Waade Investment Nig. Limited & Anor V. Trade Bank Plc. (2005)

LawGlobal-Hub Lead Judgment Report

IKONGBEH, J.C.A.

The appellants herein were the defendants before the High Court of Kwara State, sitting at Ilorin. This appeal is from the ruling of that court refusing to strike out the respondent’s writ of summons at the appellants’ instance. The respondent, as plaintiff had, on 19/3/02, applied through its solicitors for the issue of a writ of summons against the appellants, claiming what they regarded as a liquidated money demand. The solicitors made the application by filling out a pro forma writ as in Form 1 in the appendix to the Kwara State High Court (Civil Procedure) Rules, 1988, which was marked at the top “undefended list,” and submitting same to the registrar of the court. The pro forma writ was accompanied with a 16-paragraphed affidavit to which were attached some documents by which the plaintiff conceived that the defendants were indebted to it.

On the very day that the pro forma writ was submitted to the registrar he signed and dated it, signifying the issuing of it. Three days later, on 22/03/02, the plaintiff’s solicitors filed a motion ex parte on its behalf seeking-

“(i) Leave and order of this Honourable Court, placing, hearing and determining this suit as an undefended list action in line with the undefended list procedure of the rules of the Honourable Court.

(ii) And for such further or other order(s) as the court may deem fit to make in the circumstances.” (Italics mine).

The motion was supported by an 8-paragraphed affidavit and was heard and granted by J. A. Olaiya, J., on 11/04/02. His ex parte order read:

“It is hereby ordered that leave is granted to the plaintiff/applicant to issue and serve the writ of summons in the case under the “undefended list” and the writ shall be so marked.

This case is adjourned to 17th day of May, 2002, for hearing.” (Italics mine).

The writ, issued as aforesaid, together with an attached copy of the rolled-up order containing the above directive, was served on the defendants, who through their own solicitors, filed a notice of preliminary objection on 02/05/02 to the hearing of the suit. The sole ground for the objection was that –

“The Honourable Court cannot exercise jurisdiction to entertain this suit, the writ of summons having been issued before the order of court was made to that effect.”

(Italics mine).

As can be seen from the stated ground, the complaint on behalf of the defendants was not that the registrar did not issue the writ by signing the pro forma as he was expected to do under the rules. The complaint was that he issued it prematurely and without what in the defendants’ counsel’s view, was the requisite authority. It was clearly the view of the solicitors that an order of court was required for the writ to be validly issued. As the writ in this case was issued at a time when the court was yet to make any order to that effect, it was, the argument went, a nullity.

A. Afolayan, J., before whom the matter eventually came, took arguments for and against the objection on 14/10/02. The learned Judge delivered his ruling on 08/11/02, overruling the objection on two main grounds. It was his view, firstly, that the power of the Judge to give directives regarding matters to be placed on the undefended list did not in any way detract from the registrar’s powers under the rules to issue a writ by signing it in his own time. It was his view also that, in any case, the allegedly premature signing of the writ by the registrar was, in the circumstances of this case, a mere irregularity, which had not been shown to have occasioned any miscarriage of justice. On the first point he observed and ruled thus at page 61 of the record:

“It is to be noted that it was after the filing on 19th March, 2002, that motion ex parte brought pursuant to Order 8 rule 1 and Order 23 rule 1 dated 22nd day of March, 2002, was brought for placing, hearing and determining this suit under the undefended list. To my mind and sense of justice in this matter in the interpretation of Order 23 rule 1, the application for placement of a writ of summon under the undefended list is when the formal application is made to court for same. In my respective (sic) view, the motion ex parte dated 22nd March, 2002, and filed 25th March, 2002, with the attached affidavit in support satisfies the requirement of Order 23 rule 1.