it is not a legitimate issue that can be raised on the sole ground of appeal, pointing out that an issue not found on a ground of appeal is irrelevant and incompetent. Further submitting that there was a finding by the trial court that there was service of all the processes on the appellants. Concluding that the case was properly placed on the undefended list.
For a better understanding of the facts that gave rise to this appeal, it is pertinent at this stage to reproduce the writ of summons and its supporting affidavit.
General form of writ of summons
In the High Court of Justice Federal Capital Territory
In the Federal Capital Territory Judicial Division
Suit No. FCT/HC/CV/151/95
Bank of the North Limited … Plaintiff
1. Santory Company Limited
2. Sassine Sayegh … Defendants
To Santory Co. Ltd. and Sassine Sayegh of P.O.Box 4390, Abuja in the …
You are hereby commanded that within eight days after the service of this writ on you, inclusive of the day of such service, you do cause an appearance to be entered for you in an action at the suit of plaintiff and take notice that in default of your so doing (sic) the plaintiff may proceed therein, and judgment may be given in your absence.
Dated this 12th day of April, 1995
By order of the court fees paid N : K
Fee – N300.00 Summons
Oath- N5.00 Service
Ann – N3.00 Transport
R/N – W825 905 Others
Date – 12/4/95 Total
Memorandum to be subscribed on the writ N.B. This writ is to be served within twelve calendar months from the date thereof, or if renewed, within six calendar months from the date of the last renewal, including the day of such date and not afterwards.
The defendant may enter appearance personally or by legal practitioner either by handing in the appropriate forms, duly completed, at the Registry of the High Court of the Judicial Division in which the action is brought or by sending them to the registrar by registered post.
Endorsement to be made on the writ before issue thereof.
The plaintiff’s claim is for:
The plaintiff claim jointly and severally against the defendants the sum of N1,245,539.30 being debt owed and due to the plaintiff as at January, 1995 as a result of credit facilities made available to the defendants on 20th August, 1993 which debt the defendant has failed, refused and/or neglected to settle inspite of repeated demands.
Whereof the plaintiff claims as follows:
(1) The said sum of N1,245,539.30
(2) Interest at,
(a) Current bank rate up to date of judgment
(b) 10% per annum till settlement of the judgment debt.
This writ was issued by Okechukwu Ajunwe Esq. of Kayode & Co. (Unity Chambers), agent for Bank of the North Limited legal practitioner for the said plaintiff who resides at Suite 1, Wuse Shopping Complex, Zone 3, Wuse, Abuja.
Endorsement to be made on copy of writ forthwith after service.
This writ was served by me at … on the defendant (here insert mode of service) on the … day of … 19… Endorsed the … day of 19 .
The Registry, High Court of …
In the … Judicial Division. A sufficient affidavit in verification of the endorsement on this writ to authorize the sealing thereof has been produced to me this … day of … 19 …”
“In the High Court of Justice Federal Capital Territory
In the Federal Capital Territory Judicial Division
Holden at Abuja
Suit No. FCT/HC/CV/151/95
Bank of the North Limited … Plaintiff/Applicant
1. Santory Company Limited … Defendants/
2. Sassine Sayegh Respondents
Affidavit in Support
I, Mohammed Salihu Lawal, Nigerian, banker of Bank of the North Limited, Suleja Branch do hereby make oath and say as follows:
1. That I am the Branch Manager at the Suleja Branch of the plaintiff bank and by virtue of my office and duties, I am familiar with the facts of this case.
2. The 1st defendant is a customer of the plaintiff with account No. 503588 at the said Suleja Branch.
3. That the 2nd defendant is the guarantor and the sole signatory of the said account No. 503588.
4. That in the course of operating the said account, the defendants obtained an overdraft facility from the plaintiff for N1,000,000.00 on the 20th, August, 1993.
5. That the overdraft was duly reflected in the defendants statement of account with the plaintiff and copies of which are periodically given to the defendant.
