THE ATTORNEY GENERAL GOMBE STATE & ANOR v. ABDUL GAFARU YUSUF AND COMPANY NIGERIA LIMITED (2016)

THE ATTORNEY GENERAL GOMBE STATE & ANOR v. ABDUL GAFARU YUSUF AND COMPANY NIGERIA LIMITED

(2016)LCN/8106(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 19th day of January, 2016

CA/J/125/2007

RATIO

COURT; COURT’S DISCRETION; WHETHER THE DECISION AS TO WHETHER OR NOT A DEFENCE RAISES A TRIABLE ISSUE INVOLVES THE EVALUATION OF THE AFFIDAVIT EVIDENCE DEPENDS SO MUCH ON THE DISCRETION OF THE COURT.

The decision as to whether or not a defence raises a triable issue involves the evaluation of the affidavit evidence, and does not depend so much on the discretion of the Court.
See the following cases on these principles of law: UBA V Jargaba (2007) LPELR-3399(SC); UBA V Mode Nig Ltd (2001) 13 NWLR (Pt. 730) 335; China Geo Engineering Co. V Nambativ (2001) 2 NWLR (Pt. 698) 529; Calvenply Ltd V Pekab Int. Ltd (2001) 9 NWLR (Pt. 717) 164; Grand Cereals & Oil Mills Ltd V As-Ahel Int. Marketing & Procurement Ltd (2000) 4 NWLR (Pt. 652) 310; CCB (Nig) Plc V Samed Investment Co. Ltd (2000) 4 NWLR (Pt. 651) 19; Diamond Bank Nig Ltd V GSM Agro Allied Ind. Ltd (1999) 8 NWLR (Pt. 616) 558 IBWA Ltd V Unakalamba (1998) 9 NWLR (Pt. 565) 245; General Securities & Finance Co. Ltd V Obiekezie (1997) 10 NWLR (Pt. 526) 577. per. JUMMAI HANNATU SANKEY, J.C.A.

PRACTICE AND PROCEDURE: UNDEFENDED LIST; THE STATE OF THE LAW IN RESPECT OF MATTERS BROUGHT ON THE UNDEFENDED LIST

Clearly, the state of the law in respect of matters brought on the Undefended List has been repeatedly pronounced upon by our Courts of law such that it has since become trite. The one and only duty of a Court faced with opposing affidavits in a suit on the Undefended List is to determine whether a defence to the claim, whether on facts or law, is disclosed on the merit. Where the Court is convinced that there are issues which need to be explained and/or determined before the claim can be said to have been proved, then it is obliged to send the case to the General Cause List for evidence to be adduced and arguments to be proffered in proof of the claim. Where however, the defence is found to amount to nothing more than an attempt to evade meeting the obligations evident from the claim of the Plaintiff, then the Court is entitled, without much ado, to enter Judgment for the Plaintiff in terms of his claim. There is no further call for an adjournment for any other issue. per. JUMMAI HANNATU SANKEY, J.C.A.

COURT: JURISDICTION; THE IMPORTANCE OF JURISDICTION TO ANY ACTION
The law is trite that jurisdiction is the bedrock and life-blood of any action. Thus, any deficit in jurisdiction is fatal to an action no matter how well the proceedings were conducted. per. JUMMAI HANNATU SANKEY, J.C.A.

COURT: JURISDICTION; WHEN IS A COURT SAID TO BE COMPETENT TO ADJUDICATE UPON AN ACTION
A Court is said to be competent to adjudicate upon an action when a:
(1) It is properly constituted as regards the numbers and qualifications of the members of the Bench and no member is disqualified for one reason or the other;
(2) The subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction; and
(3) The case comes before the Court initiated by due process of law and upon fulfilment of any condition precedent to the exercise of jurisdiction. Any defect in the competence of the Court is fatal and the proceedings are a nullity as such defect is extrinsic to the adjudication.
See Madukolu V Nkemdilim (1962) 2 SCNLR 341; Skenconsult V Ukey (1981) 1 SC 6; Rossek V ACB Ltd (1993) 8 NWLR (Pt. 312) 382; & Araka V Ejeagwu (2000) LPELR-533(SC). per. JUMMAI HANNATU SANKEY, J.C.A.

