3PLR – BANK OF THE NORTH LTD V. PATRICK MICHAEL AND ORS

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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BANK OF THE NORTH LTD

V.

PATRICK MICHAEL AND ORS

 IN THE COURT OF APPEAL [KADUNA JUDICIAL DIVISION]

10TH DECEMBER 2001.

CA/K/151/2000

3PLR/2001/81  (CA)

 

OTHER CITATIONS

 

BEFORE THEIR LORDSHIPS:

ISA AYO SALAMI, JCA (Presided and delivered the leading judgment)

MAHMUD MOHAMMED, JCA

VICTOR AIMEPOMO OYELEYE OMAGE, JCA

BANK OF THE NORTH LTD.

 

AND

  1. PATRICK MICHAEL
  2. LEONARD ONYEH
  3. JOSEPH ABOJIWE
  4. SANNI YAKUBU
  5. ABUBAKAR M. ADAMU
  6. ALHASSAN SALIHU
  7. PETER IBRAHIM
  8. MRS. MARY ASHILOLO
  9. SHAMSUDEEN MOHAMMED
  10. MIKE THOMAS
  11. ABDUL IBRAHIM
  12. ELKANAH SAMBO
  13. ABDULKADIR BAMA
  14. ABUBAKAR S. GARKO
  15. ADO YAKUBU
  16. CHIMAYI GALADIMA
  17. ADAMU BUBA
  18. SANI TAFIDA
  19. ABDULLAHI G. SHEHU
  20. OLANIPEKUN ABIODUN
  21. MUSA SULE
  22. JIBRIN SULE
  23. GARBA MOHAMMED
  24. FOLORUNSHO LAWAL
  25. AUDU ZARANDA
  26. ADAMU KADAMARDA
  27. ADAMU ABDUL
  28. KAWU ALH. GANA
  29. ABDULLAHI WAZIRI
  30. EMMANUEL JEDAMI
  31. HABIBU ABDULAHI
  32. DAN UWANI AZARE
  33. MOHAMMED BABA
  34. MIKA AMBI
  35. MOHAMMED ALI
  36. DALHATU T/BALEWE
  37. HAUWA D. ABUBAKAR
  38. INUWA SAIDU
  39. SUNDAY DZER
  40. TYOSUE VITALS
  41. ABUBAKAR IBRAHIM
  42. SYLVESTER IMOH
  43. USMAN SULE
  44. ALHAJI ADAMU
  45. PATRICK I. EDERIBHALO
  46. BUKAR MAIDUBU BIU
  47. BULUS P. GATIS
  48. ADAMU N. ALI
  49. ALIYU SHEHU
  50. AMODU ADA
  51. ABBAS IDRIS DOMA
  52. YUSUF OGA
  53. IBRAHIM KWAJAFFA
  54. MOH’D BALARABE
  55. IBRAHIM MUNIR
  56. IBRAHIM MADO WUDIL
  57. A.A. OJO
  58. ZUBAIRU LAWAN
  59. USMAN MUSA
  60. ATTA ISAH
  61. HABILA ARUNG
  62. SULE HOTORO
  63. MORGAN E.NWAKWERE
  64. SAIDU USMAN
  65. GARBA IBRAHIM
  66. MOHAMMED ZUBAIRU
  67. ABDULLAHI KASSIM
  68. MOH’D ALI
  69. MRS. CYNTHIA A. JOLAOSHO
  70. NUNKUR UMAR LAMSING
  71. HENRY A. AJARE
  72. BAFFA MOHAMED
  73. MAI BUKAR GAZARI
  74. ABDUL MUTALIB DAHIRU
  75. HAMISU ABDU
  76. SALISU GARBA
  77. ABDULLAHI ALABI
  78. AMUDA MAGAJI
  79. HAJIYA FATIMA AYOKU
  80. ISA AREMU
  81. MRS. ABIGAIL ADEWUMI
  82. MURITALA T.AJADI
  83. KACHALLA GONI
  84. EMMANUEL T. AKAALBUGH
  85. BAKA CHANDIMA
  86. MOHAMMED SALE
  87. MUSA GAMBO
  88. SAMUEL A. OLA
  89. ABDU BDEJO BUDEL
  90. ISHAKU HARUNA
  91. UAMRU USMAN
  92. YAHAYA D.O. WAISU
  93. GARBA WANZAMI
  94. CHADO NDAKOTSU
  95. PETER OWU
  96. IBRAHIM HARUNA
  97. HARUNA BIU
  98. F.B. SALIAU
  99. MOHAMMED HARUNA
  100. MOHAMMED MAIGANA
  101. ALIYU ISHAKU
  102. GABRIEL O. BAIYE
  103. BUBA A. AUDU
  104. ADAMU MOH’D
  105. GOJIM GOWON
  106. BARNABAS DUDONG
  107. YAHAYA MOHAMMED
  108. GARBA WUSHISHI
  109. HASSAN SALE
  110. LAWAL T. WUSHISHI
  111. ABDULLAHI MOHAMMED
  112. JAMMA MADAKI
  113. MURITALA ADEJUMO
  114. MUHAMMED MUSA
  115. HUSSAINI MOHAMMED
  116. AKO INDYER
  117. S.A JIMOH
  118. SALISU M. LAWAL
  119. MUSA MOCH NTUWAN
  120. SUNDAY EMBUGUSHI
  121. MUSA IBRAHIM
  122. IBRAHIM MURTALA
  123. HASSANA V. DAN IKUNAIYE
  124. SALIH LIMAN MKWA
  125. SANI MUSA
  126. IDI M. ZAMA
  127. SULAIMAN A. BALOGUN
  128. EJIGBOHA FRANCIS ABEL
  129. TAUHEEDA BALOGUN
  130. PAUL A. OLAWUYI
  131. FEMI ONI
  132. PATIENCE MODUPE OJO
  133. MRS. FRANCIS A. OLALERU
  134. JAMES OLUBADE
  135. CECILIA O. SOSANYA
  136. SAIDU O. OKWASHE
  137. ALH. IDRIS BELLO
  138. IBRAHIM KADARKWO
  139. ABDU ALIKIDA
  140. ISA MOH’D GAMBO
  141. MOHAMMED C. BUBA
  142. HABILA BAWA
  143. SHUAIBU ALIYU
  144. BABAGANA SANNI
  145. IBRAHIM AMINU W.
  146. UMARU KlNNAMI
  147. MOHAMMED TABACCO
  148. HAMIDU T. JULDE
  149. LINUS B. MALADI
  150. USMAN HASSAN TELA
  151. ALIYU USMAN GEADABAWA
  152. PENINNAH D.C.
  153. HEMBA AKILE
  154. ISHAQ BELLO
  155. AYANKA ANDOOR
  156. AMINU ISA GOBIRAWA
  157. STEPHEN IGOH
  158. SHEHU KADIRI YUSUF
  159. YARO M/GIDA
  160. OGUMGBEDE F.O.
  161. MISS ZANIAB USMAN
  162. SAMAILA A. IBRAHIM
  163. M. BULAMA GAJI
  164. M.B. OROK
  165. MUSA USMAN
  166. EBEHWE F. IFEOMA
  167. EKUWEME VICTOR
  168. SULE ABUBAKAR

