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ALHAJI UMARU MOHAMMED BABA
HABIB NIGERIA BANK LTD
COURT OF APPEAL
14TH DECEMBER 2000
15 WRN 145
BEFORE THEIR LORDSHIPS:
ISA AYO SALAMI, JCA (Presided)
RABIU DANLAMI MUHAMMED, JCA (Delivered the leading judgment)
MAHMUD MOHAMMED, JCA
Suleiman Ibrahim – for the appellant
Wole Ogunbiade – for respondent
ACTION – Commencement of action – condition precedent thereto – attitude of court thereto.
COURT – Undefended list procedure – decision to place a suit on the undefended list – nature of
COURT – Commencement of action – condition precedent thereto – absence of – effect on competence of court.
JUDGEMENT AND ORDER – Jurisdiction of court – lack of – proper order to make.
JURISDICTION – Jurisdiction of court – determination of
JURISDICTION – Jurisdiction of court – lack of – whether to dismiss or strike out action.
PRACTICE AND PROCEDURE – Commencement of action – action under undefended list – how commenced under Order 22 Rule 1 of Kaduna High Court (Civil Procedure) Rules 1987 – requirements of
PRACTICE AND PROCEDURE – Commencement of action – where condition precedent exists – non compliance – effect of
PRACTICE AND PROCEDURE – Jurisdiction of Court – where court lacks jurisdiction – proper order to make.
PRACTICE AND PROCEDURE – Undefended list decision to place a suit thereunder – nature – whether judicial.
PRACTICE AND PROCEDURE – Undefended list procedure – Issuance of Writ or Summons thereunder – need to be by motion – requirement of Order 22 Rule 1 of Kaduna State High Court (Civil Procedure) Rules 1987 – compliance therewith – effect of
STATUTES – Application under Order 22 Rule 1 of the High Court of Kaduna State (Civil Procedure) Rules 1987 – meaning of
RABIU DANLAMI MUHAMMAD, J.C.A. (Delivering the leading judgment):
The plaintiff’s claim (who is now the respondent in this court) at the lower court, which was initiated under the undefended list, pursuant to Order 22 Rule 1 of the Kaduna State High Court (Civil Procedure) Rules,
1987 is for:
“1. The sum of N1,257,420.15 being the debt outstanding and due in favour of the plaintiff from the defendant at January 31, 1998.
After hearing arguments from the counsel of both parties, the learned trial judge ruled that:-
“On the whole the material depositions as to the claim of the plaintiff having not been countered in any material particular it follows that the claim must be taken as true. The end result is that the claim of the plaintiff succeeds as per Order 22Rule 4 High Court Rule 1987.
I enter judgment for the plaintiff against the defendant in the sum of N1,257,420.15 with 21% interest rate per annum from 1st February, 1998 until the entire debt is fully liquidated accordingly.”
Dissatisfied with this decision, the defendant (now the appellant) appealed to this court upon three grounds of appeal. The grounds of appeal are:-
PARTICULARS OF ERROR
“i. The suit was marked “UNDEFENDED LIST” without the requisite order of the court as required by Order 22 Rule 1 of the High Court of Kaduna (Civil Procedure) Rules, 1987.
ii. The suit was placed on the undefended list and hearing conducted on that score without due compliance with the Rules of Court.
iii. The learned trial judge erred in law in awarding interest on the sum claimed by the respondent in the writ of summons.
Interest is not liquidated claim to be awarded under the undefended list.
Briefs of argument were filed and exchanged in accordance with the Rules of the Court. Two issues were formulated by the appellants for the determination of the appeal. The issues are:-
“1. Whether having regards to the express provisions of Order 22 Rule 1 of the High Court (Civil Procedure) Rules 1987 of Kaduna State, the registrar of the High Court was competent to have unilaterally placed this suit in the undefended list without the order of the presiding judge directing him to do so.
The appellant also abandoned grounds of appeal Nos. B and C of the notice of Appeal. We are therefore left with only one ground of appeal. The respondent on the other hand identified only one issue for determination viz:-
“Whether the court below lacked jurisdiction to entertain the suit as it did.”
Considering that there is only one ground of appeal and the circumstances of this appeal, I believe that a single issue is sufficient for the determination of the controversy in this appeal i.e:-
“Whether the case before the lower court was properly brought under the undefended list.”
