PROCEDURE FOR THE APPLICATION TO LIST A SUIT UNDER UNDEFENDED LIST ITS DEFENCE WHEN LISTED BY IBRAHIM MUHAMMAD USMAN

The undefended list procedure is for kind of special procedure that has been provided for in the Civil Procedure Rules of most of the State High Courts in the country. It is a unique and peculiar procedure in the determination of civil cases which aims to fasten decisions by the High Court without going through the rigors of a normal or unusual trials by pleadings and calling for oral evidence in proof of claims made therein. Its general primary purpose is to enable the trial courts to decide expeditiously, claims for liquidated money demands; ascertained or fixed amount of money determined and agreed to by the parties and which was due for payment by a defendant to a plaintiff. It is meant to be employed and used by the parties and the courts in straight forward cases, the facts of which by the averments in the affidavits of the parties to be considered by the court, do not prima facie show that there is a reasonable defense to the claims made therein. The procedure is one by which a High Court can enter judgment in favor of a plaintiff as per the claims endorsed on the writ and supported by the averments contained in the plaintiffs' affidavit in any one of the following situations:

a.      Where a defendant did not file a notice of intention to defend accompanied by an affidavit disclosing a defense on the merit or,

b.     Where after a consideration of the notice of intention to defend along with the affidavit supporting it, the High Court finds or holds that a defense on the merit was not disclosed by the defendant.

Notably therefore, although the procedure enables a plaintiff to obtain judgments quickly without a full trial, yet it ensures that a defendant was given adequate opportunity of a hearing before such judgment is entered against him. Thus, the procedure guarantees and ensures that the defendant is not shut out in the procedure for the determination of cases placed under it by the High Court. See Fesco Nig. Ltd. N. R. & C.P. Co. Ltd. (1998) 11 NWLR (573) 227; UTC v. Pamotei (1989) 2 NWLR (103), 244; Dalko v. UBN Plc (2003) FWLR (180) 1500; Dala Air Services v. Sudan Airways (2004) ALL FWLR (238) 684." Per GARBA, J.C.A. (Pp 27-29,Paras F-B)

The nature of Undefended list and the procedure for placing a suit under that list is adequately illustrated vide the following judicial pronouncement as follows:

As earlier noted, the appellant's action was commenced under a special procedure known as "Undefended List Procedure". By this procedure, generally the action is commenced by an application by the plaintiff for issuance of a writ of summons by the Registrar of the High Court concerned. The application is usually made exparte, though it could be by ordinary application, whereby the other party is not to be involved at that stage of the proceedings.

The application is to be supported by an affidavit to which the proposed claim against the defendant must be attached with any other documents considered relevant and available to the applicant as exhibits. The judge shall order that a writ of summons be issued by the Registrar and to be marked as "Undefended List" after having taken the application and the court, upon consideration of all the bundle of documents filed, is satisfied that the case is one fit to be brought under the undefended list. In other words, the writ of summons as an originating process under Order 23 of the High Court (Civil Procedure) Rules is a specially and peculiarly endorsed writ of summons.

It should be noted that the writ of summons initiated pursuant to this rule and under this procedure cannot be issued by the Registrar prior to the presentation and consideration of the application for issuance of same by the court. Otherwise, it goes without saying, that such writ of summons which is issued before the court's order so to do becomes incompetent and shall be liable to be declared a nullity by the court. See; Cash Affairs Finance Ltd. V. Inland Bank (Nig) Plc (2000) 5 NWLR (pt 658) 568 at 587, Idris V. Archibong (2001) 9 NWLR (Pt.718) 447 at 457 and 459, Equity Bank of Nigeria Ltd. V. Halilco Nigeria Ltd. (2006) 7 NWLR (pt 980) 568; Bayero V. Mainasara & Sons Ltd. (2006) 8 NWLR (Pt.982) 391 at 425; (2006) 36 WRN 136." Per ARIWOOLA, J.S.C.

On the purpose of an application to placing a suit under undefended list, the court said, the purpose of Undefended List procedure:

"It is trite that the purpose of Order 23 of the High Court (Civil Procedure) Rules - under Undefended List procedure is for obtaining summary judgment without proceeding to trial requiring calling of witnesses. The rule is for disposing with dispatch, cases which are virtually uncontested." Per ARIWOOLA, J.S.C.

