Cash Affairs Finance Limited & Anor. V. Inland Bank (Nig.) Plc (2000)
LawGlobal-Hub Lead Judgment Report
OLUDADE OLADAPO OBADINA, J.C.A.
This is an appeal against the judgment of the Kaduna State High court delivered on the 23rd of January, 1995 in favour of the respondent in suit No.KDH/15/95.
In the writ of summons issued on the undefended list, the respondent as plaintiff claimed against the defendant, now the appellants for the following reliefs:-
“(1) The sum total of N5, 357,780.82 (Five Million, Three Hundred and fifty-seven Thousand, Seven Hundred and Eighty Naira, Eighty Two Kobo) being the outstanding and unpaid debt owed by the 1st defendant to the plaintiff as at the 30th day of November, 1994, arising out of the simple contract premised on the Commercial paper Investment deposit placement made by the plaintiff with the 1st defendant on the 7th day of May, 1993 in the sum of N5,000.000 (Five Million Naira) at the interest rate of 45% per annum for a period of 90 days, which matured on the 5th day of August, 1993 the re-payment of which deposit placement was personally guaranteed by the 2nd defendant.
(2) 21% interest per annum on the said debt of N5,357,780.82 from the 30th day of November, 1994 up till judgment and 10% Court interest thereon until full liquidation.”
The summons was supported by affidavit and exhibits. The summons was issued on the undefended list under Order 22 rules 1, 2 and 4 of the Kaduna State High court (Civil Procedure) Rules, 1987.
At the hearing of the summons, the defendants, who are now the appellants, were absent. They were also not represented by counsel, but the Legal Officer of the 1st appellant wrote a letter to the Registrar of the Court and asked for adjournment.
The learned Counsel for the plaintiff, now the respondent, opposed the application for adjournment. The Learned trial Judge refused the application for adjournment, and allowed the respondent to prosecute the cause which was on the undefended list.
The summons was moved by counsel for the respondent and the learned trial Judge, pursuant to Order 22 Rule 4 of the Kaduna State High Court (Civil Procedure) Rules, 1987 entered judgment for the plaintiff/respondent against the appellants jointly and severally in the sum of (N5,357,780.82) Five Million, Three Hundred and Fifty-Seven Thousand, Seven Hundred and Eighty Naira, Eighty-Two Kobo, with interest at 21% per annum from 30th November, 1994 until judgment. i.e. 23rd January, 1995 and thereafter at 10% per annum until the Judgment debt was finally liquidated.
The appellants were dissatisfied with the decision of the trial court and appealed to this court on four (4) grounds of appeal. From the four grounds of appeal the appellants formulated three (3) issues for the determination of this court namely:-
“(i) Whether it is right in law for a court to enter judgment against parties against whom no writ of summons had been issued or served?
(ii) Whether or not the trial court had done enough in this case to satisfy itself that there were grounds for believing that the defendants had no defence to the claims of the plaintiff before hearing the cause on the undefended list.
(iii) Whether or not the trial Court had drawn correct interferences from the primary facts of the case before it.”
On receipt of the appellants brief of argument, the respondent filed a respondent’s brief wherein a notice of preliminary objection was given against ground 1 of the Appeal.
The notice reads:-
“The respondent shall raise preliminary objection to ground 1 of the appeal.
The ground of appeal complains of absence of proof of proper service of the court process on the 2nd defendant. The said ground of appeal is incompetent as there was a finding of fact by the learned trial Judge on the issue of service. On page 32 of the record the learned trial Judge stated ‘I am satisfied from the affidavits of service on both the 1st and 2nd defendants that each of them was served on 13/1/95 to be in court today:’
The appellant can therefore not raise the issue of improper service as there was no appeal on the finding of fact made by the learned trial Judge. It is therefore against the laid down principle of law, that parties are estopped by failure to appeal against adverse findings of fact relevant to their issue.”
The learned Counsel relied on section 150 and 151 of the Evidence Act, Agwan Obioha & Ors. v. Chief Nwafor Duru & Ors. (1994) 10 SCNJ 48 at 64; (1994) 8 NWLR (Pt. 365) 631; and Wahabi Aigboho Sijuola Olarenwaju v. Governor of Oyo State (1992) 11-12 SCNJ 92 at 105-106; (1992) 9 NWLR (Pt. 265) 335.
He urged the Court to strike out ground 1 of the appeal.