169 MUSA MOHAMMED

  1. ADAMU SHUAIBU
  2. GODWIN EYA
  3. ALI BABA
  4. ADAMU MUSA BIU
  5. DAUDA I.Y. KARU
  6. YAMAN A. MO MOH’D
  7. LAWRENCE T. ABE
  8. BELLO ALH. BOBOJI
  9. BENSON SULE
  10. RAJI YARO
  11. PATRICK A. VDOR
  12. FATAI A. AMAO
  13. DANIS A SHABU
  14. SHEHU EICHA
  15. GARBA ADAMU
  16. BALA SAMBO
  17. JOSEPH ODAH
  18. MOHAMMED ALI
  19. ISMAILA Y. RANO
  20. MAMMAN JIKA
  21. DANJUMA SHUAIBU
  22. JIBRIN ABULEGI
  23. MUHTARI SULE
  24. MOSES KOLO
  25. USMAN GATARI
  26. YAYA U. UMAR
  27. AUDU BAHAGO
  28. IBRAHIM GARBA
  29. GARBA IDRIS
  30. MICHAEL B.ERENDU
  31. MRS. UCHE IBIAM
  32. MOHAMMED BAGUDU
  33. MOHAMMED BIREI
  34. BASHIRU ALIYU
  35. ALHAJI YUSUF ADAMU
  36. MRS. WURAOLA BAIYERI
  37. SAMAILA B. BAUCHI
  38. MOHAMMED GARBA
  39. AUDU ALI
  40. SAIHU ALIYU
  41. AJI MAIBACO
  42. SULE MATO
  43. SARKI LAMINU
  44. SANNI MAMMAN
  45. CHARLES AIZEBOKHAI
  46. MOHAMMED SANNI
  47. MUAZU WADA
  48. MUSA IBRAHIM
  49. SABO ABDU
  50. SAIDU GARBA
  51. BENJAMIN C. ANDOOR
  52. JOHN FABUNMI
  53. L. BALA
  54. V.O. AKINBOLUSILE
  55. ADAMU IDU
  56. ABDULLAHI YAKUBU
  57. ABDULLAHI ABUBAKAR
  58. ABDU MUSA
  59. YAU MUSA
  60. MUSA MAMMAN
  61. MUSA MOH’D BAUCHI
  62. SALE UMAR
  63. STEPHEN N. UGBEMUNA
  64. HALLIRU ALI
  65. HALIRU HAMZA TOFA
  66. GARBA M. AUDU
  67. GARBA IBRAHIM
  68. BUBA YERIMA
  69. BUBA UMARU
  70. BAKO IDA
  71. ALIKALUA
  72. ALI ARDO SHAFFA
  73. ALI AHMADU
  74. IDI ALI
  75. JOHN ORINYA
  76. KABIRU ABDU
  77. MOHAMMED AUDU
  78. UMARU N. NGURU
  79. YINUSA BELLO
  80. HUSSAINI BELLO UNGOGO
  81. MAJORITY BINAUTO
  82. MUHAMMED AHMADU
  83. UMARU M. FUNTONG
  84. YAKUBU G.DANBATTA
  85. ALI GARBA
  86. GARBA YAKUBU
  87. HAMIDU A YAKUBU
  88. HASSAN BALAMI
  89. YAU MOHAMMED
  90. YAU MOH’D ZAKARI
  91. USMAN AUDU
  92. IDRIS USMAN
  93. MOH’D MUSA NAMADI
  94. ALI DAUDA
  95. ABDULLAHI ALIYU
  96. MATHIAS OKO
  97. ANTHONY H. DODO
  98. HARUNA MALASHE MOH’D
  99. MAL. YAKUBU JARI
  100. ABDUL RASHEED TULA
  101. MOHAMMED ALI
  102. USMAN BELLO
  103. STEPHEN GALLA
  104. MAIWADA MAIJAKI
  105. JIMOH DARAMOLA
  106. MUSA USMAN
  107. BONIFACE ODIBA
  108. TANKO ZURU
  109. USMAN MOHAMMED
  110. JOHNNY J. YAKUBU
  111. KALAYE IDI
  112. BARMO CHISO
  113. ABUBAKAR HABIB
  114. ISMAILA IBRAHIM DANIYA
  115. PATRICK I. ABAH
  116. BUKAR UMAR
  117. ALHAJI LIMAN
  118. GAMBO HALILU
  119. YAKUBU INUWA
  120. BENSON B. ABU
  121. ABU ADAMU
  122. BUBA ADAMU
  123. ELIZABETH ADEOLA
  124. ABIMOLA BAKARE
  125. ADESINA OPEBIYI
  126. ADETOYIN T. OSHINLOYE
  127. TAWFIZ A. EMIOLA
  128. MRS. NURA O. YUSUF
  129. EMMANUEL OGUCHE
  130. JOSEPH ISWAKPE
  131. H. USMAN LARAI
  132. BUNU KAR
  133. KALE GANA MUSTAPHA
  134. EMMANUEL OKWULU
  135. HAFIZ MOH’D SANNI
  136. MAGAJI HARUNA
  137. HASSAN MOH’D AYAGA
  138. SALAWU SULE
  139. MICHAEL E. ONOJA
  140. R. A. KODE
  141. RABIU MOHAMMED
  142. WAKILI O. KASSIM
  143. YAKUBU IDRIS
  144. SAADU IRO
  145. HARUNA MOHAMMED
  146. ISSA OGIRI
  147. ALI ABUBAKAR SAWA
  148. UMAR BUKAR
  149. MURITALA OYEWALE
  150. JACO Y. DINGSE
  151. OCHELLA E. IGNATIUS
  152. OJUOLAPE JOSHUA
  153. ZUMAMI WARU
  154. AHMED ADAMU B.
  155. BUNU GOJE
  156. SAMAILA USMAN
  157. SHEHU ALFA MOH’D
  158. THOMAS YAKUBU
  159. YAHAYA ABBAS
  160. ADAMU DANJUMA
  161. GARBA AUDU
  162. GARBA MOHAMMED
  163. GARBA TANKO
  164. IBRAHIM MOH’D YAKASSAI
  165. ISIYAKA USMAN
  166. ISIYAKA USMAN
  167. MIKO MOHAMMED
  168. MUAZU ALI GAMA
  169. MUSA AUDU
  170. USMAN MOH’D ADAMS
  171. YUSUF SULE
  172. ADEBAYO ALABI
  173. MOH’D ABDU GUMEL
  174. AKILU LAWAN
  175. AUDU MAIDALA
  176. DANLADI GUYOL
  177. IBRAHIM ADAM SOJA
  178. MAMMAN BIU
  179. MOH’D I. ZAWACHIKI
  180. SHEHU IBRAHIM
  181. YAKUBU AYUBA
  182. BUKAR SALE
  183. ALHASSAN D. ISANYAWA
  184. MARTINS UKPE
  185. SANUSI MAINASSARA
  186. HAMED UMAR
  187. IKPE I. EKWERE
  188. BALAREBE GANKO
  189. PETER JEREMIAH
  190. GODWIN STEVE
  191. HASSAN ABDULARAHMAN
  192. ALHAJI B. A. THOMPSON
  193. ABDU LAWAL
  194. ISA BIU
  195. ODUNIYA OMALE AKOR
  196. AMINU BALA CHAFE
  197. LADAN BODINGA
  198. SALISU M. ABUBAKAR
  199. ANTHONY OKWOR1
  200. KAKUDI JOHN
  201. MAGAJI UMARU
  202. ABAYOMI YUSUF
  203. YOHANAH DUNG
  204. MUSTAPHA IDAH
  205. MUSA ITODO
  206. MOHAMMED D. MUSA
  207. HARUNA ZAKARI
  208. USMAN AHMADU
  209. SIRAJO MOHAMMED
  210. NANSAH C. KANNAYAL
  211. MUSA KADO
  212. ISHAKA ABUBAKAR
  213. NADABO B.TTAKTAK
  214. MOHAMMED S. WAILO
  215. MOHAMMED SULE
  216. DAUDA ISIYAKU
  217. LEONARO ZOMO
  218. LAWAL USMAN
  219. BAYO AKINWONJU
  220. ADAMU ALI
  221. MOHAMMED GWAGWARWA
  222. ALI ADAMU
  223. J. OGBE GBOR
  224. MALIKI A. DAWODU
  225. MRS. OLAYINKA N. OSHINLOYE
  226. OGUNAIKE
  227. MRS. AJOKE ABIOLA
  228. CHRISTOPHER ABBA
  229. MUSA A. ABDULLAHI
  230. ALHAJI SAADU AREMU
  231. AYINLA MAGAJI
  232. BABA USMAN
  233. BABATUNDE ZACHEAUS
  234. BISI SHITTU
  235. DAVID A. OGUNREMI
  236. MRS. BABATOLU MORENIKE
  237. MUSA ADISA
  238. RAUFU ADEBARA
  239. OBERT 0. OKONKWO
  240. UMAR AHMED
  241. UMAR Y. MAMMAN
  242. SHUAIBU IBRAHIM
  243. MODU BARDE GOROMO
  244. UMAR GARBA
  245. AHMADU ALI
  246. HARUNA BAWA
  247. ISYAKA YUSUF
  248. ALFRED B.EBENEZER
  249. BALA MOHAMMED
  250. BULUS DUNG PAM
  251. IBRAHIM 0. BELLO
  252. DANLAMI BAKO
  253. BUBA UMARU
  254. MOHAMMED HARUNA
  255. MICHAEL WADUKU
  256. NGOZI IWUEKE
  257. TAHIRU AHMED
  258. IBRAHIM R. ISHAQ
  259. IDI ADAMU WUSHISHI
  260. ABUBAKAR N. KETSO
  261. SOGIJI HUSSAINI
  262. ALHAJI SULE NDAKO
  263. SALIMONU ISHOLA
  264. MUSA MARKUS
  265. MOHAMMED ENOKELA
  266. KAYODE KAJOGBOLA
  267. M.A. LAWAL
  268. MICHAEL ENOKELA
  269. MOHAMMED S. KOLO
  270. OLAYIOLA OWOLABI
  271. 0MAGA AGBAMBO
  272. JOHN M. SARKI
  273. GRACE JODA
  274. AMOS WANDARA
  275. MRS. GRACE H. BADMUS
  276. EMMANUEL FAMODIMO
  277. TIMOTHY ADE AJANI
  278. JAMES BOH
  279. ABDULLAHI USMAN
  280. BENJAMIN YAHAYA
  281. DANIEL ODOZI
  282. GANAMA BUKAR
  283. MRS. FOLUKE OGUNDIMINI
  284. MRS. GRACE BENSON
  285. MRS. TUNRAYO OLAWONYIN
  286. MRS. V.S. ALABI
  287. NURUDEEN OSHILAJA
  288. ADAMU ZETU MOH’D
  289. MUSTAPHA TANGA
  290. KACHALLA BUKAR
  291. DAVID OKWU
  292. ZAKARI SULAIMAN
  293. USMAN IBRAHIM
  294. YUSUF JAGABA
  295. HYCINTH YOHANNA
  296. EDWARD A. ADEYI
  297. AUDU CHORI
  298. ODUNLAMI Y.M.
  299. OKON AKPAN
  300. JIBRIN MUKAILA
  301. UMAR SANI MASHI
  302. MOHAMMED LAWAL
  303. ISA BABA WADA
  304. HASSAN UMORU
  305. GODFREY OYINU
  306. EMMANUEL M. KURE
  307. MOHAMMED MOHAMMED
  308. SULE T. WADA
  309. UMAR WAKILI
  310. JOHN ANZAKU
  311. ALIYU MAIKUDI
  312. AYUBA NUHU
  313. GEORGE LIBERE
  314. MOHAMMED UMARU
  315. PAUL J. AMEH
  316. SALISU MAGAJI
  317. BALA MOHAMMED
  318. BALA MOHAMMED JAKADA
  319. ABUBAKAR ADAMU SALIMAN
  320. ABUBAKAR SARKIN FADA
  321. MAHMUD G. ADAMU
  322. SULE HASSAN
  323. SUFIYANU INUWA
  324. YAKUBU AWARE
  325. BULUS K. BENISHIEK
  326. USMAN LAWAN
  327. MOHAMMED A. ALFA
  328. RAJI ADETONA
  329. SHEHU ABUBAKAR
  330. KOLO TSADO
  331. EBENEZER A. MOROLARI
  332. SIMON A. EKELE
  333. SHEHU ABUBAKAR
  334. SHESHI NDAKO,
  335. ABDULLAHI SYIDI
  336. F.O.B. LAWAL
  337. MOHAMMED IBRAHIM
  338. ADAMU ABDULLAHI
  339. IDI ADAMU
  340. MUSA ABDULLAHI
  341. JEJIGO BABAN LARAI
  342. AMOS ENIKANKISELU
  343. GOFWEM GOTOM
  344. HALILU RADDA
  345. MOHAMMED GEZAWA
  346. MUSTAPHA M. OGUCHE
  347. ALH. ZAKI SHIBKAU
  348. ABDULLAHI IBRAHIM AHMED
  349. ALIYU UMARU TAMA
  350. SANI K/MATA
  351. ALH. R.O. ASHIRU
  352. CORNELIUS O. ODEZE
  353. PAUL I. OCHIBA
  354. ALHASSAN ABDU YAKUBU
  355. GARBA K. T/WADA
  356. STEPHEN ONCHE
  357. EBENEZER O. ADEJOBI
  358. H.G. OMONIYI