It was submitted on behalf of the appellants that the procedure under order 22 Rule 1 of the Kaduna State High Court (Civil Procedure) Rules required a plaintiff seeking to recover a debt or any liquidated money demand to first file an application supported by affidavit disclosing a potent case which in his belief, the defendant has no defence. The application supported by an affidavit, it was contended, must be consistent with Order 8 Rule 1 of the said rules i.e. the application must be brought by way of a motion. It is also submitted that before a suit is placed under the undefended list, the judge must make judicial pronouncement after looking at the merit of the plaintiff’s case in his affidavit, and if satisfied, order that the suit be placed under the undefended list. It was also submitted that the provision of Order 22 Rule 1 must be strictly complied with and that the respondent have not complied with the provision of the said rule because the respondent only wrote a letter to the registrar urging him to issue a writ of summons in the undefended list and that the writ of summons was issued and marked “undefended list” by the registrar.
It was also submitted that the rule required the application to be made to a court and that “court” means a judge and not a registrar. It was contended that a registrar is incompetent to look at the merit or otherwise of the case in order to issue a writ of summons under the undefended list. The decision to place a suit under the undefended list is a matter for judicial exercise of discretion which must be exercised judicially and judiciously by the judge. The function cannot be delegated to the registrar. In support the following authorities were cited: Nwakama v. Iko Local Government of Cross River State (1996) 3 NWLR (Pt. 439) 732. The court was then urged to follow its decision in Maley v. Isah (2000) 5 NWLR (Pt. 658) 651 and Cash Affairs Finance Ltd. v. Inland Bank (Nig.) Plc (2000) 5 NWLR (Pt. 658) 588.
In the respondent’s brief it was submitted that the lower court had jurisdiction to entertain the claim because the respondent had complied with the conditions for commencement of the suit in the High Court. The respondent had applied for a writ of summons under Order 5 Rule 1 and had satisfied the provisions of Order 22 Rule 1 because its application for a writ of summons was supported by an affidavit. It was argued that Order 22 Rule 1 cannot be isolated from order 5, which is the general provision governing writ of summons and to argue that Order 22 is distinct from order 5 will create confusion. It was then submitted that in interpreting a statute, it is necessary to read the statute as a whole to achieve harmony among its parts. It then follows that Order 22 Rule 1 should be read together with the provisions of Order 5 Rule 1 as stated in Awolowo v. Sarki (1966) 1 All NLR 178 and Akaighe v. Adama (1964) 1 All NLR 317. It is also contended that “application” contemplated in order 22 Rule 1 is the application provided in Order 5 Rule 1 and the court should not stretch the meaning of the word “application” beyond what Order 5 intended and that the court should be guided by the heading of order 8 in interpreting “application” as used in the circumstances of that order. For the interpretation of Order 5 Rule 1 and Order 23 Rule 1 and order 8 we were referred to the unreported decision of Jos Division of this court in Barmani Ventures Ltd. v. Kings Foam and Chemical Industries Ltd Appeal No. CA/J/64/95 delivered on 11/3/96. It was also submitted that the case of Nwakama (supra) is distinguishable from this case in that is our present case the judge of the lower court directed the registrar to place the suit under the undefended list. In addition the judge fixed a date for the hearing of the suit.
It was also argued that assuming, without conceding, that the respondent did not comply with Order 22 Rule 1, the non-compliance should be regarded as an irregularity as was decided in the following cases:- Texaco (Nig) Plc v. Lukoko (1997) 6 NWLR (Pt. 510) 651 and Kossen (Nig) Ltd v. Savannah Bank of Nigeria Ltd (1995) 12 SCNJ 29 and Odua Investment Co. Ltd. v. Talabi (1997) 7 SCNJ 600. It was submitted that the appellant by filing his notice of intention to defend made the lower court and the respondent to believe that he had waived the non-compliance with the provisions of the rules and was proceeding with the suit inspite of the non-compliance and thus substituted himself to the jurisdiction of the court below. The appellant cannot be heared to complain about non-compliance with the rules. Ariori v. Elemo (1983) 1 All NLR 1. Also the appellant should have raised timeously and before taking any step in the action, any objection he had to the action. It is submitted that it is now too late for the appellant to do so, especially when he has not suffered any injustice. Ayanwale v. Atanda (1988) All NLR 24; Fawehinmi v. N.B.A (No. 1) (1989) 2 NWLR (Pt. 105) 494 and Madukolu v. Nkemdilim (1962) All NLR 587. The respondent then discussed the decisions of this court in Maley v. Isah (supra) and Cash Affairs Finance Ltd v. Inland Bank (supra) and submitted that those cases were decided on their peculiar facts and circumstances and that the circumstances of the said cases are not the same with the case on hand. We were urged to dismiss the appeal and hold that the respondent has complied with the Rules of the Court below.