However, from the four grounds of appeal filed by the appellants the respondent formulated one issue for determination namely:-
“When does a case qualify to be placed on the undefended list and what is the duty of a Judge on the return date.”
I will first of all consider the objection taken against ground 1 of the grounds of appeal.
Ground 1 of the appeal reads as follows:-
“The learned trial Judge erred in law, when on the 23rd of January, 1995, he entered judgment against the 2nd defendant in this suit in the absence of proof of proper service of any process of Court on the 2nd defendant.
Particulars:-
“(a) The requirements of law are to serve a writ of summons on the defendant personally.
(b) The 2nd defendant was sued as an individual person.
(c) The bailiff’s affidavit of service says that he left the papers with the legal adviser apparently of the 1st defendant”.
The substance of the objection is that the learned trial Judge made a specific finding of fact on page 32 of the record of appeal on the issue of service, when he stated:-
“I am satisfied from the affidavit of service on both the 1st and 2nd defendants that each of them was served on 13/1/95 to be in Court today”.
The learned counsel for the respondent further argued that since there was no appeal on the finding of fact made by the trial Judge, the appellant cannot raise the issue of improper service. He said the appellant is estopped by its failure to appeal against the adverse findings of fact, in view of Section 150 and 151 of the Evidence Act and the case of Agwan Obioha & Ors V. Chief Nwafor Duru & Ors (1994)10 SCNJ 48 at 64; (1994) 8 NWLR (pt.365) 631.
Section 150 of the Evidence Act, is on presumption of regularity. Section 150(1) of the Evidence Act provides that when any judicial or official act is shown to be done in a manner substantially regular, it is presumed that formal requisites for its validity were complied with.
The presumption of regularity under Section 150(1) of the Evidence Act is not an irrebutable presumption. For any judicial or official act to be covered in a manner substantially regular. In this case, the complaint of the appellant is that the writ of summons culminatingin to the judgment on appeal was not served personally on the 2nd appellant.
He said the writ of summons was left with the legal adviser of the 2nd defendant/appellant. For the presumption of regularity to arise in such a case, it must be shown that the writ of summons was served personally on the 2nd defendant/appellant. This is a matter of fact to be garnered from the evidence.
That brings me to the findings of the learned trial Judge, vis-a-vis, the affidavit of service filed by the bailif that served the process. At page 34 of the record of appeal, the affidavit of service by the bailif states specifically that
the writ of summons meant for the 2nd appellant was delivered to the Legal Adviser of the appellant company. The learned trial Judge stated in his judgment at page 32 of the record of appeal, as follows:-
“I am satisfied with the affidavit of service on both the 1st and 2nd defendants that each of them was served on 13/1/95 to be in court today. They are apparently not in court nor have they filed any notices of their intention to defend. The learned counsel for the plaintiff is allowed to prosecute the cause which is on the undefende list.
It can be disputed that this is a finding of fact. The question arises, whether the finding was supported by evidence and whether the Court of Appeal can examine the evidence that led to the findings of the trial Judge.
As a general rule,when the question of evaluation of evidence by a trial Judge does not involve the credibility of witnesses but the complaint is against non evaluation or improper evaluation or appraisal of the evidence tendered before the trial court, an appellate court is in as good a position as a trial court to do its own evaluation.- See Abisi v. Ekwealor (1993) 6 NWLR (pt.302)643 at 673-674 S.c.
Evaluation of evidence is primarily by function of the trial Judge. It is only where and when he fails to evaluate such evidence properly or at all, that the Court of Appeal can intervene and itself re-evaluate such evidence; otherwise where the court of trial has satisfactorily reformed its primary function of evaluating evidence and has correctly ascribed probative value to it, the Court of Appeal has no business interfering with the findings on such evidence.-See Arolagba v. Shorun (1985) 1 NWLR (pt.2) 360; Obodo v.Ogba (1987) 2 NWLR (pt.54) 1; Shell B.P. V.Cole (1978) S.C.183.
In this case the affidavit sworn to by the bailiff of the High Court that served the writ of summons says clearly at page 34 of the record of appeal inter alia as follows:-
“…………. I served upon Mr. Michael Okpere a writ of summons, and a hearing notice. A true copy whereof is hereunder annexed and issued out of this court at Kaduna, upon Mr. Michael Okpere upon the complaint of the plaintiff by delivering the same personally to the Legal Adviser at the Leventis Building, Ahmadu Bello Way, Kaduna…………..”