528 EZEKIEL ABAMDA

  1. SAMUEL O. PALEMO
  2. ABDU K. KAITA
  3. ABUBAKAR UMAR
  4. MANILA OYALMA
  5. UMARU YUSUF
  6. SATIVO PANKSHIN
  7. PAM GAYANG
  8. SUNDAY OLODUN
  9. SAMILA YUSUF
  10. OMORELE MASEMBARE
  11. LAWRENCE I. OWOLOYE
  12. TANIMU R. MOHAMMED
  13. JOHN ATUME
  14. GARBA ADAMU
  15. MANDE MOH’D DAURAN
  16. YUSUF NDAMADU
  17. FRANCIS IKPE
  18. JEREMIAH EKUJI
  19. MATHEW NYAMNUMBAR
  20. AKWODO A. THOMAS
  21. MUSA ABDULLAHI
  22. TAJUDDEN A. OSEIFA
  23. ABU MOHAMMED
  24. ABUBAKAR MOHAMMED
  25. AISHATU GARBA
  26. ALI IBRAHIM
  27. AUDU ISA
  28. JOSEPH EREH
  29. HAMIDU BAHAUSA
  30. SAMUEL GEECHI
  31. SlLAS BULUS
  32. IBRAHIM LAMBATU
  33. SHETTIMA ASHIRA
  34. SALISU ABDULLAHI NGURU
  35. SAIDU YAKUBU
  36. ALI MOHAMMED
  37. ZAKARI ZUBAIRU
  38. YAKUBU O. YAKUBU
  39. ADUGBA ECHEIKPU
  40. ABOKI DANLADI
  41. VICTORIA CHARLES
  42. ABUBAKAR N. KOTSO
  43. UMAR MOHAMMED
  44. ABDU AMADU BAKO
  45. JOSHUA K. AWOLERE
  46. SIMON H. JOCK
  47. TANIMU MOH’D RABIU
  48. UMARU YUNUSA
  49. ADO NAKO
  50. DANLADI TASHAR KURA
  51. ISA IDRIS
  52. ABUBAKAR U. BIU
  53. SAMUEL D. AJIVA
  54. SUNDAY YISA
  55. UMARU NAGWARI
  56. USOKOTI V. WAKARON
  57. MOHAMMED O. MOHAMMED
  58. SANI ABDULLAHI
  59. MAIDAUMA ABDULLAHI
  60. IDRIS ABUBAKAR GURIN
  61. JOROM BALA
  62. MAIWADA DANJIDA
  63. UMARU SHUAIBU
  64. AMUSA IBRAHIM
  65. MATHEW K. OMONIBI
  66. JIMOH-GOGBOARA
  67. HABIBU DANKANO
  68. UMARU MOHAMMED
  69. ADAMU HUSSAINI

598 AMINU AULE

  1. DAUDA MOHAMMED
  2. IDI ADAWA
  3. KAMI MBAYA
  4. JOSEPH O. NTAJI
  5. HUSSAINI MUSA
  6. HARUNA HALADU
  7. HARUNA D. OGBOLE
  8. BUKAR FANAMI
  9. ADO SHEHU AUJARA
  10. AUDU IJAI

