CORAM

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PARTIES

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1. MR. EZEKIEL JOHN GYANG JOCK 2. JOCK ELECTRICAL SOLUTION LTD APPELLANTS

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SUM-MEX (NIG) LTD RESPONDENTS

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AREA(S) OF LAW

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SUMMARY OF FACTS

The Respondent as Plaintiff at the Plateau State High Court of Justice, filed a writ of summons where it claimed against the Appellants as Defendants, “the sum of N3,312,500.00 being the value for different electrical materials supplied to the 1st Defendant for use by the 2nd Defendant, on credit by the Plaintiff at the Defendants’ requested at various dates between May-June, 2011 which the Defendants refused and failed to pay despite repeated demands; 10% interest on the said sum of N3, 312,500.00 from the date of judgment until final liquidation.” The Respondent by its affidavit in support of it claims stated that at various dates between May 2011-June, 2011, the 1st Appellant approached the Respondent at its office at No. 48 Ahmadu Bello Way, Jos and requested the Respondent to supply it various types of electrical materials on credit for use by the 2nd Appellant. The Respondent supplied the said electrical materials to the tune of N3, 312,500.00 to the 1st Appellant as requested. The Appellants agreed to pay the Respondent the said sum in two instalments. The 2nd Appellant issued a cheque dated 15th July, 2011 for the sum of N1, 150,000.00 in favour of the Respondent as part payment, with the agreement to pay the balance of N2, 162,500.00 by the end of July, 2011. The cheque was dishonoured on being presented at the Bank by the Respondent. The Appellants thereafter failed to pay the said sum of N3, 312,500.00, despite repeated demands. Hence, the Respondent instructed its lawyer to institute an action before the trial Court. The matter came up before the trial Court on 21st October, 2015 for hearing. The Appellants did not file any notice of intention to defend. On 21st December, 2015, the learned trial Chief Judge delivered his ruling and granted all the reliefs sought by the Respondent in his writ of summons and further granted post judgment interest at the rate of 10% on the judgment sum until the entire judgment debt is liquidated. Dissatisfied with the ruling of the trial Court, the Appellants filed a notice of appeal.

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HELD

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Appeal Dismissed.

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ISSUES

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Whether the trial Court had jurisdiction to hear the suit on 21/10/2015 and subsequently delivered judgment on 21/10/2015. This issue pertains to grounds 1, 2 and 3 of the notice of appeal?

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RATIONES DECIDENDI

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ACTION, COURT, PRACTICE AND PROCEDURE

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ISSUANCE OF A WRIT OF SUMMONS – WHEN DOES THE ISSUANCE OF A WRIT OF SUMMONS TAKE PLACE?
The computation of the life span and validity period of a writ starts from the date it was issued. See Order 5 Rule 16(1) of the Plateau State High Court Rules 1987. Order 5 Rule 1 provides that a writ of summons shall be issued by a Judge or an officer of the Court empowered to issue summonses
“As to when the issue of writ takes place, Order 5 Rule 15 of the same Rules states thus:
‘Issue of a writ takes place upon its being signed by a Judge or an officer of the Court authorized to do so.’
See Chidobi V. Ujieze (1994) 2 NWLR (pt. 328) 554 at 566.”

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JURISDICTION, COURT, PRACTICE AND PROCEDURE

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COMPETENCE OF COURT– CONDITION PRECEDENT TO THE COMPETENCE OF A COURT TO EXERCISE JURISDICTION
“For a Court to exercise jurisdiction in a matter brought before it for adjudication the Supreme Court and this Court had over time laid down conditions precedent to the competence of a Court to exercise jurisdiction. In the case of Madukolu V. Nkemdilim & Ors. (1962) 2 SCNLR 37 the Supreme Court held that a Court is competent when:
1. It is properly considered as regards numbers and qualifications of the members of the bench and no member is qualified for one reason of another and
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 fulfillment of any condition precedent to the exercise of jurisdiction.”

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UNDEFENDED LIST, ACTION, PRACTICE AND PROCEDURE

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UNDEFENDED LIST PROCEDURE – CONSEQUENCES OF A DEFENDANT’S FAILURE TO FILE A NOTICE OF INTENTION TO DEFEND
“By Order 23 Rule 4 of the Plateau State High Court Rules 1987, where a defendant fails to file a notice of intention to defend, the Court has a duty to enter judgment under the Undefended List. See Ben Thomas Hotels Ltd. V. Sebi Furniture Ltd. (1989) 5 NWLR (PT. 123) 523 at 529.”

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FAIR HEARING, CONSTITUTIONAL LAW, PRACTICE AND PROCEDURE

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BREACH OF THE RIGHT TO FAIR HEARING – WHETHER A PARTY WHO WILFULLY ABSENTS HIMSELF FROM THE HEARING CAN COMPLAIN OF BREACH OF RIGHT TO FAIR HEARING
“A party cannot complain of breach of right to fair hearing where he wilfully absented himself from the hearing. See AG, Rivers State V. Ude (2006)17 NWLR (Pt. 1008) 436 at 456.”