A reading together of the affidavit of service quoted above at page 34 of the record of appeal, and the finding of the trial judge at page 32 of the said record clearly shows that the finding is not supported by evidence. In the circumstances, the presumption of regularity under section 150(1) of the Evidence Act, has been rebutted to the effect that the writ was not served personally on the 2nd appellant. Accordingly the court can intervene and itself re-evaluate the evidence in this case”- See Woluchem v. Gudi (1981) 5 SC. 291.
A close look at the findings of the learned judge on the service of the writ of summons on 1st and 2nd defendants as well as ground 1 of the grounds of appeal against which the preliminary objection was raised, seems to show that it is the said finding that is being challenged in ground 1 of the appeal. It is not correct that the findings of the learned trial judge that he was satisfied from the affidavit of service on both the 1st and 2nd defendants that each of them was served on 13/1/95, was not challenged. Ground 1 of the grounds of appeal effectively challenged the findings of the learned trial judge on the issue of service of the writ of summons. In the circumstances I think the objection is very much misconceived and is hereby over-ruled.
I will now go into the consideration of the issues raised by the parties. The first issue formulated by the appellant reads as follows:-
“Whether it is right in law for a court to enter judgment against parties against whom no writ of summons has been issued or served.”
Order 12 Rule 2 of the Kaduna State High Court (Civil Procedure) Rules, 1987, provides how service of process shall be effected. It says:-
“Save as otherwise prescribed by any of these rules an originating process shall be served Personally by delivering to the person to be served a copy of the document duly certified by the Registrar as being a true copy of the process filed, without exhibiting the original thereof.”
In the case of service of process on a corporation or Company, Order 12 Rule 8 of the rules prescribed how the process should be served. It provides:-
“When the suit is against a corporation or a Company authorised to sue and be sued in its name or in the name of an officer or trustee, the writ or other document may be served, subject to the enactment establishing such corporation or company or under which it is registered, as the case may be, by giving the same to any director, Secretary or other principal Officer or by leaving it at the Office of the Corporation or Companies.”
A reading together of order 12 Rules 2 and 8 shows that the mode of serving processes on individuals are different from that of the Companies. Services of process on individual must be personal, while that of the Company is by giving the process to any director or secretary or other principal officer of the company or by leaving the process at the office of the Company.
Applying this rule to this case service on the 1st appellant should be by giving the process to any director or secretary or other principal officer of the 1st appellant or by leaving the process at the office of the 1st appellant Company; On the other hand, service on the 2nd appellant must be effected personally on the 2nd appellant. See Order 12 rules 2 and 8 of the Kaduna Slate High Court (Civil Procedure) Rules 1987.
In the present appeal, the learned trial Chief Judge stated at page 32 of the record of appeal, as follow:-
“I am satisfied from the affidavits of service on both the 1st and 2nd defendants that each of them was served on 13/1/95 to be in court today.”
The learned counsel for the appellants referred to the two affidavit of service filed by the bailiff that effected the service, and submitted that the learned trial Chief Judge was not sufficiently painstaking in being satisfied, in that the bailiff who served the processes and filed the two affidavits of service stated in the case of the 2nd defendant/appellant that he served the 2nd defendant Mr. Micheal Okpere by leaving the document with the Legal Adviser at the Leventis Building, Ahmadu Bello Way, Kaduna. He submitted that a writ of summons against Mr. Micheal Okpere. i.e. the 2nd defendant left with the Legal Adviser of the 1st appellant cannot be said to have been served personally on the 2nd defendant/appellant, simply because he was the Managing Director of the 1st appellant Company.
A cursory look at the affidavit of service at page 34 of the record of appeal as filed by the bailiff show that the writ of summons meant for the 2nd appellant was delivered to the Legal Adviser of the 1st appellant company.
It is now trite that where service of process is required, failure to serve is a fundamental vice and the person affected by the order or judgment who was not served with the process is entitled ex debito justitiae to have the order or judgment set aside as a nullity. See Marion Obimonure v. Ojumoola Erinosho and Ors (1966) 1, All NLR 250 at 252 – 253.