609 ADAMU M. MSHEILA

  1. MOH’D WAKALA ISA
  2. SHITTU ADO
  3. SAMAILA DAUDA
  4. DANIEL BALA
  5. S.A ADESINA
  6. MOH’D BELLO ABUBAKAR
  7. NATANKO IDI
  8. TIMOTHY E. AYOKU
  9. AUDU YAHAYA
  10. FRIDAY J. ACHIMUGU
  11. ISA B. DODO
  12. ISA SHEKARAU
  13. SULE MOHAMMED
  14. UMARU GARBA
  15. DANLAMI IBRAHIM FEGGE
  16. ILIASU H. CHALANGA
  17. MUSA ABUBAKAR
  18. MUSTAPHA GAMBO
  19. ABDU AMADU BAKO
  20. MOHAMMED BULAMA
  21. MODU MAISAJE
  22. SHEHU ISA
  23. SANI SALISU BAMA
  24. HALIDU GARBA
  25. G.O. IKUTAH
  26. SULE ISA
  27. ADAMU GBAITA
  28. JONATHAN AILEMEN
  29. GARBA DOMA
  30. MICHAEL WUNGAK
  31. PATRICK SHAWULU
  32. SAMUEL JOHN
  33. OKATAHI M. BELLO
  34. YAHAYA MUSA
  35. ISAH AYINMODE
  36. SAMSON OKPECHI
  37. N.O. OJUNNEH
  38. R.A. SHOYINKA
  39. ALIYU SALAWU
  40. BA’ANA WAKILI
  41. BAMA MUHTARI
  42. ADAMU TUDU
  43. UMARU GILMAMMA
  44. DAVID RAMANDA
  45. ABDULLAHI DANTSOHUWA
  46. SULEIMAN B. LOKOJA
  47. MOHAMMED A. SOKOTO
  48. YOHANNA BAKO
  49. GLADYS O. ORJI
  50. SAMUEL ALI GAYA
  51. EDWIN A. OGLI
  52. DANLADI D. DACHUM
  53. ANTHONY O. OKELO
  54. CHIRLAK NDOR KUMLOK
  55. MUSA ABDULLAHI
  56. MUSA SHUAIBU
  57. USMAN UMAR BIU
  58. ABU SHUAIBU
  59. GARBA DAN MOHAMMED
  60. GARBA MOHAMMED
  61. MRS. LAMI M. BABA
  62. ADAMU ALI
  63. KURAMA BUKAR
  64. RABIU S. SHITTU
  65. MUSA BIU
  66. ALI WAZIRI
  67. THOMAS EKUNIYI
  68. MUSA HARANG
  69. MUSA DABO TULE
  70. MUFTAU K. LAWAL
  71. ADAMU YAKUBU
  72. SUNDAY OCHAI
  73. LOVE IGOMU
  74. IGNATIUS OJOMA
  75. CELETUS A. KPAR
  76. FRANCIS ENUDE
  77. YERIMA GARBA
  78. MUHAMMADU GUSAU
  79. MUHAMMADU LIMAN
  80. AUDU JIMETA BlU
  81. EMMANUEL TAYOK
  82. GARBA HAMIDU
  83. ISA HARMISU
  84. MOHAMMED DANJUMA
  85. SANI SHEHU YABO
  86. JACOB ADESOYE
  87. YAHAYA MOHAMMED
  88. KADUNA YAHAYA
  89. RAYMOND KWADO
  90. SAIDU SUKOLE
  91. ABARI AGBOSENI
  92. STEPHEN B’ADUNU
  93. MUSA BELLO NGULDE
  94. AHMED IBRAHIM
  95. ABDULLAHI MAIKANO
  96. YUSUF IBRAHIM
  97. DANIEL A. SULE
  98. YAMUSA WALI
  99. STEPHEN DAWA
  100. MUSA ABDU
  101. HABIBU AUDU
  102. ABSOLLOM DILLI
  103. BAKO BULUS
  104. I.A. AMANA
  105. SALIHU IBRAHIM GURIN
  106. HAJIA RABI BELLO
  107. OLUWAFEMI O. ENOCH
  108. MRS. SESTY BASHILONY
  109. JOSHUA YOHANNA AUDU
  110. CALVIN DAVID
  111. AUWALU IBRAHIM
  112. USMAN MOHAMMED
  113. MUSA WULAB
  114. DANIEL SAMBO
  115. DAVID ATAMA HARRY
  116. BALA IBRAHIM
  117. ABDULKADIRI BABA
  118. ABDU N. MAMUDA
  119. DENDE POPOOLA
  120. USMAN ALIYU
  121. UMURU A. DAKACHE
  122. JOSEPH T. ADEPE
  123. JOHN N. NYAM
  124. JOHN JENKELI ALO
  125. ANTHONY ODEH
  126. J.O. OJO
  127. ESTHER S. TYOUGH
  128. EMMANUEL OKOH
  129. DANIEL AKPAN
  130. BARAU R. BALI
  131. FRIDAY GABRIEL OGOH
  132. UMARU ABDU
  133. ADAMU YUSUF
  134. SALISU BIU
  135. ADO TSAMIYA
  136. INUSA HOTORO
  137. AUDU IBRAHIM
  138. JAMES LOCHE
  139. LAWAL USMAN
  140. JOSEPH A. IBIWOYE
  141. ADAMU JIKA ADOBA
  142. GANA MUSA DIBAL
  143. DANIEL BARAU
  144. DANGULDE IBRAHIM
  145. WAZIRI YUSUF
  146. DAHIRU USMAN
  147. HYCINTH A. ULOKO
  148. MUSA A. GUSAU
  149. MUSTAPHA MOHAMMED
  150. ADAMU DANBILLA
  151. ABDULLAHI YUSUF

 

REPRESENTATION

Kayode Olatunji Esq, for appellant.

Charles Okike Esq, for respondents.

 

MAIN ISSUES

PRACTICE AND PROCEDURE – APPEAL – Preliminary objection to an appeal – argument canvassed in a preliminary objection which was withdrawn and struck out – whether relevant when a fresh application is made.

PRACTICE AND PROCEDURE – APPEAL – Preliminary objections – where party fails to comply with provisions of order 3 rule 15 of the Court of Appeal Rules when making a preliminary objection – discretionary powers of the court under order 3 rule 15(3) of the Rules in relation to same.

PRACTICE AND PROCEDURE – JURISDICTION – Competence of a court – need for trial Judge to pronounce on same when raised at the earliest opportunity.

PRACTICE AND PROCEDURE – Undefended list procedure – failure to apply for and obtain leave and an order of court to place suit under same – effect of.

PRACTICE AND PROCEDURE – Undefended list procedure – nature of claims that qualify to be placed under order 23 rule 1 of Kano State High Court (Civil Procedure) Rules 1988.

PRACTICE AND PROCEDURE – Undefended list procedure under order 23 rule 1 of Kano State High Court (Civil Procedure) Rules – prescribed authority to consider an application for a suit to be placed thereunder – mode of bringing such application.

 

MAIN JUDGMENT

ISA AYO SALAMI, JCA (Delivered the following judgment):

In the High Court of justice of Kano State, seven hundred and sixty seven plaintiffs filed separate or several applications for writs of summons under the undefended list, claiming various sums of money as balance of their entitlements owed them by the defendant, the Bank of the North Limited. Seven hundred and sixty seven writs of summons were duly issued and served on the defendant which filed its respective memorandum of appearance as well as notices of intention to defend. The suits were eventually consolidated for hearing with suit No. K/919/97 Patrick Michael v. Bank of the North Limited without a finger being raised against the competence of each suit being placed on the undefended list.

 

The lower court per Wada Abubakar Omar, J., delivered on 24th February, 2000 judgment in favour of the plaintiff in suit K/919/97 in the sum of N49,358.23 in addition awarded interest of 15% from August 1995 to the date of judgment and thereafter at 10% per annum.

 

Thereafter the learned trial Judge without considering the merit of each of the alleged consolidated suit awarded the 760 plaintiffs a lump sum of N30,192,449.51 jointly. In this connection, learned trial Judge reasoned as follows:-

 

“For the reasons given in the instant suit,

 

I enter judgment for the remaining 759 plaintiffs whose suits have been consolidated with the instant suit, in the various amounts claimed by them. For the whole 760 plaintiffs, the amount they are entitled to pursuant to this judgment will be N30,192,449.51 (thirty million one hundred and ninety two thousand four hundred and forty nine naira fifty one kobo)”

 

Having said this, learned trial Judge was still not at peace with himself apparently discovering that he was in a quandary and immediately made a volte face when he said:-

 

“Since each suit maintains its identity despite the order for consolidation, judgment is entered in favour of each plaintiff in the consolidated cases against the defendant in the sum claimed by each plaintiff as indicated in the list printed signed and attached to this judgment which I will now read out. In addition, separate judgment for each of the surviving 760 consolidated cases, in the terms herein expressed is hereby deemed delivered. Except for the amount claimed and suit number, judgment is entered in favour of each plaintiff against the defendant as in the instant suit.”