JUSTICES:

JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria

SAIDU TANKO HUSSAINI Justice of The Court of Appeal of Nigeria

BIOBELE ABRAHAM GEORGEWILL Justice of The Court of Appeal of Nigeria

Between

1. THE ATTORNEY GENERAL GOMBE STATE
2. GOMBE STATE GOVERNMENT – Appellant(s)

AND

ABDUL GAFARU YUSUF AND COMPANY NIGERIA LIMITED – Respondent(s)

JUMMAI HANNATU SANKEY, J.C.A. (Delivering the Leading Judgment): This is an Appeal against the decision of the High Court of Gombe State delivered on the 20th July, 2005 in Suit No: GM/239/05.

By a Writ of summons dated 6th April, 2005, the Respondent herein, as Plaintiff before the Lower Court, claimed against the Appellants, as Defendants, the total sum N15, 550,923.37 (Fifteen Million Five Hundred and Fifty Thousand, Nine Hundred and Twenty three Naira, Thirty Seven Kobo) only being the amount owed them in respect of the construction of the Referral Hospital, Gombe, plus 10% interest per annum from June 1998 till final satisfaction of the debt. The Writ was supported by an affidavit of 14 paragraphs and three Exhibits. On 06-04-05, the Lower Court granted the ex-parte application of the Plaintiff and directed that the suit be placed on the Undefended List for hearing, and same be marked as such, pursuant to Order 22 of the High Court Civil Procedure Rules applicable to Gombe State. Thereafter, the case was set down for hearing on 28th April, 2005.

The Defendants were duly served with the Writ of summons and other Court

processes on the 20th April, 2005. By Order 22 Rule 3 (1) of the High Court Rules applicable to Gombe State, a party served with the Writ of summons and other processes under the Undefended List, who desires to be granted leave to defend the action is expected to deliver to the Registrar of Court not less than 5 days before the date fixed for hearing a notice of intention to defend together with an affidavit disclosing a defence on the merit. The Defendants, having been served the Writ on 20th April, 2005, however waited until 28th day of April, 2005 i.e. the date fixed for hearing in the matter, to file a motion on notice titled, “Notice of intention to defend/preliminary objection brought pursuant to Order 22 Rules (1) and (2) and Section 36 of the 1999 Constitution. Therein, they prayed for the following reliefs:
(1) That the writ of summons No. GM/239/2005 commencing this suit is initiated against the wrong parties/defendants.
(2) That the process is an abuse of Court process, as same was initiated before the leave of Court dated 6th day April, 2005 was sought and granted.
(3) That the

action in its entirely is statute barred.
(4) AND for any other order as the Court may deem fit to make in the circumstance.
The motion filed by the Defendants was heard on the 7th July, 2005. In the course of responding to arguments on the motion, Counsel to the Plaintiff raised an objection to the competence of the purported notice of intention to defend on the ground that it was filed out of the time provided in Order 22 Rule 3 of the Rules of Court, and that since there had been no application for an extension of time to file the said notice, same was invalid and therefore there cannot be said to be any defence to the action. Counsel thereafter asked the Court to enter Judgment for the Plaintiff as per the Writ of summons. In his response, Counsel representing the Defendants countered that there was no need to file a Notice of intention to defend within the stipulated time and that there was also no need to ask for an extension of time.

In ruling on the motion on 20th July, 2005, the learned trial Judge held that the purported Notice of intention to defend filed on the 28th April, 2005 was filed out of time;

and that having not sought for an extension of time within which to file the said Notice of intention to defend, there was nothing before the Court upon which to canvass arguments. He thereupon proceeded to enter Judgment in favour of the Plaintiff (Respondent herein) as per the claim in the Writ of summons. Dissatisfied, the Appellants filed an Appeal with the leave of this Court sought and obtained on 30th March, 2007, wherein they complained on two grounds.

On 20th October, 2015, when the Appeal was called up for hearing, A.K. Halilu Esq, State Counsel from Gombe State Ministry of Justice, adopted the Appellants Brief of argument filed on 29-01-15, but deemed filed on 02-02-15, as the Appellants arguments in the Appeal. He submits that the Appellants distilled issues one, two and three from Ground one and issues three and four from Ground two of the Grounds of Appeal. He urged the Court to allow the Appeal and set aside the Ruling of the Lower Court.