In the present case there is evidence that the 2nd appellant was not personally served as prescribed by order 12 Rule 2 of the Kaduna State High Court (Civil Procedure) Rules 1987 which enjoins the respondent to serve the 2nd appellant personally with the writ of summons. I think failure to serve the 2nd appellant personally is a fundamental defect. A failure to notify the opposing party of the institution of any proceeding other than one which is properly brought ex parte, in which case there is no opposing party means that a condition precedent to the exercise of jurisdiction has not been fulfilled. See Obimonure v. Erinosho and Ors (supra) at page 252.
This view was taken by the court of Appeal in England in Craig v. Kanseen (1943) K.B.256. In that case the plaintiff was granted an order by the High Court giving him leave to enforce a judgment under the courts (Emergency Powers) Act, 1999″ though the defendant had not been served with the summons. The High Court held that the order could only be set aside on appeal, but the Court of Appeal held that the defendant was entitled Ex-debito justitiae to have it set aside by the court which made it. In delivering the judgment of the Court, Lord Greene M.R., drew attention to “the distinction between proceedings or Orders which are nullities and those in respect of which there has been nothing worse than irregularity.” After considering a number of cases which turned on the distinction, he said:-
“Those cases appear to me to establish that a person who is affected by an Order which can properly be described as a nullify is entitled ex-debito justitiae to have it set aside, so far as procedure is concerned, it seems to me that the court in its inherent jurisdiction can set aside its own Order, and that it is not necessary to appeal from it…The question, therefore, which we have to decide is whether the admitted failure to serve on the defendant the writ of summons on which the order of January 18, 1940, was based was a mere irregularity, or whether it gives the defendant the right to have the order set aside. In my opinion, it is beyond question that failure to serve process where service of process is required goes to the root of our conceptions of the proper procedure in litigation. Apart from proper ex parte proceedings, the idea that an order can validly be made against a man who has had no notification of any intention to apply for it has never been adopted in this country. It cannot be maintained that an order which has been made in those circumstances is to be treated as a mere irregularity and not as something which is affected by a fundamental vice.”
This is a clear statement of principle, with which I respectfully agree. In the circumstances, it is my view that it is beyond question in this case that failure to serve the writ of summons on the 2nd appellant personally, where personal service is required under order 12 rule 2 of the Kaduna State High Court (Civil Procedure) Rules, 1987, goes to the root of our conception of proper procedure in litigation. It cannot be maintained that the judgment which has been given in the circumstances by the Learned trial court is to be treated as a mere irregularity and not as something which is affected by a fundamental vice. It is indeed a nullity. See Skenconsult v. Ukey (1981) 1 SC 6; See also, Oke v. Aiyedun (1986) 2 NWLR (pt.23) 548 at 558
In the circumstances. I am of the view that the learned trial court was in error when he entered judgment against the 2nd appellant in this case.
The second issue formulated by the appellant reads as follows:-
“Whether or not the trial court had done enough to satisfy itself that there were grounds for believing that the defendants had no defence to the claim brought by the plaintiff
The respondent also formulated only one issue for determination namely:
”When does a case qualify to be placed on the Undefended list and what is the duty of a judge on the return date”
A reading together of the above two issues seems to show that the two issues are virtually identical and the same in substance. The two issues are challenging the propriety of placing the writ of summons on the undefended list and the adequacy of the involvement of the trial Judge in the exercise of his discretion. I will therefore treat the two issues together.
Order 22 Rule 1 of the Kaduna State High Court (Civil Procedure) Rules 1987 provides:-
“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 what shall be called the “undefended list”, and mark the writ of summons accordingly, and enter thereon a date for hearing suitable to the circumstances of the particular case.”
This issue for determination arose from grounds two and three of the appellants grounds of appeal, challenging the judgment entered on the undefended list.
The learned counsel for the appellants argued that there was a written application by the respondent for issue of a writ of summons on the undefended list; that no writ of summons was issued at all, but a hearing notice transferring the cause to the general cause list was issued to the defendants/appellants along with the plaintiff’s written application and affidavit. He stated that, neither the counsel for the respondent nor the Registrar of the Court prepared a writ of summons and that, no such writ of summons was marked as for the undefended list and none was served on the appellants. He submitted that the provisions of Order 22 of the Kaduna State High Court (Civil Procedure) Rules 1987 were not complied with, and the cause referred to in the Registrar’s hearing notice had not been properly before the court. He submitted that the purported hearing by the court on 23/1/95 was incompetent and done without jurisdiction. He said the conditions precedent for the exercise of jurisdiction by the court had been fulfilled.