 

As if the confusion was not sufficiently confounded, the learned trial Judge went ahead in his theatrical show to further display his dilemma when he concluded thus:-

 

“Judgment of seven lines is contained in each file of the 760 consolidated cases, as per the terms the terms herein expressed, and is deemed to have been read with the judgment in the instant case of Patrick Michael.”

 

One is at loss on how the learned trial Judge came to these various awards made to the plaintiffs in the consolidated cases. The only suit considered was suit No. K/919/97 and even in this suit the entitlement of the plaintiff therein Patrick Michael, is not clear. Is it in accordance with the judgment entered in his favour for N49,358.23 or a share from N30,192,449.51 awarded the plaintiffs jointly and what would be his share or according to judgment of seven lines contained in each of the files of the 760 consolidated cases? And where are the 760 files of the consolidated cases? There is no evidence of existence of such judgments before this court. They cannot be found in the record compiled by the appellant. Neither could they be found in the additional record which respondents sought to file with the leave of court but was refused.

 

The defendant was displeased with the judgment and has appealed to this court on 13 grounds of appeal dated and filed respectively on 7th March, 2000 and on the 8th day of March, 2000.

 

In accordance with the rules and practice of this court, parties exchanged briefs of argument which was settled at the appellant’s, respondents’ and appellant’s reply briefs. The appellant’s and appellant’s reply briefs, adopted and relied upon, were respectively filed on 22nd November, 2000 and 12th September 2001. The respondents’ brief, dated 22nd June 2001, was deemed, with leave of court, to be properly filed and served on 2nd July, 2001.

 

At the hearing of the appeal, learned counsel for appellant adopted both the appellant’s and appellant’s reply briefs and urged upon the court to allow the appeal and strike out the respondents’ claim particularly in respect of issue 1 for respondents’ failure or neglect to seek leave to have their respective suits placed on the undefended list which goes to the roots of the matters. The learned counsel for respondents also adopted the respondents’ brief.

 

Both counsel in their respective oral submission strenuously contested the validity of the respondents’ intention to rely on a preliminary objection. I propose to examine the competence or otherwise of the notice of intention to rely on the preliminary objection.

 

The learned counsel for appellant contended that the notice of preliminary objection should be discountenanced on account that the notice which was filed on 25/9/2001 had not and could not have been argued in a respondents’ brief dated and filed on 22nd June 2001 which was deemed as properly filed and served on 2nd July 2001, the earlier one argued in the brief having been withdrawn and struck out. Learned counsel for appellant further contended that the existing notice of intention to rely on a preliminary objection is equally incompetent because it is not given in accordance with the provisions of order 3 rule 15 of the Court of Appeal Rules Cap 62 of the Laws of the Federation of Nigeria, 1990. The present notice is not a notice as required by the rule rather it is a motion on notice under order 3 rule 3(1).

 

In this connection, learned counsel for respondents argued that the notice of the preliminary objection substantially complied with the rules of this court. He further argued that the appellant could not be heard to complain, having replied to it in his appellant’s reply brief of argument.

 

There is substance in the objection taken by the learned counsel for appellant against the alleged notice of objection dated 25th September, 2001. It is a motion on notice supported by affidavit to which is attached some documents brought in accordance with order 3 rule 3(1) of the Court of Appeal Rules Cap. 62. This is contrary to the notice required to be given by the respondents under order 3 rule 15 of Cap. 62. The rule of court has prescribed the mode of bringing the objection and any departure from it will not be entertained. Since the respondents fail to comply with the provisions of order 3 rule 15, I am constrained to reject the objection. I am strengthened in my view by the provisions of order 3 rule 15(3) of the Court of Appeal Rules, Cap. 62 which provides thus:-

 

“(3)   If the respondent fails to comply with this rule the court may refuse to entertain the objection or may adjourn the hearing thereof at the cost of the respondents or may make such other order as it thinks fit.”

 

The court has not thought it fit to adjourn the matter indeed there was no such application before it nor thought it otherwise. I also agree with the objection that the previous respondents’ notice of intention to rely on a preliminary objection dated and filed 22nd June 2001, having been withdrawn and struck out, the argument canvassed in the respondents’ brief in support thereof ceased to be of relevance or application. The argument canvassed by respondents and replied to by the appellant in its reply brief of 12th September, 2001 cannot be deemed or considered as argument for or against a process that subsequently came into existence on 25th September, 2001. Having withdrawn the notice of preliminary objection canvassed in the brief and the same struck out, learned counsel for respondents ought to have proffered fresh argument, whether oral or written, in support of the fresh application. In the result the court cannot hold the appellant to their reply brief nor could it say that the appellant would not thereby be prejudiced if it were held to its reply brief. For this reason and the fact that the instant objection is not in accordance with the provisions of order 3 rule 15 the same is also struck out.

 

On the appeal, I am respectfully of the view that the only issue calling for determination is the competence of the suits brought by the respondents. This issue is underscored by the appellant’s issue 1 which reads:-

 

“…………..whether the suits filed as such without any application for leave nor leave of the lower court obtained to place the 760 suits on the undefended list are not incompetent affecting the jurisdiction of the lower court to entertain the same.”

 

The appellant’s formulation of issue was adopted by the respondents in their brief of argument.

 

In this connection it is argued on behalf of the appellant in its brief of argument, that failure of the respondents to apply for and obtain leave and order of the lower court placing the respondents’ various suits on the undefended list is fatal to the various claims. Learned counsel contended that the respondents’ claim bother on breach of contract of master and servant which counsel submitted are not suitable for trial under the provisions of order 23 of the Kano State High Court (Civil Procedure) Rules. Learned counsel then submitted that the 760 suits brought under the undefended list are incompetent. He relied on the authority of Mrs. Elizabeth Maley v. Mr. Habibullah Isah (2000) 5 NWLR (Pt. 658) 651. He urged that the entire proceedings in the consolidated suits be declared a nullity.

 

Learned counsel for appellant further contended that this issue was duly raised before the trial court but the learned trial Judge failed or refused to determine the issue joined thereon by the parties.

 

I propose to deal with the failure of the learned trial Judge to pronounce upon the competence of the suits when it was raised before him. The appellant by a notice of intention to rely upon a preliminary objection complained about the competence of the suits placed on the undefended list by the respondents unilaterally without seeking and obtaining the leave or order of the court to so place them on that list.

The objection was formally taken before the court when the respondents, in reply, contended that the writs of summons having been signed by the learned trial Judge personally the irregularity or illegality is cured and the respective writs of summons are deemed regularly issued.

 

The learned trial Judge in my respectful view has an abiding duty to determine any substantial issue particularly when it touches upon the competence of the action or of the court to entertain the suit at the earliest opportunity because trial however well or ably conducted will come to not once there is defect In the Court’s competence to hear the suit. I agree with the submission of the learned counsel for appellant that the learned trial Judge erred when he failed to consider and make findings on the issue duly raised and canvassed before him. See Dr. Ella v. Agbo (1999) 8 NWLR (Pt.613) 139,151 per Edozie JCA when he said:

 

“It is incumbent on a tribunal to make a finding on crucial issue joined by parties.”

 

And in the case Harriman v. Harriman (1989) 5 NWLR (Pt. 119) 6, 16-17:-

 

“The second is a complaint that the trial Judge was too brief in his judgment and failed to consider all the issues of law properly raised before him. There is substance in this complaint. It is the duty of a trial Judge to consider all the issues canvassed before him and to make findings thereon vide Bala v. Bankole (1986) 3 NWLR (Pt.27) 141.”

