Alhaji Raji I. Akinwale V. Bank of the North (2000)

LawGlobal-Hub Lead Judgment Report

ONNOGHEN, J.C.A. 

This is an appeal against the judgment of the Kwara State High Court of Justice holden at Ofa in suit No KWS/OF/2/91 delivered by Hon. Justice R.O. ELELU-HABEEB on the 16th day of September, 1991 in which the learned trial Judge entered judgment for the respondent under the undefended list procedure.

The facts of the case as can be gathered from the record are that on the 21st day of January, 1991 the respondent caused a writ of summons to be issue under the undefended list together with an affidavit as required by the rules, for the recovery of liquidated money demand arising from credit facilities granted to the appellant upon his request together with interest thereon amounting at the time to N45,519,96.

The writ was duly issued signed by the registrar and served on the appellant who, thereafter engaged counsel who filed a motion for leave to enter appearance out of time.

On the 17th day of April, 1991 when the matter came up for hearing counsel for both parties were present and the appellant’s counsel withdrew the application for leave to enter appearance out of time and requested for an adjournment to file a notice of intention to defend the action as required by the rules of court. The application was granted and the matter adjourned to 19th June, 1991 for hearing.

However, for reasons not apparent on the record the matter came up for hearing on the 16th of September 1991 and both counsel were present. On that date, learned counsel for the appellant rather than file the notice of intention to defend the action with an affidavit disclosing a defence argued a motion for an order setting aside the writ of summons for non-compliance with order 23 in content form. That the purported writ was signed by an agent of the appellant. That there was no application made to the court but that it was made to the registrar contrary to Order 23 of the Kwara State High Court (Civil Procedure) Rules (hereinafter referred to as the High Court Rules (1989). That since they had decided to challenge the writ, that is why they did not file the notice of intention to defend the action.

The court found no merit in the application to set aside the writ of summons and dismissed same consequent upon which learned counsel for the respondent asked for judgment since there was no affidavit disclosing a defence to the action which was for hearing that morning. In the alternative learned counsel asked for cost.

On the other hand learned counsel for the appellant argued that their failure to file notice of intention to defend was not due to neglect to comply with the rules but on reliance of the rules contained in order 2 rule 1(1)(2) and Rule 2 of the High Court Rules 1981. He urged the court to adjourn the matter for hearing.

In its ruling the lower court refused the application for adjournment and entered judgment for the respondent.

Being dissatisfied with that judgment, the appellant has appealed to this court on four grounds of appeal. See pages 14 and 15 of the record, out of which learned counsel for the appellant J.O. Ijaodola, Esq. in his brief of argument filed on 24/1/95 has formulated three issues for determination as follows:

“i. Was there a valid application for a writ when the application was unsigned and it was on a foolscap typing paper and not on a printed form and the marking as undefended list was made by the registrar without authorisation by the court.

ii. Was the purported writ properly classified when it required defendant to enter appearance within 8 days, and

iii. Was it right of the trial court to have refused the application for an adjournment in the circumstances of this case.”

It is necessary, at this stage, to reproduce the grounds of appeal since there is a preliminary objection against some of the grounds in this matter. The grounds of appeal are therefore as follows: