Dr. Olatunji Abayomi V. Attorney-general, Ondo State (2006)

LawGlobal-Hub Lead Judgment Report

ALI ABUBAKAR BABANDI GUMEL, J.C.A.

This is an appeal against the decision of Ondo State High Court, Akure delivered on 8th day of June, 2004 in Suit No. AK/121/2004. By a writ of summons dated and filed on 28th May, 2004, the Plaintiffs/Appellants claim against the Defendant/Respondent as follows:

(a) The sum of N10,000,000.00 (Ten Million Naira) only as legal fees for filing, processing and registration of Citadel Bank for Ondo State;

(b) An order directing the time within which the payment or other act is to be made or done, reckoned from the date of the judgment or order or from some other point of time and also directing the defendants to pay the interest of 10% upon any judgment, commencing from the date thereof or afterwards, as the case may be.

This writ was accompanied and was filed along with a 16 paragraph statement of claim. Along side these 2 processes, the Plaintiffs/Appellants also filed a motion Ex-parte seeking leave of the court below to issue, mark and place the writ of summons on the undefended list. This application was made pursuant to Order 23 Rule 1 of the Ondo State High Court Civil Procedure Rules and under the inherent jurisdiction of the court. This motion was supported by a 7 paragraphs affidavit with so many copious documents attached thereto. This motion was argued before the learned trial Chief Judge on 8th June, 2004. After the arguments of learned counsel, the court below proceeded to give its ruling wherein it decided:-

“I have carefully considered the processe (sic) filed in this case and the submission of the learned counsel for the plaintiffs and I am of the view that this is not a case that can be pleased (sic) under the Undefended List. However, this is not to say that by this order the court is pre chiding (sic)” the plaintiffs from claiming against the Defendant, rather what it is saying is that the procedure adopted is not the appropriate one they can still file pleading in the normal way if they so desire. In the present circumstances, therefore, the present application is refused and consequently struck out.”

In a notice of appeal dated 22nd June, 2004, and predicated on 2 grounds of appeal the Appellants seek for an order of this court setting aside the decision of the trial court delivered on the 8th June, 2004 and also for an order directing that the cause of action be heard by a different judge of the High Court of Ondo State. From the grounds of appeal, the appellants, in their appellants’ brief filed on 10th November, 2004, identified and put forward 2 issues for determination in this appeal. They are as follows:

1. Whether the learned trial Judge properly considered the application brought before him, under the undefended list and consequently whether the learned trial judge took the correct steps notwithstanding the plethora of authorities before him to have the suit struck out without marking same as undefended or placing the suit under the general cause list as otherwise provided by the High Court Rules; and
2. Whether the learned trial judge was right in holding that the plaintiffs’ case is not one that can be placed under the undefended list; and whether the learned trial judge was right in holding that the procedure adopted by the plaintiffs is not the appropriate one.

On his own part, the Respondent formulated a single issue for determination and it is:-

(a) Whether the learned trial judge was right by refusing to grant the plaintiffs/Appellants’ application for leave to issue, mark and place the Writ of Summons on the Undefended List and consequently striking out same.

At the hearing of this appeal on the 25th September, 2006, learned counsel to the Appellants, Mr. Orumen referred to, adopted and relied on the Appellants’ brief. In his arguments on the 1st issue, learned counsel, Mr. Orumen began by highlighting the premise upon which the decision of trial Appellants’ brief. In his arguments on the 1st issue, learned counsel, Mr. Orumen began by highlighting the premise upon which the decision of trial court was predicated. He went on to point out that the court below was of the view that the procedure adopted by the plaintiffs is not the appropriate one and that the plaintiffs can still file pleadings in the normal way if they so desire. After this prelude, Mr. Ommen set out to demolish the pillars upon which the court below founded its decision.