On his part, O.B. James Esq, learned Counsel for the Respondent, adopted and relied on the Respondents Brief of argument filed on 27-02-15 as the Respondents arguments in the

Appeal. He urged the Court to dismiss the Appeal for lacking in merit. In addition, Counsel submits that the proliferation of issues has rendered the Appellants Brief of argument incompetent. He thus submits that since there is therefore no valid Appellants Brief of argument before the Court, the Appeal should be struck out.

In view of the preliminary point of law taken by the Respondent in oral argument to which the Appellants Counsel stated that he had no response, it is apparent that having distilled a multiplicity of four issues from the two grounds of Appeal, the Appellants Brief of argument is fatally flawed. The law is trite that issues for determination must flow from the grounds of Appeal. An Appellant is therefore not permitted to raise issues in excess of his grounds of appeal.

Crafting four issues for determination which is more than the two grounds of appeal is not in line with the law relating to the formulation of issues for determination in an Appeal. It amounts to a proliferation of issues, which is not acceptable. The multiplicity of issues more than the grounds of Appeal is discountenanced. Consequently, the

issues so formulated are incompetent. This is what is known as the rule or principle against proliferation of issues in an Appeal. That being so, the Appellants Brief of argument is ex facie incompetent. See: Nwankwo V Yar’Adua (2010) LPELR-2109(SC); Okwuagbala V Ikwueme (2010) LPELR-2538(SC); Sogbesan V Ogunbiyi (2006) 4 NWLR (Pt. 969) 19; Unilorin V Oluwadare (2003) 3 NWLR (Pt. 808) 557; & Padawa V Yatau (2003) 5 NWLR (Pt. 813) 247.

Nonetheless, this issue having not been properly brought to the notice of the Court by way of a Notice of preliminary objection, but casually by way of oral argument, was certainly sprung on the Appellants. Therefore, in the interest of fair hearing and being a penultimate Court, I shall still proceed to determine the Appeal on its merits.

In arguing the Appeal, learned Counsel for the Appellants complains that the trial Court simply brushed aside and refused to determine or make specific findings on the Appellants preliminary objection challenging the jurisdiction of the Court to entertain the Respondents suit on the ground that the preliminary objection was filed out of the prescribed 5

days as required by the rules of Court. He submits that by the Court Order of 6th April, 2005 on the motion ex parte, the suit was placed on the Undefended List which, by Order 22 Rule 3(1) of the High Court (Civil Procedure) Rules of Bauchi State 1990, applicable to Gombe State. By this Rule of Court, the Court held that the Appellants are expected to file their notice of intention to defend five days upon being served with the Respondents writ of summons and the accompanying affidavit, and these by the Appellants admission in their supporting affidavit to the preliminary objection time had lapsed. Counsel however submits that contrary to the holding of the trial Court the Appellants notice of preliminary objection which was moved and argued before the Court is not that of the defence on the merit, as envisaged by the rules of Court, but a defence on the points or issues of law which seeks to challenge the competence of the trial Court to entertain the suit, same having been ousted by statute. He relies on Okonkwo V INEC (2004) NWLR (Pt. 854) 242 at 293. He submits that the preliminary objection challenged the competence of the trial Court to hear and

determine the suit which they contend was barred by Sections 18 and 42 of the Limitation of Action Law Cap 84 Laws of Bauchi State, 1991 applicable to Gombe State. He relies on UBA V Oki (1999) 8 NWLR (Pt. 614) 244 at 248; & Akinbode V Chief Registrar (2003) 3 NWLR (Pt. 808) 585 at 591. He therefore submits that the preliminary objection before the trial Court challenged the jurisdiction of the Court and was not a defence on the merit as envisaged by Order 22 Rule 3(1) supra.

