Jagal Pharma Limited V. Alhaji Salisu Hussaini (2007)

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ABUBAKAR ABDULKADIR JEGA, J.C.A.

This is an appeal from a final and two interlocutory decisions of his Lordship Justice S.H. Makeri of the Kaduna State High Court of Justice and which decisions and or rulings were delivered by the Honourable Judge on 21st July 2000, 4th April 2000 and 20th June 2000 respectively.

The facts of this case as can be gathered from the record of proceedings before the court are as follows: The respondent had in a suit initiated under the undefended list (Order 22 Rules 1-4 of the Kaduna State High Court (Civil Procedure) Rules 1987) sued the appellant for the sum of N3,250,000.00 and 10% interest rate on the judgment sum until final liquidation and the cost of instituting the suit.

The learned trial Judge had heard arguments on several interlocutory applications two of which are very relevant in this appeal-

(i) An application to set aside the writ for non compliance with relevant statutory procedure and to strike out the action for abuse of process. This is at pages C1-C4 of the record, the counter affidavit at pages F1 – F3; and the Ruling dismissing it at pages 5- 13. The appellant had by a Notice of Appeal (pages 44-47) of the printed record) appealed but on reflection found that leave to appeal was necessary.

(ii) An objection (pages E1 record on the commencement of the suit on the undefended list without specifically asking for leave to do so. The court dismissed it (pages 20-23 of the printed record).

By a Notice of Appeal dated 1st August 2000 at pages 48 and 49 of the printed record, the appellant appealed from the decision entering judgment for the respondent in the substantive hearing by the undefended list procedure. The appellant had filed a Notice of Appeal against the interlocutory decision of 4/2/00 within time. The appellant abandoned the Notice which is at pages 44-47 of the record as some grounds therein are of mixed law and fact. The Honourable coming on 12/3/03 granted extention of time to seek leave and extention to the appellant to appeal in respect of the two interlocutory decisions set out above. The appellant accordingly filed Notices of appeal in respect of them within the extended time.

Taking the two interlocutory appeals and the final appeal together as frequently counseled by the Supreme Court there are 7 grounds of appeal. The first three are on the final appeal, three on the Ruling on the interlocutory application at pages C1-C4 of the record .and one on the Ruling on the objection at page E1 of the record. Out of the total seven grounds of appeal, the appellant formulated three Issues for determination. The Issues are as follows:-

(1) “Had the court below jurisdiction to have heard the Suit having regard to the following matters

i. that leave was not sought to place the suit into the undefended list.

ii. that the writ and ancillary processes had been filed before leave was sought by the respondent to proceed against the appellant who reside outside the jurisdiction of the court below.

iii. that the writ though to be served outside the jurisdiction was not endorsed within the statutory 30 days.

(2) Is the court below right in its conclusion that the suit was not an abuse of court process considering the suit of the appellant against the respondent in the High Court of Lagos.

(3) Did the court below demonstrate a proper understanding of the defence presented by the appellant and if it did, was it right in its conclusion that no defence was disclosed to necessitate the removal of the suit into the General Cause List from the undefended list.”