 

This brings us to the crux of the matter. It is common ground that there was no application by the respondents’ before the trial court for an order to place the suits on the undefended list and consequently no order was made by the lower court. The failure to bring an application for and obtaining the order of the lower court before placing the matter on the undefended list denied the trial court of its discretion in determining whether the claims relate to a debt or a liquidated money demand or not and whether the suit were suitable to be tried under the undefended list proceedings, as provided under the provisions of order 23 rule I of the Kano State High Court (Civil Procedure) Rules 1988. In the instant case, some employees who claim to have been laid off were seeking an alleged balance of their entitlements consequent upon the termination of their employment. In effect this is a claim in contract of service of master and servant wherein the respondents would be required to plead and prove the contract of service, the terms and condition of service as well as their entitlement to the claims. These are clearly not matter of a debt or liquidated money demand contemplated under order 23 rule 1 of the 1988 Rules. The application is to enable the court decide whether the matters, though already marked “undefended list” by respondents’ solicitor, actually qualify as such. In my respectful view only a Judge and not a register has the requisite training to do so.

 

Order 23 rule 1 of the Kano State High Court (Civil Procedure) Rules, 1988 reads as follows:-

 

“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 “undefended list”, and mark the writ of summons. Accordingly, and enter thereon a date for hearing suitable to the circumstances of the particular case.”

(Italics supplied)

 

The word “court” is defined in the High Court Law of Kano State to –

 

“include the High Court, and the Chief Judge and the Judges of the High Court sitting together or separately.”

 

If the provisions of rule 1 of order 23 and the definition of the word “court” are read together it seems that the person to be satisfied that there are good grounds for believing that there is no defence to the claim, enter the suit for hearing under the undefended list as well as mark the suit accordingly before fixing the suit for hearing on a convenient date is a Chief Judge or a Judge of the High Court sitting together or separately in court. The Chief Judge or Judge of the High Court must sit In the Court and not in chambers to qualify as a court. If that be the case, the rule of court envisaged a formal application either by way of motion brought in accordance with the provisions of order 8 of the Rules 1988. The court would invariably sit to exercise its judicial and not administrative function hence it would only hear a motion and not a request contained in a correspondence simpliciter that a writ of summons be issued. In the circumstance of order 23 rule 1, it is a Judge sitting in court in exercise of his judicial discretion that would have to be satisfied after considering the affidavit accompanying the application that there is no defence to the action, enter it for hearing under the undefended list, mark the suit accordingly – undefended list – before fixing it for hearing. It is not a matter reserved for a registrar or an individual litigant as it was done in the instant case. It is even not a power reserved for a Judge in chambers. Any suit placed on the undefended list without satisfying a Judge sitting in court that the matter is suitable for placing on the undefended list and he marking it accordingly and fixing date for hearing would be contrary to the provisions of order 23 rule 1 and would be void. I am encouraged by the provisions of order 23 rule 2 which expressly assigned the registrar the role he is to play under the order. Order 23 rule 2 provides that:-

 

“2.     There shall be delivered by the plaintiff to the registrar, upon the issue of the writ of summons as aforesaid, as many copies of the above-mentioned affidavit as there are parties against whom relief is sought, and the registrar shall annex one such copy to each copy of the writ of summons for service.”

 

Clearly rule 2 does show that the registrar and the court in rule 1 are one and the same person because the application to be submitted to the court in rule 1 is supported by affidavit what is the rationale for submitting another set of affidavit to the registrar to annex to a writ of summons already issued by a person certainly other than the registrar if the word court and registrar are synonymous. See also the cases Mrs. Elizabeth Maley v. Mr. Habibullah Isah (2000) 5 NWLR (Pt. 658) 651, 663-5 cited in the appellant’s brief and Cash Affairs Finance Ltd v. Inland Bank (Nigeria) Plc (2000) 5 NWLR (Pt. 658) 568, 588.

 

I am not respectfully persuaded by the submission of the learned counsel for respondents that if the provisions of order 5 rule 1 of the Kano State High Court (Civil Procedure) Rules 1988 had been brought to the attention of the court the decision of this court in Maley v. Isah (supra) would have been different. Order 5 rule 1 reads as follows:

 

“1.     A writ of summons shall be issued by the registrar or other officer of the court empowered to issue summons, on application. The application shall ordinarily be made in writing by the plaintiff’s solicitor by completing form I in the appendix to these rules; but the registrar or other officer as aforesaid, where the applicant for a writ of summons is illiterate, or who has no solicitor, may dispense with a written application and instead himself record full particulars of an oral application made and on that record a writ of summons that may be prepared signed and issued.” (Italics supplied)

 

It is quite clear that the equivalent of order 5 rule 1 of the Kaduna State High Court (Civil Procedure) Rules of the Kaduna State was not brought to the attention of this court in Maley v. Isah (supra). But I am unable to fathom how it would have made any difference. It could not have made any difference because order 5 rule 1 itself underscores the fact that there are other officers of the court empowered to issue summons one of such occasions, when a writ of summons might be issued by others officers of the court other than a registrar, is as prescribed in order 23 rule 1 of the Kano State High Court (Civil Procedure) Rules 1988. In order 23(1) the prescribed authority or officer of the court to consider an application for a suit to be placed under the undefended list and accordingly so mark it is the court meaning a Judge sitting in court and not a registrar or a litigant or his solicitor where he has one. But order 5 rule 1, apart from, taking cognisance of other officers’ power to issue writ of summons, mandates registrar to ordinarily issue writ of summons in accordance with form 1 in appendix to the rules. Notwithstanding the provisions of order 5 rule 1 of the High Court (Civil Procedure) Rules (supra) a suit could only be placed on undefended list if an application is made to the court – meaning a Judge sitting in court who, when satisfied that the defendant had no defence, in an action, claiming a debt or liquidated money, place the suit under undefended list and marks it accordingly and fix a date for hearing. Any step taken to the contrary will not be in accordance with order 23 rule 1 (supra).

 

There is no ambiguity and if there were it seems the provisions of order 8 rule 2(1) of the rules has laid the ghost of such confusion to rest. The Kano State High Court (Civil Procedure) Rules does not define the word “court” as graphically as one would have wished. It simply defines “court” to mean ‘High Court of Kano State.” But the Kano State High Court Law does, which definition had already been recited in this judgment. Order 8 rule 2(1) of the Rules clearly indicates that there are classes of persons to whom an application could be addressed or made. The three groups or officers of the court to whom an application or motion could be directed are the court, or a Judge in chambers or a registrar. Paragraph (1) of rule 2 of order 28 of the Rules reads as follows:-

 

“2(1) Where by these rules any application is authorised to be made to the court or a Judge in chambers or a registrar, such application may be made by motion.” (Italics supplied).

 

It can be reasonably inferred that those officers are distinct and separate and not interchangeable. It follows that an application intended to be made to the court cannot be directed to the registrar or a Judge in chambers. An application prescribed by order 23 rule 1 of the Rules cannot be directed to or substitute for one to a Judge in chambers or a registrar. It is needless to mention that the respondents’ application which was a written letter to the registrar is incompetent. It ought to be an application supported by affidavit in accordance with the provisions of order 8 thereof and directed to the court. The pre-marking of the purported application by learned counsel for respondents is equally wrongful. It is contrary to the express provision of order 23 rule 1 which gives to the court the power to “mark accordingly” the writ of summons.

 

Accordingly the appeal succeeds on this issue and the same is allowed. The entire proceedings in the consolidated suits including the judgment and perceived judgments entered therein are declared a nullity and set aside. All the suits or actions comprising the consolidated suits are struck out. I make an order of costs assessed at N10,000.00 against all the respondents.

 

MAHMUD MOHAMMED, JCA.: I have had the opportunity before today of reading the judgment of my learned brother Salami JCA which he has just delivered. I entirely agree with him that this appeal ought to be allowed having regard to the way and manner the respondents suits were placed and heard under undefended list of the lower court without complying with the requirements of order 23 rule 1 of the Kano State High Court (Civil Procedure) Rules 1988.

Accordingly, I also hereby allow the appeal and declare the entire proceedings in the consolidated suits including the judgment and perceived judgments entered therein a nullity. Consequently, all the suits or actions comprising the consolidated suits are hereby struck out with N10,000.00 costs to the appellant.