Counsel submits that the issue of jurisdiction is fundamental and same can be raised at any stage of the proceedings in the Court of first instance or even for the first time in the Appeal Court. He relies on Okonkwo V INEC (2004) 1 NWLR (Pt. 854) 242 at 252; Oloba V Akereja (1988) 3 NWLR (Pt. 84) 508 at 520; Jiji V Abare (1999)1 NWLR (Pt. 58) 6 243 at 246; Attorney General of the Federation V Guardian Newspaper Limited (1999) 9 NWLR (Pt. 618) 187 at 201; Akegbejo V Ataga (1998) 1 NWLR (Pt. 534) 469 paras A-B Ratio 5; & Sani V Okene Local Government Traditional Council (2008) Vol. 164 LRCN 117 at 119 & 120. Counsel thus submits that it was erroneous for the trial Court to

refuse to determine and make specific findings as to whether the Court has jurisdiction to entertain the Respondent claim as challenged by the Appellants preliminary objection on the ground that the objection was filed outside the 5 days required to file the notice of intention to defend.

It is submitted that the issue of jurisdiction is fundamental and can be raised at any stage of a proceedings in the Court of first instance or even for the first time on Appeal. He argues that the mere fact that the Appellants motion of preliminary objection challenging the jurisdiction of the trial Court was filed outside the 5 days prescribed by the rules of Court for filing notice of intention to defend, does not in any way legally prevent the Court from determining and making a pronouncement on the objection.

In the instant case, Counsel submits that, the Appellants, having been served with the Respondents Writ of summons, filed a notice of preliminary objection challenging the jurisdiction of the trial Court to entertain the claim, a procedure that is legally permissible. He therefore submits that the trial Court erred and denied a fair hearing

to the Appellants. He relies on System Metal Ind. Ltd V Ehizo (2003) 7 NWLR (Pt. 820) 460 at 462. Counsel thus submits that the reason given by the trial Court for refusing to determine and make pronouncement on the Appellants preliminary objection to the jurisdiction of the Court cannot be justified and has occasioned a miscarriage of justice.

Counsel further argues that even though the interlocutory application of the Appellants which seeks to challenge the jurisdiction of the Court from hearing the substantive suit of the Respondent was moved and argued by both parties, the trial Court did not determine same or make a pronouncement on the merit or otherwise of the application. That instead, the Court proceeded to pronounce on and enter judgment on the substantive suit. He therefore submits that the trial Court both abandoned the duty placed on it to determine and make pronouncement on issues brought before it by a party, and suo motu decided on the substantive matter which was never canvassed at the interlocutory stage of the Appellants application. He relies on Globe Fishing Industries Limited V Folarin (1990) 11 SCNJ 56 at 63; Zekeri V

Alhassan (2002) 14 NWLR (Pt. 786) 52 at 59; ACB Plc V Obmiami Bricks & Stone (1993) 5 NWLR (Pt. 294) 399; & First African Trust Bank V Ezegbu (1993) 6 SCNJ 122. Accordingly, Counsel submits that the action of the trial Court in deciding and entering judgment on the substantive matter in the hearing of the interlocutory application of the Appellants is tantamount to the trial Court divesting itself of the jurisdiction and right of hearing the substantive claim of the Respondent. Finally, Counsel prays that the judgment of the trial Court be set-aside and the substantive suit of the Respondent dismissed for being statute barred, and to proceed to determine the motion on notice on the merit.

On his part, learned Counsel for the Respondent submits that, having regard to the facts and circumstances of this case, the learned trial Judge was right when he held that there was no valid/proper notice of intention to defend before the Court. This is so because being an action under the Undefended List procedure, the Defendants (now Appellants) are by Order 22 Rule 3 the Rules of the Court required to deliver to the Registrar, not less than 5 days before the

date set for hearing, their notice of intention to defend. That is to say, that there is a time limit which a notice of intention to defend is to be filed by any defendant upon whom a writ of summon had served. The time limit is not less than 5 days before the date fixed for hearing of the application. He contends that even though the Appellants were served the writ of summons on the 20-04-05, they took no step until the 28-04-05 when they filed their motion on notice titled “Notice of intention to defend/preliminary objection” praying the Court for some specific reliefs. He submits that the process filed on the 28-04-05 was certainly out of the time prescribed by the Rules, as the matter was fixed for hearing on the 28-04-05 and the Appellants were served with the writ of summons on the 20-04-05. Therefore the requisite 5 days lapsed on the 23-04-05, and anything filed thereafter is out of time. It is further submitted that the law is settled that where the law and or Rules of Court provide for a particular mode or specific period of doing an act o taken a step, same must be complied with and failure so to do renders such an action or step

invalid. What is more, that Order 22 Rule 3 of the High Court (Civil Procedure) Rules applicable in Gombe State is quite unambiguous and self explanatory. Counsel relies on the case of M.V. Arabella V NAIC (2008 NSCQR) 34 Vol. II 1091 at 1110.