6. That as at 1st January, 1995, the statement of account of the plaintiff show a debit balance of N1,445,539.30 and the defendant confirmed this with an undertaking dated 10th January, 1995 attached hereto as exhibit “A”.
7. That the defendants had through a United Bank for Africa Plc. draft No. B/D 201-03412-6 drawn in its name repaid the sum of N200,000.00 (A copy of the said draft is hereby attached as exhibit ‘B’), leaving a balance of N1,245,539.30 outstanding.
8. That as at 10th April, 1995, the defendant is indebted to the plaintiff for the sum of N1,245,539.30.
9. That a copy of the plaintiff’s solicitor’s last demand notice to the defendants is shown to me and attached as exhibit ‘C’.
10. That I verily believe that the defendants has (sic) no defence to this action.
11. That I swear to this affidavit in good faith.
Sworn to at the Registry
High Court of Justice, Abuja
This 12th day of April, 1995
Commissioner for Oaths
This is the process that initiated the suit, giving rise to this appeal, before the trial court.
The appellant had maintained both in this court and before the trial court that the court lacked jurisdiction to determine the matter on these grounds:
“1. That the subject matter is not within the competence of the trial court as the agreement between the parties which gave rise to the suit was entered into at Suleja, Niger State;
2. That no leave was sought or obtained to place the writ of summons under the undefended list procedure;
3. That the defendant/appellant resides in Bauchi outside the jurisdiction of the court and no leave was sought or obtained from the trial court to serve him with the processes outside jurisdiction;
4. That the appellant was never served with the processes as at the time judgment was entered against him.”
While the last three grounds are procedural irregularities which are curable, the first ground is fundamental.
The jurisdiction of a court is vital and fundamental to a case, that lack of it can be fatal to the whole action, that is why it can be raised at any stage of a proceeding, even at an appellate stage. For where it is found that a court lacks jurisdiction, then the whole decision becomes null and void and of no effect. Odiase v. Agho (1972) 1 All NLR (Pt. 1) 170; Oloriode v. Oyebi (1984) 1 SCNLR 390.
In determining whether or not a court has jurisdiction in a matter, the following considerations are relevant:
1. The court should consider whether the subject matter of the case is within its jurisdiction in the case which prevents it from exercising its jurisdiction; and
2. Whether the case has been initiated before the court by due process of law and upon the fulfillment of any condition precedent to the exercise of its jurisdiction?.
See Madukolu v. Nkemdilim (supra).
The jurisdiction of a court is always determined by the claim of the plaintiff, for it is the claim that gives the court the legitimacy to look into a matter.
I had earlier in this judgment reproduced the plaintiffs/respondent’s writ of summon before the trial court. It is simpliciter a writ of summons and a supporting affidavit for a monetary demand against the defendant and an averment that he has no defence to the facts alleged.
By virtue of the provisions of Order 23 rule 1 of the High Court of the FCT (Civil Procedure) Rules, whenever an application is made to a court for the issuance of a writ of summons in respect of a claim to receive a debt or a liquidated money demand and such an application is supported by an affidavit setting forth the ground upon which the claim is based and stating that in the applicant’s view, 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 accordingly and enter thereon a date for hearing subject to the circumstances of the particular case.
It follows therefore that an application shall be made ex-parte to the court, and on due consideration according to the merit of the averment before the court, the court shall order that the writ of summons on the undefended list be issued accordingly. It is mandatory that the writ of summons be marked ‘undefended’ where a writ of summons is issued on the undefended list without the prior order of the court that it be so issued renders it incompetent. The Kaduna Division of this court per Obadina, J.C.A. faced with a similar situation in the case of Cash Affairs Finance Ltd. v. Inland Bank (Nig.) Plc. (supra) at page 587 held –
“The application for the writ of summons to issue on the undefended list must be by motion ex-parte, supported by affidavit. The Judge shall consider the application and make an order that the writ of summons be issued. A summons issued as an undefended suit without prior order of the court that the suit be entered on the undefended list is a nullity.”
