F.O. Ogbaegbe V. First Bank of Nigeria Plc. (2005)

LawGlobal-Hub Lead Judgment Report

DONGBAN-MENSEM, J.C.A.

The respondent had judgment entered in its favour on the 20th April, 2000, in the Abia State High Court, sitting in Aba Coram Akomas, J. It was a writ marked the “undefended suit”. Although, the appellant filed a notice of intention to defend, the learned trial Judge entered judgment for the respondent/plaintiff on the return date.

The appellant feels aggrieved and contends inter alia, that he was not given a fair hearing by the trial court. The appellant urges us to allow his appeal and strike out the suit on issues one and two on the grounds that:

“a. the suit was incompetent;

b. the learned trial Judge had no jurisdiction to entertain same; and

c. the entire proceedings and the judgment were a nullity.”

Alternatively, the appellant wants the appeal allowed and the suit transferred to the general cause list on the ground that the appellant disclosed a defence on the merit in his affidavit evidence, but the trial court failed to evaluate his evidence.

Upon its five amended grounds of appeal, the appellant formulated three issues for determination, the 3rd being an alternative.

The respondent also formulated three issues which are very similar in contents to those of the appellant. At the hearing of the appeal, each party adopted and relied on their respective brief of argument. This appeal shall be determined on the issues made out by the appellant. Issues two and three are two sides of one coin and shall be considered together.

Issue one:

“In the absence of a formal application for the suit to be placed under the undefended list, has the trial court the jurisdiction to treat the suit under undefended list.”

The learned Counsel for the appellant contends that the suit was incompetent before the trial court for the reason of non-fulfillment of the condition precedent before the institution of the suit. It is the opinion of the learned counsel that Order 23 of the High Court (Civil Procedure) Rules, 1988, Imo State applicable to Abia State makes provisions for the institution of a suit under the “undefended list,” while Order 8 makes provision for the application referred to in Order 23. Non-compliance with these two provisions, submits counsel, renders a matter placed under the “undefended list” and any judgment obtained there from null and void. Counsel cites in support, the following cases:-

1. Maley v. Isah (2000) 5 NWLR (Pt.658) 651;
2. Cash Affairs Finance Ltd. v. Inland Bank (2000) 5 NWLR (Pt. 658) 568;
3. Baba v. Habib (Nig.) Bank Ltd. (2001) 7 NWLR (Pt. 712) 496 at 506 at 506 (H).
4. Saude v. Abdullahi (1989) 4 NWLR (Pt. 116) 387.
5. Provincial Council, Ogun State University v. Makinde (1991) 2 NWLR (Pt. 175) 613 at 618.
6. Sincerity and Trust Multi purpose Cooperative Society Ltd. v. Emmanuel Emenue (2002) 10 NWLR (Pt.776) p. 509 at 520 R 23.

It is to be understood from the submission of the learned Counsel that the requisite application to have the suit placed under the “undefended list” was not made before the suit was heard as an “undefended suit”. Counsel urges us to strike out the suit.

In response, the learned Counsel to the respondent submits that being an originating process, the intended “application” referred to in Order 23 ought to be by means of Form One as stipulated under Order 5 rule 1 of the High Court rules. Counsel opines that the decisions in Maley v. Isah and Cash Affairs V. Inland Bank (supra) were arrived at per incuriam, the attention of the learned Justices not having been drawn to the relevant order 5 rule 1, which deals with originating application as opposed to Order 8 which deals with interlocutory applications. I do not know that it lies in the mouth of a learned Counsel to declare a decision of this court as made per incuriam that should be the province of the Supreme Court and of this court in special circumstances. We shall however, address the merit of the case in terms of the law and the precedent put forward in support of the respective arguments of the parties.