Counsel further submits that the learned trial Judge was right in entering Judgment in favour of the Plaintiff because, although the defendants filed their purported notice of intention to defend out of time, they however had the opportunity of remedying the situation. This they would have done by applying for an extension of time as provided for in Order 21 Rule 3 (1) and (2) of the High Court) Civil Procedure) Rules applicable to Gombe State and ask that the process they filed out of time be deemed to have been properly filed. They however did not do so and Counsel was adamant in insisting that there was no need. It is submitted that the law is settled that a Court of Law cannot grant to a party what he or she has not asked for as the Court is not a Father Christmas. Consequently, Counsel submits that the learned trial Judge was right when he proceeded to enter judgment in favour of the Plaintiff based on the

facts that there was no valid notice intention to defend before the Court. Counsel therefore urged the Court to resolve these issues in favour of the Respondent and to dismiss the Appeal for lacking in merit.

Findings:
The Undefended List procedure is designed to secure quick justice and to avoid the injustice that is likely to occur when there is no genuine defence on the merits to a Plaintiffs case. The procedure is intended to abridge the hearing of a suit where the claim is for a liquidated sum. Put another way, the object of the rules relating to actions on the Undefended List is to ensure a speedy despatch of certain types of cases, such as those involving debts or liquidated money claims.

For an action to be transferred from the Undefended List to the General Cause List there must be a defence disclosed on the merit, and the details and particulars of the defence must be set out in an affidavit. It must not be a half-hearted defence or a defence which is merely fishing for skirmishes all over the place. Thus, no flimsy, frivolous or sham defence which is unearthed or

fabricated to prolong the hearing of the case or to play for time should be countenanced by the Court. Instead, the defence disclosed must be a real defence on the merit and not a caricature of it. Consequently, a defendants affidavit must condescend upon particulars and should deal specifically with the Plaintiffs claim and affidavit, and state clearly and concisely what the defence is, and the facts and documents to be relied upon in support. The affidavit must disclose facts which will, at the very least, throw some doubt on the case of the Plaintiff. Accordingly, a mere denial is devoid of any evidential value and will not suffice.

Procurement Ltd (2000) 4 NWLR (Pt. 652) 310; CCB (Nig) Plc V Samed Investment Co. Ltd (2000) 4 NWLR (Pt. 651) 19; Diamond Bank Nig Ltd V GSM Agro Allied Ind. Ltd (1999) 8 NWLR (Pt. 616) 558 IBWA Ltd V Unakalamba (1998) 9 NWLR (Pt. 565) 245; General Securities & Finance Co. Ltd V Obiekezie (1997) 10 NWLR (Pt. 526) 577.

Therefore, in the light of these principles of law set down in a plethora of cases, I have therefore thoroughly examined the affidavit evidence on both sides of the divide, and in particular the affidavit in support of the Court process captioned “Notice of intention to defend the action/preliminary objection.” The Plaintiff’s (now Respondent’s) claim is essentially as contained in paragraphs 3 to 12 of the affidavit in support of the claim (at pages 5-7 of the printed Record) as follows:
1. That sometimes late in 1991 the Plaintiff and the old Bauchi State Government entered into a contract for the construction of Lot 3 of the Gombe Referral Hospital.
2. That in the course of the execution of the contract, Gombe State was created.
3. That upon its creation

it assumed all rights and obligations under the contract and consequently began paying the Plaintiff for each Valuation Certificate submitted.
4. That in accordance with the agreement and practice, the Plaintiff submitted Valuation Certificate No. 17 (serial BA/138) in the sum of N12, 571, 056.08 (Twelve Million Five Hundred and Seventy One Thousand, Fifty Six Naira and Eighty Kobo) to the 2nd Defendant for payment on 20-11-1997. Annexed herewith and marked Exhibits 1 and 1A are copies of the Valuation Certificate and forwarding demand letter.
5. That the Plaintiff also submitted Valuation Certificate No. 18 (serial No. BA/140) in the sum of N2, 445, 708.32 (Two Million Four Hundred and Forty five Thousand Seven Hundred and Eight Naira and Thirty Two Kobo) on 3-6-1998. Annexed herewith and marked Exhibits 2 and 2A are copies of the Valuation Certificate and the forwarding demand letter.
6. …
7. That the total amount outstanding against the 2nd Defendant for the 2 Valuation Certificates and the 5% retention money is

