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  • 2003-10-27
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Carleen Nigeria Ltd. vs. U.B.A. Plc.

CARLEEN NIGERIA LIMITED

ALHAJI ALI MUSA HAMZA

V

UNITED BANK FOR AFRICA PLC.

COURT OF APPEAL

( JOS DIVISION )

IBRAHIM TANKO MOHAMMAD, JCA ( Presided )

OLUDADE OLADAPO OBADINA, JCA

ISA ABUBAKAR MANGAJI, JCA ( Read the Lead Judgment )

CA/J/55/2000

THURSDAY, 16TH MAY, 2002

ACTION - Action under undefended list - Commencement of - Conditions precedent thereto

ACTION - Undefended action - Meaning of

APPEAL - Reply brief - Aim and objective of

COURT - Assumption of jurisdiction by court - What it presupposes

COURT - Decision to grant or refuse an application to place a suit on undefended list - Need for court to state reasons therefor

COURT - Issues that are academic - Need for court not to indulge in

COURT - Relief not claimed or proved by a party - Whether court will grant

JURISDICTION - Assumption of jurisdiction by court - What it presupposes

PRACTICE AND PROCEDURE - Court processes - Service of - Essence of

PRACTICE AND PROCEDURE - Hearing notice - Failure to issue and serve same - Effect thereof

PRACTICE AND PROCEDURE - Hearing notice - What amounts to

PRACTICE AND PROCEDURE - Undefended action - Meaning of

PRACTICE AND PROCEDURE - Undefended list - Application for leave to place suit thereunder - Mandatory requirement under Order 23, rule 1 of High Court of Plateau State (Civil Procedure) Rules 1987

PRACTICE AND PROCEDURE - Undefended list procedure - Application to commence a suit thereunder - Form to be adopted - Whether application to be made by motion ex-parte

PRACTICE AND PROCEDURE - Undefended list procedure Commencement of action thereunder - Condition precedent thereto

WORDS AND PHRASES - Hearing notice - What amounts to

WORDS AND PHRASES - Undefended action - Meaning of

Issues:

1.              Whether a party who was put on notice (against a particular date) but was absent must again be notified against the date to which the matter is adjourned for hearing.

2.              Whether an application is requisite for the initiation of an action under Order 23, rule 1 of the High Court (Civil Procedure) Rules, 1987 of Plateau State and if the answer is in the affirmative what is the effect of non-compliance.

Facts:

This appeal emanated from the ruling of Damulak, J. sitting in the High Court of Justice, Plateau State in suit No. PLD/J/118/96 dated 5/6/98 wherein he entered judgment against the appellants as defendants on an application under the undefended list procedure.

The  appellants applied for and were granted an overdraft in the sum of N900,000.00 (Nine hundred thousand naira) on 24th March, 1983 and accordingly executed a floating debenture and a contract of guarantee. The overdraft could not be settled as agreed wherein the respondent filed an action against the appellants claiming the sum of N24,836,387.12 together with the interest in the said sum at the rate of 21% per annum from 26th January, 1998 until judgment and thereafter, at the rate of 21% until total liquidation.

When the suit came up for hearing, the learned trial Judge considered the writ worthy for placement on the undefended list of the cause list of  court, marked it accordingly and adjourned the case to a specific date. Finding it difficult to effect service on the appellants, the respondent applied for and was granted an order of substituted service with the return date for the hearing of the substantive suit filed on 12/5/98.  In terms of the order for substituted service, the appellants were duly served against that date. When on 12/5/98, the suit came up for oral argument, the appellants and their counsel were absent. The trial court ruled that 12/5/98 falls short of the 30 days required for service outside jurisdiction and consequently adjourned the matter to 5/6/98 in order to enable the appellants file their notice of intention to defend. On 5/6/98, without proof of service of the adjournment to 5/6/98, the trial Judge heard the case and delivered a considered ruling granting the respondent the reliefs contained in its writ.

Dissatisfied with the ruling, the appellants filed a motion praying the court to set aside its said ruling of 5/6/98 on the ground of non-issuance and service of hearing notice. The application equally failed as it was held to be without merit. Aggrieved by this, the appellants appealed to the Court of Appeal. The Court of Appeal in consideration of the appeal considered Order 23, rule 1 of the High Court (Civil Procedure) Rules, 1987 which provides thus:

1. Whenever application is made to a court for the issue of writ of summons in respect of a claim to recover a debt or liquidated money demand or any other claim 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 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.