Legalpedia Citation: (2013) Legalpedia (SC) 15514
In the Supreme Court of Nigeria
Mon Apr 22, 2013
Suit Number: SC. 98/2004
CORAM
SAIFULLAH MUHAMMAD MUNTAKA-COOMASSIE, JUSTICE SUPREME COURT
CHRISTOPHER MICHELL CHUKWUMA- ENEH JUSTICE, SUPREME COURT
PARTIES
CHIEF S.S. OBARO APPELLANTS
RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
In an action for recovery of debt, the Defendant /Respondent failed to file notice of intention to defend before the return date. The matter was placed under the undefended list and judgment was given in favour of the Plaintiff/Appellant. Upon appeal to the Court of Appeal, the decision of the trial court was reversed; this prompted the Plaintiff/Appellant appeal to the Supreme Court.
HELD
Appeal dismissed
ISSUES
Whether the appellant was not denied fair hearing in the determination of the respondent’s appeal by the court below (Grounds 1,2 and 3).Whether the Court of Appeal was right in the interpretation it gave, Order 23 Rules 1 and 2 of the High Court (Civil Procedure) Rules of FCT in the determination of the respondent’s appeal before it. (Grounds 4,5 and 6).
RATIONES DECIDENDI
ISSUANCE OF A WRIT – ISSUANCE OF A WRIT OF SUMMON
‘As earlier stated in this judgment, the issuance of writ of summons pursuant to Order 23 under undefended list procedure cannot precede the order of court so to do.’
‘It is a judicial function that cannot be delegated to an officer. Such a Writ of Summons that was issued before judicial decision so to do, upon consideration of an application becomes incompetent and will ordinarily rob the trial Court of its competence to try the matter. It is like a Notice of Appeal, which requires leave before being filed, to be filed without leave of Court, it shall be incompetent and be so declared by the court as a nullity.’ -Olukayode Ariwoola JSC
UNDEFENDED LIST – EFFECT OF UNDEFENDED LIST TO THE PRINCIPLE OF FAIR HEARING
‘Yet, it has been held that the principles of fair hearing embodied on the maxim audi alterem partem have no application in the cases tr5ied under the Undefended list’–Olukayode Ariwoola JSC
DETERMINATION OF ISSUES – RIGHT OF THE COURT TO FORMULATE ISSUES
‘Generally, it is settled that the main purpose of the formulation of issues for determination is to enable the parties to narrow down the issue or issues in controversy in the grounds of appeal filed. This is in the interest of accuracy, clarity and brevity. The court is therefore at liberty to reformulate the issues for determination in order to give it precision and clarity and achieve substantial justice in the resolution of the matter in controversy.’-Olukayode Ariwoola JSC
COMPETENCY OF COURT – WHEN DOES A COURT BECOMES COMPETENT TO ADJUDICATE ON A MATTER?
This court has settled the matter and has restated it over and over again, that a court is competent when:
“(a) it is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another;
(b) 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
(c) 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 competence is fatal, for the proceedings are nullity, however well conducted and decided, because the defect is extrinsic to the adjudication.” -Olukayode Ariwoola JSC
APPLICATIONS – IMPORTANCE OF SUPPORTING AFFIDAVIT TO AN APPLICATION FOR WRIT OF SUMMON
‘As clearly shown in the Rules, an application being made to court for issuance of a writ of summons is to be accompanied with a supporting affidavit and other necessary and relevant documents to be considered by the court to make a firm decision, before the adversary is brought in, whether or not the action is fit for trial under the undefended list. Yet, after the court is convinced that, with the facts disclosed in the endorsed claim, the affidavit and if any, the documents attached as exhibits, a writ is ordered to be issued by the Registrar, there shall then be delivered by the plaintiff to the Registrar upon the issue of the writ of summons as stated in rule 1 of Order 23, as many copies of the said affidavit as there are parties against whom relief is sought, and the Registrar shall then annex one such copy of the affidavit to each copy of the writ of summons for service on the defendant(s). See; Order 23 rule 2 (supra). In other words, the plaintiff is expected to file a definitive affidavit as evidence on oath separately, verifying the cause of action, the amount being claimed and state clearly that the defendant does not have a defence to the action. Where the writ of summons served on the defendant by the court upon issuance under undefended list procedure does not have the required definitive separate affidavit, the defendant cannot be said to have been served with the required processes.’ -Olukayode Ariwoola JSC
UNDEFENDED LIST – PURPOSE OF THE UNDEFENDED LIST PROCEDURE
‘It is trite that the purpose of Order 23 of the High Court (Civil Procedure) Rules – under Undefended List procedure is for obtaining summary judgment without proceeding to trial requiring calling of witnesses. The rule is for disposing with despatch, cases which are virtually uncontested’-Olukayode Ariwoola JSC
UNDEFENDED LIST – CONDITIONS TO BE MET FOR A SUCCESSFUL APPLICATION FOR UNDEFENDED LIST
‘However, for the Rules on Undefended List procedure to successfully apply and enable the court to proceed to summary judgment, the following preliminary requirements must exist (i)The defendant must not only have been served with the required processes, he must also have entered appearance.
(ii)A claim must have been indorsed on, or attached to the writ of summons served upon the defendant.
(iii)There must be a definitive affidavit (which is evidence on oath) verifying the cause of action and the amount claimed and also that the defendant has no defence to the action.
(iv)The defendant must not have filed a defence to the action’-Olukayode Ariwoola JSC
UNDEFENDED LIST -JUDGMENTS FROM UNDEFENDED LIST ARE JUDGMENT ON MERIT
‘A judgment handed down under the Undefended List is certainly one on the merits and can only be set aside on appeal or by yet another action in the case of allegation of fraud.’–Olukayode Ariwoola JSC
CASES CITED
Musa Shaf Jnr.) & Anor Vs. DaRap Kwam & Ors, (2000) 8 NWLR (pt 670) 685, (2000) 2 NSCQR 802, (2000) LPELR 3031; Unity Bank Pic & Anor Vs. Bonari (2008) 2 SCM 193; Yadis Nig. Ltd. Vs. Great Nig, Insurance Company Ltd. (2007) 10 SCM 183.Idris Vs Archibonq (2001) 9 NWLR (Pt.718) 447 at 457 and 459, Equity Bank of Nigeria Ltd- Vs. Halilco Nigeria Ltd. (2006) 7 NWLR (pt 980) 568; Bavero Vs Mainasara & Sons Ltd. (2006) 8 NWLR (Pt.982) 391 at 425; (2006) 36 WRN 136. Chief Harold Sodipo Vs. LemninKainen Ov & Anor (No.2) (1986) 1 NWLR (pt 15) 220 at 230 – 231Mohammed vs. Olawunmi & Ors. (1990) 2 NWLR (pt 133) Jioreze Vs Okonkwo (1987) 3 NWLR (Pt.62) 737 at 744, Aqueze Vs Pan African Bank (1992) 4 NWLR (Pt.233) 76 at 98.U.T.C Nig Ltd, Vs. Pamates (1989) 3 SCNJ 79/124; (1989) 2 NWLR (Pt.103) 244.?
STATUTES REFERRED TO
NONE