 

VICTOR AIMEPOMO OYELEYE OMAGE, JCA.: On pages 222 to 230 of the record of appeal is contained the notice of appeal of the appellant which is of 13 grounds of appeal, filed by the appellant on 8/3/2000 against the judgment of the Kano High Court delivered on 24th February, 2000. From the 13 grounds of appeal are formulated by the appellant six issues for determination. To make the issues intelligible I deem it right here to state the facts as composed by the appellant in his brief in his “statement of facts.” Appellant records that the appellant is a bank with head office in Kano. Until 20th July, 1995 the appellant had in its employment the respondents who were more than 760 in number. Each of the respondent was employed on different days by the appellant, in different categories, on different salaries and each was posted to different position, upon different conditions of service. Upon the termination of the appointment/employment by the contents of one type of letter addressed to each of the respondent; The letter is dated 8th August, 1995. Each letter contained also the entitlement of each person whose appointment was determined, now respondent. The appellant said each former staff now respondent accepted the calculation recorded in the said letter.

 

In the Court below the respondent purported to consolidate, the claim that each of them made the appellant. It is a claim for a further sum of money stated, allegedly by each of the respondent as a claim against the appellant for additional salaries and entitlements, with interest thereon. The claim of each respondent is purported to be consolidated and it was filed as an undefended claim. The appellant submitted that the leave of court was not obtained by the applicant now respondent, and that the purported consolidation of the 760 suits is incompetent. The appellant used the word illegal for the order. The appellant averred that the claim of the respondent In the Court below is founded on a letter dated 16th January, 1995 by which the appellant increased the salary and allowances of its existing staff. The offer and grant of the salary increase is with effect from 1st June, 1995. By its claim in the originating summons in suit No. k/1349/97 the respondents claim also to be entitled each to the grant made to its existing staff, and computed in each case what the entitlement of each is.

 

Each respondent also claim in this appeal from the suit In the Court below, consolidated by order of court, a balance of his entitlement on retrenchment in July 1995, and 15% interest per annum from 1995 until the date of the judgment. For the sake of clarity, it should be pointed out that there are two suits appealed against;

 

(i)      The suit commenced by the respondents as plaintiff by originating summons.

 

(ii)     The suit commenced under the undefended list procedure by the respondents, each against the same defendants, now appellant Bank of the North.

 

The suit commenced by originating summons in the Kano High Court is K/1349/97.

It claims for salaries, entitlement upon termination of the employment of each former staff, retrenched on 20/2/95.

 

The 2nd suit was commenced under the undefended list procedure. It was filed in Kano High Court during the pendency of the originating summons. It is suit No.K/602/97-K/1058/97 against the Bank of the North. It is a claim by each respondent for balance of entitlement said to be due to be paid to the plaintiff by the defendant on his retrenchment in July, 1995 in each case of the 760 former staffs.

 

(iii)    Interest at the rate of 15% per annum on the above sum of N101,673.72.

 

One of the action was commenced against the now appellant in the name of Usman Soge. The record shows similar suits from K/602/97 to K/1058/97 each in the name of the plaintiff. To each of the application, various counsel for the appellant issued a notice of an intention to defend. The now appellants denied the claim of the respondent In the Court below and also raised thereto a notice of a preliminary objection to each of the 760 claim under the undefended suit. In the objection the appellant averred that the suit was not in compliance with the law as it did not obtain the leave of the court before the undefended list procedure was commenced. The court below delivered one judgment for all the undefended list claim in the sum of N30,192,449.51, and annexed to the judgment a list showing the award to each of the claimant.

 

An appeal is currently pending on suit K/1349/97. The court below delivered the judgment in favour of Patrick Michael against the defendant in the sum of N49,358.23 plus 15% interest from August, 1995 to the date of judgment and at 10% interest at court rate until the final liquidation of the whole judgment sum. The Judge then pronounced as follows:

 

“For the reasons given in the instant suit, I enter judgment for the remaining 759 plaintiffs whose suits have been consolidated with the instant suit in the various sums claimed by them for the whole 760 plaintiff. The amount they are entitled to pursuant to this judgment will be N30,192,449.51.”

 

It is against the above judgment that the appellant has filed this appeal of 13 grounds and the issues formulated thereon are six as follows:

 

“(1)   Whether or not this is a proper case that ought to be brought on the undefended list and whether the suits filed as such without any application for leave on the undefended list are not incompetent affecting the jurisdiction of the lower court to entertain same.

 

(2)     Whether or not the suit as presently constituted does not constitute an abuse of the process of court in view of the pendency of suit K/1349/97 involving same parties, and same subject matter.

 

(3)     Whether or not in the circumstances of this case, this is a proper case to be consolidated.

 

(4)     Whether or not exhibit A and D attached to the further and better affidavit of Patrick Michael and relied upon by the lower court constitutes a new enforceable contract of service between the appellant and the respondents whose employments were determined since 20th July 1995, and whether the findings of the lower court without any proof whatsoever nor evidence of same are not perverse.

 

(5)     Whether or not the award of pre-judgment interest of 15% in favour of the respondents without any evidence led to prove same proper.

 

(6)     Whether or not in the circumstances of this case the extra judicial exercise computation of respondents entitlement as reflected in the list prepared by the learned trial Judge, outside the court is not regular, illegal and a denial of fair hearing to the appellant.”

 

The respondent filed his brief subsequent to which he filed what the respondent described as:

 

“Notice by respondents of intention to rely upon a preliminary objection.”

 

The appellant’s counsel has objected to the propriety of the said notice saying it does not conform with the method prescribed by the rules for raising a preliminary objection. Appellant’s counsel submitted that a preliminary objection does not require to be supported by an affidavit and an annexure.

 

The respondent duly filed his brief of argument and adopted appellants six issues for determination. Respondents complained that the issues filed by the appellant are not well articulated. The respondents issues are 1-6 like the appellants and henceforth respondent formulated issue 7, which reads:

 

“Whether the Court of Appeal has jurisdiction and can properly determine this appeal as presently filed and on the basis of the notice of appeal dated 8/3/2000 and the defective brief dated 22/11/2000. The objection raised by the respondent is on the notice of appeal, which the respondent says is a sine qua non of the appeal. If the court finds the notice of appeal herein defective, it must dispose of it by striking it out.”

 

The reason given by the respondent is that the appellant filed only one notice of appeal, against all the 760 respondents, in the matter on appeal represented by Patrick Michael, when he submitted that 759 plaintiffs were before the court and upon whom judgment of the court was pronounced by one notice of appeal which is intended to appeal against the judgment against Patrick Michael and 759 others. The respondent submitted that one single notice of appeal, is therefore defective to challenge all the judgments. The respondent cited the decision in Emigwe v. Akaigwe (1992) 3 NWLR (Pt. 225) 505 at 535 to show that the fact that several suits in court are consolidated does not merge the identity of such consolidated suits. The respondent submitted that in Nwaeze v. Eze (1999) 3 NWLR (Pt. 595) 387 at 416. Ige JCA said:

 

“Consolidation of action is the process whereby two or more actions pending in the case in court are by order of court tried together at the same time. The actions though separate and distinct, are tried simultaneously in the proceedings. Though consolidated each remains a separate and distinct action, and had its judgment as given.”

 

He urged the court to hold incompetent the notice of appeal and dismiss the appeal. The respondent also submitted that the appellants brief is incompetent by reason of the inclusion in the brief documents that are not part of the record in the appeal. He submits that the appellant had included in the brief the supplementary record of proceeding in anticipation that the application to include supplementary record of proceedings will be granted by the court, which in fact was refused. Such inclusion is adverse to the rule, and would require excision whereas in Sanymia v. A.I.B. (2001) 4 NWLR (Pt. 703). The Court of Appeal held that it is not its business to carry out surgical operation in counsels argument. He urged the court to strike out the appellants brief of argument.

To the above, the appellant filed a rely in which he denied the averments of the respondent, in particular on the notice of appeal filed on 8/3/2000. Citing the case of Chief Kalu Igwe & Ors. v. Chief Okuwa Kalu & 62 Ors. (1993) 4 NWLR (Pt. 285) page 1 where the Supreme Court held that:

 

“Thee is no rule either of law or of practice which requires an aggrieved party appealing from the decision in consolidated actions to file two notices of appeal, thus where as in this case, a party aggrieved by the decision of a judgment delivered in respect of a consolidated action files such a notice of appeal and states that the appeal is against the whole decision such a notice is sufficient to challenge the whole judgment, and any decision in respect of any of the consolidated suits.”