The crux of the submission of the learned counsel for the appellants is that since no proceedings were taken by the learned trial court to determine whether the suit was one qualified to be placed on the Undefended List under order 22 rule 1 of the Kaduna State High Court (Civil Procedure) Rules, 1987, the suit was not properly initiated in accordance with the law and therefore the learned trial court had no jurisdiction to entertain the claim. He referred to the case of Madukolu v. Nkemdilim (1962) 1, All NLR, 587: (1962) 2 SCNLR 341: and at 422.
He further submitted that the entire proceedings embarked upon by the learned trial court on the 23/1/95 was conducted without jurisdiction and is therefore null and void. He urged the court of Appeal to set aside the judgment.
The contention of the respondent however is that, the suit was properly placed on the undefended list in accordance with order 22 of the Kaduna State High Court (Civil Procedure) Rules, 1987. The learned counsel for the respondent argued that the respondent complied with Order 22 rule 1 in bringing its application and the application was supported by affidavit with annexure. He submitted that the argument of the appellants as relating to the form does not in any way occasion a miscarriage of justice. He referred to Order 22 Rule 2(3) of the Kaduna State High Court (Civil Procedure) Rules, 1987 and submitted that the duty of the learned trial court is to find out whether the defendants/appellants had been served with the processes and whether they had filed Notice of intention to defend the suit. He submitted that the learned trial Chief Judge made a specific finding of fact as to the issue of service that the defendants/appellants were duly served, and that the appellants did not file notice of intention to defend. He said none of the allegations of fact contained in the affidavit was controverted or challenged. He referred to the case of Alhaji Abdullahi Baba v. Nigerian Civil Aviation Training Centre (1991) 7 SCNJ 1 at 22; (1991) 5 NWLR (Pt.192) 388;Mogaji and Others v, Odofin (1978) 4 SC 9] and Tai Ajomale v. John E. Yaduat (J 991) 5 SCNJ, 172 at 184; (1991) 5 NWLR (Pt.191) 257 and submitted that since the facts contained in the affidavit in support of the application were not challenged, the learned trial court normally ought to accept the evidence on the principle that there was nothing to put on the other side of the balance. He finally submitted that the learned trial court was correct to have entered judgment for the plaintiff/respondent against the defendants/appellants. He urged the Court of Appeal to affirm the judgment.
Before I go to resolve the issue under consideration I think it is pertinent that I should briefly state the facts of the case as can be garnered from the record of appeal.
By an application dated 6th January, 1995, to the Registrar of the High Court of Kaduna State, Kaduna, the respondent applied for the issuance of a writ of summons on the undefended list. The application in full at page 2 of the record of appeal reads as follows:-
“IN THE HIGH COURT OF JUSTICE OF KADUNA STATE OF NIGERIA,
IN THE KADUNA JUDICIAL DIVISION
HOLDEN AT KADUNA
KDH/KAD/15/95
BETWEEN:
INLAND BANK NIGERIA PLC PLAINTIFF
AND
- CASH AFFAIRS FINANCE LTD RESPONDENT
- MR. MICHEAL OKPERE
The Registrar,
High Court of justice,
KADUNA.
Dear Sir.
APPLICATION FOR WRIT OF SUMMONS ON THE UNDEFENDED LIST
Please cause a writ of summons on the Undefended List to issue at the instance of the above named plaintiff against the defendants as named above, in the following terms:-
(i) The sum of N5,357.780.82 (Five Million, Three Hundred and Fifty-Seven Thousand, Seven Hundred and Eighty Naira, Eighty-Two Kobo only) being the outstanding and unpaid debt owed by the 1st defendant to the plaintiff as at the 30th day of November, 1994 arising out of the simple contract premised on the commercial paper Investment/deposit placement made by the plaintiff with the 1st defendant on the 7th day of May, 1993 in the sum of (N5,000.000.00) (N5M) at the interest rate of 45% per annum for a period of 90 days, which matured on the 5th day of August, 1993, the repayment of which deposit placement was personally guaranteed by the 2nd defendant.
(ii) 21% interest per annum on the said debt of N5,357,78-.82 from the 30th day of November, 1994 up till judgment and 10% Court interest thereon until full liquidation. The defendants have failed, refused and/or neglected to pay the said debt despite repeated demands.