Order 22 of the Kaduna State High Court (Civil Procedure) Rules, 1987 stipulates the Procedure to be followed in instituting a suit which should be placed under the undefended list. Order 22 Rule 1 specifically provides:-
“1. Whenever application is made to a court for the issue of a writ of summons in respect of a claim to recover a debt or liquidated money demand and such application is supported by an affidavit setting forth the grounds upon which the claim is based and stating that in the deponent’s belief there is no defence thereto, the court shall, if satisfied that there are good grounds for believing that there is no defence thereto, enter the suit for hearing in what shall be called the “undefended list” and mark the writ of summons accordingly, and enter thereon a date for hearing suitable to the circumstance of the particular case.”
It could be seen that from the provisions of the above rule entry of a suit in the undefended list is not automatic. There are certain conditions precedent to be complied with and the court must be satisfied that there are good grounds for believing that there is no defence to the claim before entering the suit in the underfended list. Also the requirements of the said rule are clear and unambiguous. Before a suit could be put in the undefended list, the claim must be a debt or liquidated money demand and there must be an application to the court supported by an affidavit setting forth the grounds upon which the claim is based. From the wordings of the rule, the application envisaged is the normal application made in a judicial proceeding in accordance with the Rules Order 8 of the Kaduna State High Court (Civil Procedure) Rules deals with interlocutory applications and motions generally. It provides:-
“1. Interlocutory applications may be made at any stage of an action.
2 i. Where by these rules any application is authorised to be made to the court or a judge in Chambers to (registrar), such application may be made by motion.
The combined effect of Order 8 Rule 1 and Order 22 Rule 1 is that where a party desires that he should be issued with a writ of summons under the undefended list, the application must be made by an ex-parte motion. See: Maley v. Isah (2000) 5 NWLR (Pt. 658) 651 at 664 where Mahmud Mohammed JCA exhaustively discussed the provisions of the said Order 8 Rule 1 and Order 22 Rule 1 and came to the following conclusion:-
“Therefore the application to the court for the issuance of a writ of summons under the undefended list in Order 22 Rule 1 is to be made by a motion ex-parte to the court. In fact the very fact that it is clearly stated in Rule 1 of Order 22 that “such an application is supported by an affidavit setting forth the grounds upon which the claim is based shows quite clearly that since the application is to be supported by an affidavit, the fact that it has to be by way of a motion as prescribed by Order 8 Rule 1 to 3 earlier quoted in the ruling is obvious”.
I respectfully agree with the above pronouncement. See also Cash Affairs Finance Ltd. v. Inland Bank (Nig) Plc (2000) 5 NWLR (Pt. 658) 588 where this court considered the said two orders and arrived at the same conclusion.
I will now consider the procedure followed by the respondent to determine whether or not the provisions of Order 22 Rule 1 have been complied with. By a letter dated 23rd day of March, 1998 addressed to the registrar of the lower court, the respondent applied for the issuance of a writ of summons on the undefended list. The application reads:-
“IN THE HIGH COURT OF JUSTICE OF KADUNA STATE
IN THE KADUNA JUDICIAL DIVISION
HOLDEN AT KADUNA
SUIT NO. KDN/KAD//98
HABIB NIGERIA BANK LIMITED – PLAINTIFF
ALAHAJI UMARU MOHAMMED BABA – RESPONDENT
High Court of Justice,
APPLICATION FOR WRIT OF SUMMONS ON THE UNDEFENDED LIST ORDER 22 RULE 1 OF THE HIGH COURT (CIVIL PROCEDURE) RULES, 1987
Please cause a writ of summons to issue on the undefended list at the instance of the plaintiff against the defendant upon the following terms:
Dated in Kaduna this 23rd day of March, 1998.