N15, 550, 923.37 (Fifteen Million Five Hundred and Fifty Thousand, Nine Hundred and Twenty Three Naira and Thirty Seven Kobo) which the 2nd Defendant has refused and neglected to pay despite repeated demands.
8. That when all demands and entreaties failed to persuade the Defendants to pay, the Defendant instructed its Counsel, Messrs M.M. Nurudeen & Co to demand for payment.
9. That Messrs. M.M. Nurudeen & Co. wrote a demand letter dated 22-4-2002 to the Defendants. Copy of the demand letter is herewith attached and marked Exhibit 3.
10. That the Defendants still failed or neglected to pay this long outstanding debt despite repeated demands.

From the affidavit in support of the Notice of intention to defend/preliminary objection, the crux of the defence of the Appellants lies in paragraphs 6 and 7 of their affidavit (at pages 16-18 of the printed Record of proceedings), and it states thus:
6. That the contract agreement in respect of the subject matter of this suit was entered into between the Plaintiff and the defunct

Bauchi State Government, as deposed in paragraph 3 of the Plaintiffs affidavit in support of his writ:
(a) That the present Gombe State was created in October, 1996;
(b) That Exhibits 1A and 2A of the Affidavit in support of the Writ were issued on the 20th November 1997 and 3rd June 1998 respectively;
(c) That from June of 1998 to April 2005 when this Writ was issued and served on the Defendant is a period of about 7 years;
(d) That the Law requires this action to have been commenced against the proper parties earlier than 5 years from the date the certificates were due.
7. That in view of the foregoing the defendants have a proper defence on the merit to the suit.

However, without looking into the merit or otherwise of the defence offered by the Appellants in their affidavit, the case before the trial Court in the first place turned on whether or not there was a competent Notice of intention to defend before the Court. From the clear admission of the Appellants in their affidavit, the Notice of intention to defend was

filed in contravention of Order 22 Rule 3 of the Civil Procedure Rules applicable to Gombe State in that it was filed outside the five days circumscribed by the Rules. To compound matters, no application to extend time within which to file the requisite Notice was made to the Lower Court in order to regularise the process filed out of time. Therefore, relying on the celebrated case on the issue of competence of suits, and of the Court to entertain actions, Madukolu V Nkemdilim (1962) 2 SCNLR 341, the Notice of intention to defend, as well as the affidavit in support, was discountenanced. Thus, there effectively being no further defence to the action, Judgement was summarily entered for the Respondent/Plaintiff in the sum claimed by the Lower Court. Consequently, in my humble view, the sole issue to be determined by this Court is:
Whether, having regard to the facts and circumstances, there was a valid Notice of intention to defend before the Lower Court which should have been considered before it arrived at its decision.

Clearly, the state of the law in respect of matters brought on the Undefended List has been repeatedly

pronounced upon by our Courts of law such that it has since become trite. The one and only duty of a Court faced with opposing affidavits in a suit on the Undefended List is to determine whether a defence to the claim, whether on facts or law, is disclosed on the merit. Where the Court is convinced that there are issues which need to be explained and/or determined before the claim can be said to have been proved, then it is obliged to send the case to the General Cause List for evidence to be adduced and arguments to be proffered in proof of the claim. Where however, the defence is found to amount to nothing more than an attempt to evade meeting the obligations evident from the claim of the Plaintiff, then the Court is entitled, without much ado, to enter Judgment for the Plaintiff in terms of his claim. There is no further call for an adjournment for any other issue.