DATED AT KADUNA THIS 6TH DAY OF JANUARY, 1995.
Signed…
Mesers AT AGUBA & Company
Plaintiff’s Solicitors
27 ALI AKILU Road,
Investment House,
Kaduna.
Address for Service
On The Defendants…
(1) CASH AFFAIRS FINANCE LIMITED,
CAF’S PLAZAE.
TOP FLOOR, LEVENTIS BUILDING,
AHMADU BELLO WAY,
KADUNA.
(2) MR. MICHEAL OKPERE,
THE MANAGING DIRECTOR,
CASH AFFAIRS FINANCE LIMITED,
CAFS PLAZA,
TOP FLOOR, LEVENTIS BUILDING.
AHMADU BELLO WAY,
KADUNA”
A close look at the said application for writ of summons dated 6th January, 1995, shows that, the application does not contain any mark or approval by the Judge on the face of it for issuance of the writ of summons on the undefended list.
There is no evidence from the record of appeal that the writ of summons marked undefended list was ever issued. Application for writ of summons to issue is certainly not synonymous with the writ of summons. There is no writ of summons whatsoever.
The crux of the present first and second issues formulated by the appellants and indeed the only issue formulated by the respondent for determination is whether or not the procedure adopted by the trial court in placing the respondent’s suit for the undefended list had satisfied the requirements of the law under Order 22 Rule 1 of the Kaduna State High Court (Civil Procedure) Rules 1987 which for the sake of emphasis, I reproduce as follows:-
Order 22 R.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 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 the “Undefended List” and mark the writ of summons accordingly, and enter thereon a date for hearing suitable to the circumstance of the particular case.”
The provisions of Order 22 Rule 1 of the Rules is very clear and unambiguous. It speaks loudly as to how the issues stated therein could be treated as claimed by the respondent. The word “application” envisaged by the rule is not an ordinary letter written to the court upon which the judge could simply write “approve” to place a suit on the Undefended List of the court under the rule. The application envisaged by the rule is an application in the normal judicial proceedings in accordance with Order 8 Rules 2 and 3 of the Kaduna State High Court (Civil Procedure) Rules, 1987.
Order 8 Rule 2(1) of the Rules provides:-
“Where by these Rules any application is authorized to be made to the court or a Judge in Chambers, or Register, such application may be made by motion.” The application envisaged under order 22 Rule 1 of the Kaduna State High Court (Civil Procedure) Rules 1987 is an application by way of motion.
Therefore the correct procedure with respect to an application under order 22 Rule 1, aforesaid is that, the application is to be made by motion Ex parte, supported by affidavit setting forth the grounds upon which the claim is based.
Commenting on what constitutes a proper and valid placement of a writ of summons on the Undefended List and the involvement of the trial court, the learned author of ‘Essays On Civil Proceeding” by A. Obi- Okoye in chapter 5, page 203, paragraph 38, has the following to say:-
“Entry of the suit in the undefended List is not automatic. The court must be satisfied that there are good grounds for believing that there is no defence to the claim before entering the suit in the undefended list. A Judge may exercise in open court or in chambers, as the rules may prescribe, all or any part of the court’s jurisdiction. It follows that unless the rules otherwise prescribe, an application for commencement of a suit in undefended list ought to be specifically considered as such by the Judge in Chambers or in open court ex parte and the summons cannot issue until after such consideration the Judge orders it to issue. On hearing the application the court may require further affidavit or may refuse the application in which case ordinary summons shall issue. It may be argued that where the registrar writes the summons marks it undefended list, and passes it to the Judge who signs it, that the signature of the Judge signifies the court’s approval. The court must grant a summons in undefended list and thereafter it can be signed by any officer empowered to sign summons. A summon issued as an undefended suit without prior order of court that the suit be entered in undefended list, should be treated as a nullity. As a matter of general practice the summons for service should have attached to it the court’s Order for the entry of the suit in undefended list.”
The application for the writ of summons to issue on the undefended list must be by motion Ex parte, supported by affidavit. The Judge shall consider the application and make an order that the writ of summons be so issued. A summon issued as an undefended suit without prior order of the court that the suit be entered on the undefended list is a nullity.