WOLE AGUNBIADE ESQ,
PP Hali Chambers.
Turaki Ali House,
(5th Floor – 1F 104)
3 Banta Road,
FOR SERVICE ON THE DEFENDNAT
Alhaji Umaru Mohammed Baba,
A 28 GARBA JA ABDULKADIR ROAD,
On 21st April 1998, the registrar minuted to the judge as follows:
Papers a, b, c are submitted for your approval as counsel for the plaintiff wants the case to be placed on the undefended list,”
The judge minuted back:-
Place on the undefended list for H. Parties should be served for H on 4/5/98 Reg. ensure service.
The question now is, is submitting the application to the judge for approval and the granting of the approval by the judge sufficient to satisfy the requirements of Order 22 Rule 1? It is my opinion that where the application to place the suit under the undefended list was not made by a motion supported by an affidavit but by a written note by the registrar to the judge for approval cannot be said to have complied with the requirements of Order 22 Rule 1.
In Maley v. Isah (supra) it was stated at page 664 that:-
“Indeed a close examination of Order 22 Rule 1 reveals quite plainly that the decision to place a case on the undefended list of the court is essentially a judicial decision which must be taken judicially and judiciously in a judicial proceeding which is capable of being scrutinised from the record of the court by any appellate court in order to determine whether or not that discretion of the trial court was exercised judicially and judiciously in accordance with the rules of the court.”
From the record of proceedings there is nothing to show how the discretion of the lower court was exercised or the materials used to place the case under the undefended list. It was contended on behalf of the respondent that since the appellant has filed notice of intention to defend and taken steps in the proceedings he has waived the issue of non-compliance with the rules and submitted to the jurisdiction of the court. It was also contended that even if there was a procedural defect in the proceedings before the lower court the defect should be regarded as mere irregularity and not an issue that goes to the jurisdiction of the court. The above contentions are misconceived because where a statute provides for the fulfilment of conditions before an action is
commenced, failure to fulfil the condition or conditions precedent will render the entire action a nullity. See: Saude v. Adbullahi (1984) 4 NWLR (Pt. 116) 387.
Any defect in the competence of a court renders the proceedings before it a nullity because a defect of competence is extrinsic to the adjudication. A court is competent when, inter alia, any condition precedent to the exercise of its jurisdiction has been fulfilled: Madukolu v. Nkemdilim (1962) 1 All NLR 587. Also where there is a non-compliance with a stipulated pre-condition for setting the legal process in motion any suit instituted in contravention of the condition is incompetent and the court is also incompetent to entertain the suit. See Provisional Council, Ogun State University v. Makinde (1991) 2 NWLR (Pt. 175) 613 at 618.
I therefore hold that the provisions of Order 22 Rule 1 of the Kaduna State High Court (Civil Procedure) Rules, 1987 have not been complied with. The conditions precedent before a suit could be placed under the undefended list have not been satisfied. This renders the suit incompetent and the court is equally incompetent to entertain the suit. The trial is therefore a nullity. In a situation where a trial court has no jurisdiction to entertain the suit, the correct order to make is to strike out the suit so as to afford the plaintiff another opportunity of coming properly with a fresh action before the trial court: Anigboro v. Sea Trucks (Nig) Ltd. (1995) 6 NWLR (Pt. 399) 35 and Gombe v. P.W. (Nig) Ltd. (1995) (Pt. 402) 402.
In the circumstance the appeal succeeds. The judgment of the lower court delivered on 4/5/98 is set aside and the respondent’s suit is struck out. The appellant is entitled to cost which I assess at N2,500.
ISA AYO SALAMI, J.C.A: I read before now, in draft, the judgment just delivered by my learned brother, R.D. Muhammad, JCA and am completely in agreement with the reasoning contained in the judgment and the conclusion arrived thereat. I endorse all the consequential orders including the order as to costs proposed in the judgment of my learned brother, R.D. Muhammad, JCA.
MAHMUD MOHAMMED, JCA: I have had the priviledge of reading in advance the judgment of my learned brother Muhammed JCA which has just been delivered. I agree with him that the appeal ought to succeed. I therefore also allow the appeal and abide by all the orders made by my learned brother in the leading judgment including the order on costs.