According to learned counsel, Mr. Orumen, to bring an action under the undefended list procedure an applicant has to strictly comply with Order 23 Rule 1 of the Ondo State High Court Rules. He added that in an action for recovery of debt or liquidated money demand, there must be an application to the court for the issue of a writ of summons which must be accompanied by an affidavit setting forth the grounds upon which the claim is based and the belief of the deponent that there is no defence to the action. He referred to KWARA HOTELS LTD. V. ISHOLA (2002) FWLR (PT. 135) 789 and RIVERS STATE GOVERNMENT V. SPECIALIST KONSULT (FWLR) (PT. 72) 1893 and explained that after going through the affidavit and the court is satisfied that there is no defence to the action, it will then enter the suit for hearing under the undefended list and mark the writ of summons accordingly. Learned counsel went on to underscore the key features, in the provisions of Order 23 Rule 1 (supra), more particularly with reference to the application contemplated in rule 1. He once again referred to KWARA HOTELS LTD. V. ISHOLA supra) and submitted that the application envisaged by Order 23 Rule 1 (supra) is one done by the completion of FORM 1 in the appendix to the Rules which must accord with the provisions of Order 6 Rule 1 of the Ondo State High Court Rules. Learned counsel maintained that the completion of FORM 1 coupled with an affidavit constitute the application upon which the court, if satisfied, will enter the suit under the undefended list further to which the writ will be marked and issued accordingly.

In the opinion of learned counsel, Mr. Orumen, it is clear from Order 23 Rule 1 that the only time the court will refuse placing or marking a suit under the undefended list is when the affidavit of the applicant does not disclose sufficient grounds to warrant so doing. Learned counsel referred to the cases of FIRST BANK OF NIGERIA LTD. V. KHALADU & ORS. (1993) 9 NWLR (PT. 315 14 and J. BAERTHLE & CO. LTD. V. LIMA SERVICES LTD. (1992) 1 NWLR (PT. 217) 273 to explain in greater detail the entire undefended list procedure under the various rules of Order 23 and the nature and character of a judgment made thereunder. To drive his position home, learned counsel submitted that a court cannot suo motu strike out a case under the undefended list procedure because the rules have made ample provisions as to the step by step handling of any such application. He then offered to say that what a court faced with that application could do was to decline to designate the action as an undefended list suit and transfer same to the general cause list if it was not satisfied that the grounds as disclosed by the affidavit in support did not support or merit the action being placed under the undefended list. In another explanation, learned counsel said that assuming, though without conceding, that there was a defect in the application filed before the lower court by the Plaintiffs/Appellants, that should not be a sufficient ground to warrant the action being struck out in its entirety. He then maintained that striking out the suit was a superfluous and an unnecessary burden on the Appellants and went further to opine that substantial justice should prevail over form embodied in technical rules. Learned counsel Mr. Orumen referred to UNION BANK OF NIGERIA PLC. V. EKULO FARMS LTD. (2001) FWLR (pt.67) 847 and FALOBI V. FALOBI (1976) 9-10 SC 1 and submitted that a court should not allow mere form to deter it in the path of doing justice between the parties before it.

On the decision of the learned trial Chief Judge that the plaintiffs/Appellants can still file pleadings in the normal way if they so desired, learned counsel submitted that this decision amounts to taking the matter outside the provisions of Order 23 Rule 1. He urged us to hold that this decision of the court below is not supported by the rules and therefore perverse. He also urged us to disregard it as what the learned trial Chief Judge should do was to have placed the suit under the general cause list and not to strike out the suit. Learned counsel added that striking out the suit and asking the plaintiffs/Appellants to file pleadings in the normal way amounted to putting undue hardship on them. In closing his arguments, though without any reference to his 2nd issue, learned counsel Mr. Orumen pointed out that the court below was clearly wrong in introducing the issue of filing pleadings in the normal way in respect of cases that fall under the undefended list. He referred to the case of OJO V. VICTINO FIXED ODDS LTD. 9 NWLR (PT. 673) 649 AT 660-661. He urged us to allow the appeal on the basis that the court below was wrong to have struck out the suit on the basis that this suit was not one that could be placed on the undefended list.

Also at the hearing of the appeal before us, learned counsel to the Respondent, Uche Anesoh-Anebui adopted, relied and referred to the Respondent’s brief which was deemed to have been filed on 14th April, 2005. After reproducing the provisions of Order 23 Rule 1, learned counsel to the Respondent submitted that the Appellants did not comply with its requirements. According to learned counsel, Order 23 Rule 1 requires the Appellants to file an affidavit stating the grounds upon which the Defendant is believed to have no defence. Learned counsel referred to a part of the ruling of the trial court at page 52 of the record of appeal. While agreeing with the view of the court below, learned counsel pointed out that the Appellants confused the affidavit required in support of the application setting forth the grounds upon which the claim is based and stating that in the deponents belief the Defendant has no defence thereto whatsoever with an ordinary affidavit in support of an ex-parte motion.