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UNDEFENDED LIST, ACTION, COURT, PRACTICE AND PROCEDURE

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UNDEFENDED LIST PROCEDURE – CONSIDERATIONS BY COURT WHERE A DEFENDANT FILES OR FAILS TO FILE A NOTICE OF INTENTION TO DEFEND IN AN UNDEFENDED LIST PROCEDURE
“The procedure is governed by the provisions of Order 23 of the High Court of Plateau State (Civil Procedure) Rules. These provisions of the Rules state how the procedure operates from commencement to conclusion. The complaint of the Appellants was in respect of what transpired after they were served with the originating processes. The relevant provisions of the Rules to the complaint are Order 23 Rules 3(1) and (4) which state:
“3(1) if the party served with the writ of summons and affidavit … 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 think just.
4. where any defendant neglects to deliver the notice of defence and affidavit prescribed by Rule 3(1) or is not given leave to defend by the Court, the suit shall be heard as an undefended list, and judgment given thereon without calling upon the plaintiff to summon witnesses before the Court to prove his case formally.”
These provisions have been severally interpreted by the Courts and the consensus of case law authority is that what is required of the trial Court by the provisions is that where a defendant fails to file a notice of intention to defend, supported by an affidavit of facts, within five days of service of the processes, the trial Court shall consider the case of the plaintiff under the undefended list and enter judgment accordingly. Where, however, a defendant files the notice of intention to defend with the affidavit, the trial Court will consider the affidavits of the parties to find out if the defendant has ex facie disclosed any defence to the action of the plaintiff. If the Court is satisfied that the defendant has disclosed a defence, it will then grant the defendant leave to defend the action upon such terms as it may think just in the circumstance of the case. Otherwise, it refuses the defendant to defend the action and shall proceed to enter judgment in favour of the claims of the plaintiff. It is the deposition of the notice to defend that is, and should be the determining factor – ED-of Nigeria Limited V. Snig Nigeria Ltd. (2013) 9 NWLR (PT. 1359) 276.”

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COURT, UNDEFENDED LIST, PRACTICE AND PROCEDURE

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UNDEFENDED LIST PROCEDURE – WHETHER COURT WOULD CONSIDER DOCUMENT WHICH IS NOT INCLUDED OR ATTACHED TO THE AFFIDAVITS
“The trial Court does not require the formal address of Counsel and neither can it consider a document which is not included or attached to the affidavits – Ilorin East Local Government V. Alasinrin (2012) ALL FWLR (PT. 645) 226, Nwana V. Union Bank Of Nigeria Plc. (2015) 1 NWLR (PT 1439) 79, Jolabon Investment (Nig.) Ltd. V. Oyus International Co. (Nig.) Ltd. (2015) 18 NWLR (PT 1490) 30.”

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UNDEFENDED LIST, PRACTICE AND PROCEDURE

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UNDEFENDED LIST PROCEDURE – DATE MATERIAL UNDER THE UNDEFENDANT LIST PROCEDURE
“The date material to a case filed under the undefended list is the date that the trial Court enters judgment or grants leave the defend because that is the date the trial Court is deemed to have considered the case of the plaintiff under the undefended list and to have compared the affidavits of the parties to see if the defendant had disclosed a defence on the merits. The return date given by a trial Court when granting leave to a plaintiff to place his case under the undefended list will only be material if the trial Court either enters judgment of the day or grant unconditional leave to defend on the date. Where neither of these events occurs on that day, the day is just a step in the proceedings and is not a determinant of anything.”

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COURT, PRACTICE AND PROCEDURE, JUSTICE

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SUBSTANTIAL JUSTICE – DUTY OF COURT TO DO SUBSTANTIAL JUSTICE TO THE PARTIES TO AN ACTION
“The Courts have maintained over the years that a provision of the Rules of Court should never be interpreted in a manner that will prevent the Court from doing substantial justice between the parties in the dispute submitted for adjudication. This position is based on the firm understanding that the sole purpose of a Court is to do substantial justice between the parties that come before it for adjudication of disputes and not to adhere to technical issues that becloud the justice of a matter because such adherence to technicalities to the detriment of substantial justice inevitable leads to injustice – State V. Gwonto (1983) 1 SCNLR 142, Marine Management Associates Inc. V. National Maritime Authority (2012) 18 NWLR (PT. 1333) 506, Uwazuruike V. Attorney General, Federation (2013) 10 NWLR (PT. 1361) 105, Garan V. Olomu (2013) 11 NWLR (PT. 1365) 227, Ikechukwu V. Nwoye (2014) NWLR (PT. 1397) 227 AND MFA V. INONGHA (2014) 4 NWLR (PT. 1397) 343.”

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CASES CITED

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Not Available

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STATUTES REFERRED TO

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Plateau State High Court (Civil Procedure) Rules 1987

 

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