A close and analytical examination of Order 22 rule 1 seems to show that a decision to place a suit on the Undefended List of the court under the Rules is always a judicial decision which must emanate from judicial proceedings and must be taken judicially and judiciously. The court’s discretion is exercised after giving due consideration to the affidavit of the plaintiff as to the propriety of granting the plaintiff’s application to place the claim on the Undefended List. If the trial Judge is satisfied that the case should be placed on the undefended list he shall mark the writ of summons issued in this regard “undefended list” and shall endorse it. The writ of summons signed by the judge or the court order in this regard is attached to the writ of summons and then served on the defendant or defendants. It is therefore a condition precedent to the invocation of his “undefended list” jurisdiction that the trial Judge must be fully involved in respect thereof and must personally take a decision, having regard to the material placed before him, whether or not to place a case in the undefended list. There is no provision express or implied that this crucial judicial determination can be delegated in any officer of the court. See Nwakama v. Iko L.G. of Cross River State (1996) 3 (Pt.439) 732 at 739.
In this present case on appeal, there was an application dated 6th January, 1995 addressed to the Registrar of the court applying for a writ of summons on the Undefended List to issue. The application was not by way of motion as provided under Order 8 Rules 2 and 3 of the Kaduna State High Court (Civil Procedure) Rules, 1987. There is no evidence from the record of appeal that the application was passed to the trial Chief Judge or that the learned trial Chief Judge ever saw the application, indeed, there is no evidence that the learned trial Chief Judge considered the affidavit of the plaintiff as to the propriety of granting the application to placed the suit on the undefended list. More importantly, there is no writ of summons marked “Undefended list” by the learned trial court with its endorsement, showing that the learned Chief Judge was satisfied that the suit be placed on the Undefended List. It seems to me the plaintiff’s application that the suit be placed on the undefended list did not receive the necessary consideration and endorsement of the court or its endorsement thereon. It is therefore manifest that the exercise of the court’s jurisdiction in placing the suit on the undefended list was not complied with. That is enough to oust the jurisdiction of the court. See Madukolu v. Nkemdilim (1962) 2 SCNLR 341: Ajanaku v. C.C.P. (1979) 3 -SC.28 Nwamaka v. Iko L.G. of Cross River State (supra) at page 739.
With all these defects in the procedure adopted by the plaintiff/respondent in initiating the suit, I have no doubt in my mind that the conditions precedent to the invocation of the court’s Undefended List jurisdiction has not been complied with in other words, the personal involvement of the trial Judge in placing a suit on the undefended list is a necessary requirement of order 22 Rule 1 of the Kaduna State High Court (Civil Procedure) Rules, 1987. From the record of appeal, it is my view that there is no evidence of such involvement on the part of the Judge in this case. I am therefore of the view that the procedure adopted in this case, is incompetent and every step taken there under is incurably defective. It amounts to a nullity, and void. See Saude v. Abdullahi (1989) 4 NWLR (Pt.116) 387; and Obeta v. Okpe (1996) 9 NWLR (Pt. 473) 401 at 445.
Having decided that the suit was not properly placed on the undefended list and the whole trial was incompetent and a nullity, the next question for me to answer is what is the appropriate order to make, in the circumstances.
It trite that where there is any defect in competence as in the present case, it is fatal to the proceedings and the proceedings are a nullity however well conducted and decided. See Madukolu v. Nkemdilim (supra) and Sanusi v. Ayoola (1992) 9 NWLR (Pt.625) 275 at 301.
The law is also settled that where it is found that the trial court has not jurisdiction to entertain the suit, the appropriate order to make is to strike out the suit so as to afford plaintiff another opportunity of coming properly with a fresh action before the trial court. See Anigboro v. Sea Trucks (Nig.) Ltd. 1995 6 NWLR (Pt.399) 35 at 60; and Gombe v. P.W. (Nig.) Ltd. (1995) 6 NWLR (Pt.402) 418 – 419.
Accordingly, with the outcome of the appeal on the first and second issues raised by the appellant and the only issue formulated by the respondent, I think, it is no longer necessary to go into the consideration of the other issues raised in the appeal. In the circumstances, the appeal succeeds and it is hereby allowed. The judgment of the Kaduna State High Court delivered on 23/1/95 in suit No. KDH/KAD/15/95 without jurisdiction to hear the suit on the undefended list is hereby set aside. The case is hereby remitted to the High Court Kaduna State, to be tried on the General Cause List. There shall be costs of (N2,500) Two Thousand, Five Hundred Naira to the appellants.
Other Citations: (2000)LCN/0672(CA)