In the instant case, the writ of summons was headed ‘writ of summons’ simply, there was no application by the plaintiff that the writ be entered on the undefended list in the records. All that the plaintiff applied for as shown on page 5 of the records on the 24/4/95 was for an interim attachment of the defendants’ vehicle.
There was no application as required by Order 23 rule 1 of the rules of the lower court to place the writ of summons on the undefended list, neither has the records shown that it was so placed. The purpose of the rules for the undefended list procedure is to enable a plaintiff obtain summary judgment without the necessity of proceeding to trial. That is to dispose within the shortest time cases which are uncontested. However, in evolving the said procedure, the rules must be strictly complied with, for it is trite that where any proceedings are initiated other than as provided for by the rules, such proceedings are null and void. Similarly, where a special procedure is prescribed for the enforcement of a right or remedy, departure from or non-compliance with the said procedure will be fatal to the enforcement of the right or remedy – Dangtoe v. Civil Service Commission, Plateau State (2001) 9 NWLR (Pt. 717) 132.
In the instant case, failure to endorse the writ of summons as undefended by the trial Judge rendered it incompetent.
I will mention another ground raised before the trial court which is not an issue before us, but which however touches on the jurisdiction of the trial court. By the provisions of S. 257(1) of the
1999 Constitution the jurisdiction of the High Court of the Federal Capital Territory is confined to matters that arose within the Federal Capital Territory and does not extend to other states. See also Order 10 rule 4(1) which provides:
“4(1) All other suits shall, where the defendant resides or carries on business or where the cause of action arose in the Federal Capital Territory, be commenced anddetermined in the High Court of the Federal Capital Territory, Abuja.”
The affidavit in support of the writ of summons deposed to by Mohammed Salihu Lawal, the Manager of the respondent’s branch in Suleja, Niger State, particularly paragraphs 1, 2, 3, 4, 5 & 6 thereof averred that the agreement which is the subject matter of this suit was entered into between the parties in Suleja, Niger State, outside the jurisdiction of the High Court of the Federal Capital Territory.
The venue in which a case may be heard and determined is an aspect of that court’s jurisdiction. It could either be territorial or geographical. Its being territorial can be cured by the transfer of the case to the correct judicial division but where it is filed in a wrong geographical venue, as in filing a case in the wrong state, no jurisdiction can be conferred on the wrong state for it will be non-existent no matter how well the case is conducted.
The respondent/plaintiff is the Bank of the North, Suleja Branch, the appellants/defendants had an account at the said branch and the overdraft of N1,000,000.00 was credited to the account of the. Appellants at the said Suleja Branch, so was the agreement to grant the overdraft facility to the appellants by the respondents. The venue for the determination of the case will be Suleja, Niger State. Whichever way one looks at it, the High Court of the FCT will not have jurisdiction in this matter.
For all I have been saying above, I find merit in this appeal and I hereby allow it.
The decision of the lower court of 18/5/95 is hereby set aside and in its place I make an order striking out the plaintiff’s writ of summons filed on the 12/4/95. I award costs assessed at N10,000.00 to the appellants.
OGUNTADE, J.C.A.: I entirely agree with the lead judgment by my learned brother Bulkachuwa, J.C.A. I would also allow the appeal .with costs as assessed in the lead judgment in favour of the appellants.
ODUYEMI, J.C.A.: I had the privilege of reading in advance, a copy of the judgment just read by my learned brother Bulkachuwa, J.C.A.
His Lordship has dealt exhaustively with all aspects of the only issue raised for determination in this appeal.
I adopt the reasonings and conclusions as mine.
I agree that the appeal is meritorious.
I too, allow the appeal.
I award costs of N10,000 in favour of the appellants ..
Appellants absent and unrepresentedFor Appellant
- O. Adesina (Mrs.)For Respondent