There are certain precedential requirements for placing a suit in an undefended list, the requirements for the application of the Rules on Undefended List procedure as has been posited by the court as:

"...for the Rules on Undefended List procedure to successfully apply and enable the court to proceed to summary judgment, the following preliminary requirements must exist:

a.      The defendant must not only have been served with the required processes, he must also have entered appearance.

b.     A claim must have been indorsed on, or attached to the writ of summons served upon the defendant.

c.      There must be a definitive affidavit (which is evidence on oath) verifying the cause of action and the amount claimed and also that the defendant has no defense to the action.

d.     The defendant must not have filed a defence to the action. See; Chief Harold Sodipo V. LemninKainen Oy & Anor (No. 2)(1986) 1 NWLR (pt 15) 220 at 230-231, per Eso, JSC.

On the action initiated pursuant to the Rules on Undefended List Procedure, this Court had opined as follows - per Eso, JSC at page 231 of Chief Harold Sodipo V. LemninKainen (supra):

"An action in the undefended list, following these Rules, is not a real substitute to trial of actions, but it serves the purpose of reducing congestion in the courts, by way of creating an avenue for the speedy determination of actions. If a defendant is served with a writ and a statement of claim, and he enters an appearance to the action, having read the affidavit that he has no defense, he cannot be seen to complain after, that he has not had a fair trial."

There is no doubt the procedure under undefended list Rules is a bit technical and must be understood properly to be of benefit to parties employing it and the court." Per ARIWOOLA, J.S.C.

The procedure to be followed in bringing a suit under undefended list "an application being made to court for issuance of a writ of summons is to be accompanied with a supporting affidavit and other necessary and relevant documents to be considered by the court to make a firm decision, before the adversary is brought in, whether or not the action is fit for trial under the undefended list. Yet, after the court is convinced that with the facts disclosed in the endorsed claim, the affidavit and if any, the documents attached as exhibits, a writ is ordered to be issued by the Registrar, there shall then be delivered by the plaintiff to the Registrar upon the issue of the writ of summons as stated in rule 1 of Order 23, as many copies of the said affidavit as there are parties against whom relief is sought, and the Registrar shall then annex one such copy of the affidavit to each copy of the writ of summons for service on the defendant(s). See; Order 23 rule 2 (supra). In other words, the plaintiff is expected to file a definitive affidavit as evidence on oath separately, verifying the cause of action, the amount being claimed and state clearly that the defendant does not have a defense to the action. Where the writ of summons served on the defendant by the court upon issuance under undefended list procedure does not have the required definitive separate affidavit, the defendant cannot be said to have been served with the required processes." Per ARIWOOLA, J.S.C.

Practice and Procedure for the Defendant’s Notice of Intention to Defend a Suit that is Placed under the Undefended List

Having seen the meaning, practice and procedure on how an application is made to place a suit under undefended list, the law is trite that this practice is not meant to shut a defendant who has a prima facie case to defend the claims placed against him even if the case has been listed under undefended list, the effect of which, if he succeeds in proving his case before the court will translate into relisting the case under the general cause list. The law in achieving this, has placed a certain laid down procedure which entitled a defendant when he/she is served with a writ of summons and other relevant court processes in an undefended list procedure.

What is expected of the defendant when served with the writ of summons and affidavit of the plaintiff, placed under the undefended list is given a meticulous exigency by the court as follows:

"If the party served with the writ of summons and affidavit delivers to the Registrar a notice in writing that he intends to defend the suit, together with an affidavit disclosing a defense on the merit, the court may give him leave to defend upon such terms as the court may think just."

The requirements of these provisions are that:

a.      that the party to served, i.e. the defendant be served with the writ of summons and affidavit of the plaintiff,

b.     that the defendant when served and if he intends to defend the claims of the plaintiff, shall: i) delivered to the Registrar of the court a notice of intention to defend, ii) an affidavit disclosing a defense on the merit.