A consideration of the affidavit of the Appellants in support of the purported Notice of intention to defend without a doubt shows that serious issues touching on jurisdiction were raised. These issues were double-faceted as follows:
i. That the wrong parties were before the Court; and

ii. That the action was statute-barred.
The law is trite that jurisdiction is the bedrock and life-blood of any action. Thus, any deficit in jurisdiction is fatal to an action no matter how well the proceedings were conducted. On the face of it therefore, the grave issues of jurisdiction should ordinarily have been looked into by the Lower Court in determining the suit one way or another. However, there is no doubt that the Lower Court was faced with a catch 22 situation. This is because the Notice of intention to defend was filed in defiance of Order 22 Rule 3 of the Rules of the Lower Court, and no attempt at all was made to regularise the incompetent process. The question therefore is: should the Lower Court have closed its eyes to this irregularity and proceeded to act on the incompetent process suo motu Or, was the Lower Court right to have declined the invitation to act on a process that was not properly before it
A Court is said to be competent to adjudicate upon an action when a:
(1) It is properly constituted as regards the numbers and qualifications of the members of the Bench and no member is disqualified for one reason

or the other;
(2) The subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction; and
(3) The case comes before the Court initiated by due process of law and upon fulfilment of any condition precedent to the exercise of jurisdiction. Any defect in the competence of the Court is fatal and the proceedings are a nullity as such defect is extrinsic to the adjudication.
See Madukolu V Nkemdilim (1962) 2 SCNLR 341; Skenconsult V Ukey (1981) 1 SC 6; Rossek V ACB Ltd (1993) 8 NWLR (Pt. 312) 382; & Araka V Ejeagwu (2000) LPELR-533(SC).

From the state of the law, I am of the humble view that the principles enunciated in the case of Madukolu V Nkemdilim (supra) have become a double edged sword in this suit. This is because the issues raised in the purported Notice of intention to defend are substantive issues of law which could divest the Court of jurisdiction to entertain the action; whereas the point dwelt upon by the Lower Court to determine the suit summarily was based on the infraction of a rule of Court which touches on the jurisdiction to hear the

Defendants in respect of the incompetent process.

In the case of Okolo V UBN Ltd (1999) LPELR-2465(SC), similar facts played out. Therein, an objection was raised to the hearing of an Appeal on the ground that the conditions of the Appeal were not perfected within the stipulated period and no leave was sought to regularise same. The Respondent contended that this infraction attached to the entire root of the Appeal and borders on jurisdiction. Counsel further contended that the Appellant, instead of filing relevant processes before the Court of Appeal, orally applied to the Assistant Chief Registrar of the trial Court under the High Court Civil Procedure Rules, who then purported to extend time by a period of 20 days in favour of the Appellant. In addition, requisite fees were not paid, and thus the processes filed by the Appellant were not competent before the Court. On behalf of the Appellant, it was urged on the Court to ignore these defects in the Court processes which amounted to infractions against the rules of Court; and instead to do substantial justice and not to stand on technicalities, by punishing the litigants for the fault of Counsel. The

Supreme Court however held that in view of the fact that the Registrar lacked competence to extend time, the order purportedly made extending time to file the Court process is null and void, and so the process filed out of time, was incompetent. Further, that since payment of fees is a precondition to the Courts assumption of jurisdiction, the failure to pay fees renders a Court without jurisdiction to entertain the matter before it.

In the light of the above, I have not the slightest difficulty in accepting the submissions of the Respondent that the Notice of intention to defend, having been admittedly filed out of time with no attempt at regularising same, was an incompetent process which the Lower Court rightly ignored in the determination of the suit on the Undefended List.
Again in M.V. Arabella V NAIC (2008 NSCQR) 34 Vol. II 1091 at 1110, the Supreme Court held as follows:
Firstly, as to how Rules of Court are treated, it is now firmly settled that Rules of Court, are not mere rules, but they partake of the nature of subsidiary legislations by virtue of Section 18(1) of the

Interpretation Act and therefore, have the force of law. See the case of Akanbi & Ors V Alao & Anor (1989) 5 SCNJ 1 at 10. That is why Rules of Court, must be obeyed. This is because and this is also settled, that when there is non-compliance with the Rules of Court, the Court, should not remain passive and helpless. There must be a sanction, otherwise, the purpose of enacting the Rules, will be defeated… In other words, Rules of Court, are not only meant to be obeyed, they are also binding on all parties before the Court.”(Emphasis supplied)

It was always open to the Appellants to have sought for an extension of time as provided for in Order 21 Rule 3 (1) and (2) of the High Court (Civil Procedure) Rules applicable to Gombe State, and to ask that the said process filed out of time be deemed to have been properly filed. The Appellants Notice of intention to defend which incorporated issues of law was obviously filed out of time, and having not been regularised, is incompetent and void. See Chevron Oil Nig Plc V Zenon

Petroleum & Gas Ltd (2011) LPELR-3090(CA).