 

The above view was confirmed in a subsequent decision of the Supreme Court in Chikere v. Okegbe (2000) 12 NWLR (Pt. 681) page 274, at page 289 paragraph c-d, where Ayoola JSC said:

 

“When an appeal is taken from the decision in consolidated suits and the notice of appeal has indicated that the appeal is against the whole decision the appeal must be taken as having been from the decision as it affects the totality of the consolidated suits.”

 

In my opinion the authorities cited by the appellants are more apposite on the opposite of the law on the filing of one notice of appeal only where there is an appeal on consolidated suits and the appeal as in the instant appeal is against the consolidated suits; than the proclamation in his brief by the respondent that consolidated suits are separate and distinct. I rule readily therefore that I find no error or defect in the notice of appeal of the appellant in this appeal, I rule that the notice of appeal is well founded and valid for the appeal. I find no substance in the respondent’s objection to the appellants brief. Whatever is irrelevant in a brief is deemed to be abandoned. It is trite that if the issues in the brief do not affect the validity of the case, an appellate court is entitled to make a ruling thereon. I am therefore in agreement with the ruling of my learned brother Salami JCA that the appeal is sustainable, I overrule the preliminary objection.

In my opinion a proper consideration of issue one in the appellants brief and of the respondents thereto will determine whether a need arises to consider the other issues in the appeal. The appellants issue one reads thus:

 

“Whether or not this is a proper case that ought to be brought under the undefended list, and whether the suits filed as such without any application for leave nor leave of the lower court obtained to place the 760 suits on the undefended list are not incompetent affecting the jurisdiction of the lower court to entertain same.”

 

I have read the submission of both the appellant and of the respondent in their briefs. Obviously two consideration are vital in issue one to the determination of the appeal namely:

 

(i)      The nature of the claim of the plaintiff In the Court below and,

 

(ii)     Whether the plaintiffs claim was placed under the undefended list.

 

I commence with the second consideration first. In the absence of the record of the court which shows that pleadings were filed, it is an incontrovertible fact that the claims were purported to be made under the undefended list procedure. It was made under the undefended list procedure of Kano State, and the record shows so.

The next issue to be considered is whether the rules under the undefended list procedure were complied with. In this connection it is necessary to comment on the unwieldy academic exercise indulged in by the respondents counsel in the respondents brief. The simple issue is this, all application under the undefended list procedure must comply with the rules under the Civil Procedure Rules of Kano State order 23, which subscribe as follows:

 

“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 stating the grounds upon which the claim is based, and stating that in the deponents 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” etc.

 

The preamble, or the first step to the entry of a writ of summons to the undefended list is an application made by the plaintiff to the court. The type of application to be made is provided for in order 8 rule 1 of the Kano State High Court (Civil Procedure) Rules which reads:

 

(1)     Interlocutory application may be made at any stage of an action.

 

(2)     Where by these rules any application is authorised to be made to the court or a Judge in chambers or a registrar such an application may be made by motion.”

 

Going back to the provisions of order 23, rule one of the Kano State (Civil Procedure) Rules as recorded above, it requires an application to be made when applying to place a claim under the undefended list. When, again in order 8, rule 2(1) says “where by these rules any application is authorised to be made,” the method of the application is as provided therein. The failure to obtain the order of court to issue a writ adjudge on the undefended list is not only a failure of procedural matter. The order to place a claim in a writ is a mandatory and substantive adjectival condition to be fulfilled prior to which the suit may be so placed. See Nwakama v. Iko L.G. C.R.S. (1996) 3 NWLR (Pt. 439) page 732, (ii) Cash Affairs Ltd. v. Inland Bank Nig. Plc (2000) 5 NWLR (Pt. 658) 588. It is therefore a sine qua non for a hearing of a claim under the undefended list under the Kano State (Civil Procedure) Rules. The rule specifically requires that an application be made before the writ is so issued. At what time in the proceeding in the instant case, did the respondent apply to place the several writs of summons on the court list? Several none. Admittedly the registrar prepares the list of the court filed writs. The registrar has no obligation to direct a counsel to fulfil a condition precedent to place a writ in court. The rules prescribe for a prior application. It has been decided in various reports that such an application is not by writing a letter to the court. In this case the respondent did not apply at all, especially he did not in any of the suits apply by motion to place the suit in undefended list, before the court. The court below is therefore without jurisdiction to hear the claim.

 

The second issue arising to be considered on the appellant and the respondent issue one in their briefs, is the nature of the claim which can be placed on the undefended list. Order 23 of the Kano State (Civil Procedure) Rules specified the kind of claim that any be entertained under the undefended list, it is:

 

“A debt or liquidated money demand.”

 

The claim of the respondents as plaintiffs In the Court below is for allowances offered by the former employers after they have left the service of the one time employer. The affidavit in support of each claim of the respondent as plaintiff In the Court below show that the employment of each plaintiff respondent was terminated by a letter addressed to each of the 760 claimant on 20th July, 1995. At that time the appellants deposed, and this was not denied by the respondent that each respondent was paid his entitlement as contained in the letter dated 8/8/95. The respondents claim In the Court below is not based on the entitlement while each of them was in service it is founded on salary increment and allowances awarded by the appellant to its existing staff by a letter to its staff dated 16/1/96. The grant of increment was back dated to when the trenched staff were in service of the appellant. A claim of that nature is not ascertained, and it is not a debt, or liquidated demand to be claimed ex facie. It is not a debt or liquidated demand because it is not apparent on face of it that the respondent were owed by the appellant any obligation to increase each of their salary of the paid allowance after each of them has ceased to be in the service of the appellant. There would be required argument and cross argument, in submission which is unsuitable for a claim under the prescription in order 23, rule 1 for hearing under the undefended list. The chance exist that the defendant In the Court below will present a triable defence.

 

In my opinion the respondents claim In the Court below is unsuitable, to be heard as an undefended list procedure, and the suit has not complied with the rules required in the provision of order 23 (Civil Procedure) Rules of Kano State. From the above description of the defendant now appellant who filed a notice of intention to defend which was apparently ignored In the Court below; the appellant would appear to have a defence which if the court below had considered, would not have ruled to award judgment, since there was clearly a plausible defence on the merit. Such defence has been described as a triable issue. See F.M.G. v. Sani (1990) 4 NWLR (Pt. 147) 688, at page 699. The existence of such a triable issue should have been sufficient to send the plaintiffs/respondents claim for trial In the Court below.

 

For the above reasons and the fuller reasons contained in the lead judgment of my learned brother Salami JCA, I find no reasons to consider the other issues in this appeal, as issue one in my view is sufficient to rule that the claim be struck out. It is struck out. The appeal succeeds. I abide by the consequential order as to costs made in the lead judgment.

 

Cases referred to in the judgment

Bala v. Bankole (1986) 3 NWLR (Pt.27) 141.

Cash Affairs Finance Ltd v. Inland Bank (Nig.) Plc. (2000) 5 NWLR (Pt. 658) 568.

Chikere v. Okegbe (2000) 12 NWLR (Pt. 681) 274.

Ella v. Agbo (1999) 8 NWLR (Pt.613) 139.

Enigwe v. Akaigwe (1992) 3 NWLR (Pt. 225) 505.

F.M.G. v. Sani (1990) 4 NWLR (Pt. 147) 688.

Harriman v. Harriman (1989) 5 NWLR (Pt. 119) 6.

Igwe v. Kalu (1993) 4 NWLR (Pt. 285) 1.

Maley v. Isah (2000) 5 NWLR (Pt. 658) 651.

Nwaeze v. Eze (1999) 3 NWLR (Pt. 595) 410.

Nwakama v. Iko L.G. C.R.S. (1996) 3 NWLR (Pt. 439)732.

Sanymia v. A.I.B. (2001) 4 NWLR (Pt. 703).

Rules of court referred to in the judgment

Court of Appeal Rules Cap. 62 Laws of the Federation of Nigeria, 1990. or 3 r. 15(3).

High Court (Civil Procedure) Rules of Kaduna State or. 5 r.1.

High Court (Civil Procedure) Rules of Kano State 1988 or 8 rr. 1, 2(1) & or.23 rr. 1, 2.

 

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