If a defendant meets up with the above requirements, the court shall look at the averments in the affidavit accompanying the defendant's notice of intention to defend, consider and then decide whether a defense on the merit is disclosed to the claims of the plaintiff. If a defense on the merit was disclosed in the affidavit, the court may grant leave to the defendant to defend the action and consequently, transfer it to the general cause list for hearing. Where a defense on the merit was not disclosed, the court may refuse leave to defend and proceed to decide the action as undefended and may enter judgment at once or still require the plaintiff to call evidence, if it thinks fit." Per GARBA, J.C.A (Pp. 28-29, paras. A-A).

The court went further to comment on the implication where a defendant failed or neglected to deliver to the Registrar a notice of intention to defend as provided by the Rules:

“Similarly, where a defendant failed or neglected to deliver to the Registrar a notice of intention to defend as provided by the Rules, the court may enter judgment for plaintiff, as an undefended action or still call on the plaintiff to prove it as the court may think just. See order 23, Rule 3(2), 4 and 5 of High Court Rules. See Oloko v Ibe (2004) ALL FWLR (227), 562, (2004) 17 NWLR (903)647; Abdullahi v. Buhari (2004) 17 NWLR(902) 278." Per GARBA, J.C.A (P. 29, paras. A-B).

The attitude of the courts in the consideration of whether a defendants affidavit discloses a defence on the merit is one of liberalism as enunciated by the Supreme Court in the case of Macgresor v N.M.B (96) 2 SCN J,72 at S2 where it stated that:

"As a general principle, where a defendant shows that he has a fair case for defense or reasonable grounds for setting as a defense, or even a fair probability that he has a bona fide defense, he ought to have leave to defend." See also Jipreze v Okonkwo (1987) 3 NWLR (62) 737; Santory v Elaben (1998) 12 NWLR (579) 538 at 544. Furthermore, the law is that in determining whether a defendant has a good defense or has disclosed such facts as would or may be deemed sufficient to entitle him to defend, it is not necessary for a trial court to decide at that stage whether the defense disclosed in the affidavit has been established. All that is required is simply to look at the facts deposed to and see if it can prima facie afford a defense to the action. See G.M.O.N. & S. Co. Ltd. v. Akputa (2010) 1 NWLR (1200) 443 at 478; Okamba Ltd. v. Sule (supra); Sam v FMG (1990) 4 NWLR (147) 688; Agro Millers Ltd. v. C.M.B. (1997) 10 NWLR (525) 469." Per GARBA, J.C.A. (Pp 30-31,Paras C-B).

Similarly, where the defendant failed succeeded in proving material facts before the court which show to the court a prima facie case to defend, the court is left with no option than to transfer the suit to the general cause list and hear same by mandating parties to call witnesses and argue their pleadings, the court reiterated this position of law as thus:

"It is sufficient to transfer the matter to the general caus e list if the defendant's affidavit discloses a triable issue or there is a difficult point of law involved; that there is a dispute as to the facts which ought to be tried, that there is a real dispute as to the amount due which requires the taking of an account to determine or any other circumstances showing reasonable grounds of a bona fide defence. See: Ataguba v. Gura (Nig.) Ltd. (2005) 6 MJSC 156. Where the defendant fails or neglects to file a notice of intention to defend with an affidavit in support, or where the affidavit in support of the notice of intention to defend discloses no defence, the case shall not be transferred to the general cause list. See: Pan Atlantic Shipping v. Rhein Mass GMBH (1997) 3 NWLR (Pt.493) 248; Okunriboye v. Skye Bank (2009) 2 - 3 MJSC 42." Per OTISI, J.C.A. (P 61,Paras A-D)

In conclusion, in one of the elegant dictum of the living Oracle of law, Justice Niki Tobi of the blessed memory, he referred to justice as not a one way traffic but a tripartite one, and in relation to this substantive issue. It is justice to the plaintiff who seeks to obtain judgement, justice to the defendant who thinks or claim to have a defense and justice demands the he should be heard, and lastly, justice to the society at large because they would be at the receiving end, the judgement that is granted today serves as a binding precedent or persuasive as the case may be due to the hierarchically structured legal system of the country, if it turns good, it is good for the society at large and if horrific, subsequent justice consumers would bear it.

 

 

By: Ibrahim Muhammad Usman (police)

Faculty of Law

Bayero University Kano(300 level)

imuhammadusman66@gmail.com

08145101965