Now, Order 22 Rule 3(1) of the Rules of Court (supra) provides as follows:
If the party served with the writ of summons with affidavit as provided in Rules 1 and 2 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 defence on the merit, the Court may give him leave to defend upon such terms as the Court may deem fit.
Under this Rule as well as Rule 4 thereof, once the Defendant in an action on the Undefended List fails to deliver the Notice of intention to defend and an affidavit disclosing a defence on the merit, and is not let in to defend the suit, the Plaintiff is entitled to Judgment. This is so long as the affidavit evidence in support of the Plaintiffs Writ of summons shows that the Defendant has no defence to the action. See Ben Thomas Hotels Ltd V Sebi Furniture Co. Ltd (1989) LPELR-769(SC). In the instant case, the affidavit of the Respondent/Plaintiff in support of the Writ in question in conjunction with the Exhibits annexed

thereto, shows that the Defendants have no defence to the action. The relevant portions of the affidavit have already been referred to earlier in the body of the Judgment.
Finally, in Joel Okunrinboye Export Co. Ltd V Skye Bank Plc (2009) LPELR-1618(SC) 1 at 19, while interpreting a similar Rule to Order 22 Rule 3, i.e. Order 23 Rule 3(1) (2) & (4) of the High Court of Ondo State (Civil Procedure) Rules, the Supreme Court, per Onnoghen, JSC held as follows:
“… It is clear from the above that the filing of the Notice of intention to defend together with an affidavit disclosing a defence on the merit must be done on or before the date fixed for hearing the undefended suit, otherwise the defendant would be out of time in doing so. In other words, where a defendant fails or neglects to file the notice of intention to defend together with an affidavit disclosing a defence on the merit on or before the date fixed for the hearing of the case, he can only do so upon being granted an extension of time to that effect upon a proper application. This is so because on the date fixed for the

hearing, if no such notice and affidavit have been filed, Rule 4 Order 23 empowers the Court to enter Judgment in favour of the Plaintiff as the suit would be truly undefended” (Emphasis supplied)

In the above case, just as in this case, the Appellants had argued that their purported Notice of intention to defend the action together with an affidavit, which was filed out of time and without leave of the Court granting an extension of time to do so, is valid and ought to have been considered in deciding whether to enter Judgment for the Respondent or not. In firmly disagreeing with this argument, Onnoghen, JSC held further at page 20 as follows:
“I hold the firm view that they are wrong. To agree with their interpretation is to make complete nonsense of the provisions of Order 23 and the purpose it was designed to serve, that of speedy hearing of actions based on liquidated money demand or simple debt claims. It would amount to holding that a defendant would be granted licence to employ whatever delay tactic he can muster to frustrate the action of the plaintiff under the undefended list only to be allowed at the end of

the day to stroll in and defend the action when the intention is obviously to frustrate the plaintiff.

Therefore, it is in view of all the above that I resolve the sole issue in favour of the Respondent.

In the result, I find the Appeal entirely lacking in merit. It fails and is accordingly dismissed. Consequently, the Judgment of the High Court of Gombe State delivered on 20th July, 2005 in Suit No. GM/239/05 between Abdul Gafaru & Co. Ltd V Attorney General Gombe State & Another is affirmed. The sum of N50, 000.00 costs is awarded to the Respondent .

SAIDU TANKO HUSAINI, J.C.A.: I agree entirely with the reasoning of my Lord in the lead Judgment and the conclusions arrived at. I have nothing useful to add. I adopt same as mine.

BIOBELE ABRAHAM GEORGEWILL, J.C.A.: I have been affored in advance a draft copy of the judgment just delivered by my Lord JUMMAI HANNATU SANKEY, JCA., and I am in complete agreement with the reasoning and conclusions reached therein, which I hereby adopt as mine.

I have nothing more useful to add. I too

dismiss the appeal and shall abide by the consequential orders made in the lead judgment.

Appearances

A. K. Halilu, Esq. (State Counsel Gombe State Ministry of Justice) For Appellant

AND

O. B. James, Esq. For Respondent