This is an appeal against the judgment of the High Court of Delta State sitting at Sapele delivered by Hon. Justice E.N. Emudiainohwo wherein the learned trial judge awarded the sum of N10,488,678.80 to the Respondent.

The Respondent by a Motion Ex-parte pursuant to Order 23 Rule 1 of the High Court (Civil Procedure Rules) 1988 of the defunct Bendel State then applicable to Delta sought that the Writ of Summons regarding the suit be placed on the undefended list. The Respondent had attached exhibits to buttress his prayers in the said motion.

The trial Court granted the order as prayed and ordered that the Writ of Summons bemarked undefended and placed on the undefendedlist, service was ordered on the defendant now Appellant. The Appellant’s counsel filed a notice of intention to defend with a supporting affidavit after being served with the court process.

On the return date, both counsel addressed the Court based on the affidavit evidence filed by them. The Respondent argued that judgment be entered in his favour, but it was the contention of the Appellant that the matter be transferred to the general cause list. Judgment was entered in favour of the Respondent.

Dissatisfied, the Appellant appealed to the Court of Appeal through a Notice of Appeal filed containing one ground of appeal wherein two issues for determination were raised as follows:

Whether the case before the trial Court was properly brought under the undefended list inaccordance with the provision of Order 23 Rule1 of the High Court (Civil Procedure Rules)1988 of the defunct Bendel State now applicable to Delta State.
Whether the failure by the Respondent tocomply with the provision of Order 23 Rule 1 ofthe High Court (Civil Procedure Rules) 1988 ofthe Defunct Bendel State now applicable toDelta State, is a fundamental defect capable of rendering the Writ of Summons and consequently the proceeding null and void.
The Respondent in his brief identified one issue for determination, the Court however adopted the first issue identified by theAppellant.

Appellant’s counsel submitted that the procedure under Order 23 Rule 1 of the High Court (CivilProcedure Rules) 1988 of the Defunct Bendel State applicable to Delta State is a special procedure ofplacing certain category of cases under the undefended list, to facilitate expeditious determination of non-contentious cases. Counsel further submitted that the decision to place a case on the undefended list is a judicial function of a presiding judge who is empowered to exercise his discretion after giving due consideration to the processes before the Court.

Appellant’s counsel posited that the Writ was markedas undefended before the order was given and thattakes away the jurisdiction of the trial judge to hearthe matter. See Nwakama v Iko L.G.A ofCross River &Ors. (1996) DTLR pg 112 at 113ratios 1 & 2, Drexel E and N Res v Trans Int’lBank Ltd (2009) Vol. 15 W.R.N pg 1 at page 10ratio 2, JagalPharma Ltd v Hussaini (2008) 14W.R.N pg 160-167 ratios 1-6.

Counsel further contended that the Respondent hasto first apply to Court to list the matter asundefended and the grant of such application is acondition precedent to the exercise of the Court’sjurisdiction and as such, the lower Court lackedjurisdiction to entertain the suit since the provision ofOrder 23 was never complied with by theRespondent. The exercise of the Court’s discretion inthe matter was never sought and granted. Counselcited ACB Int’l Bank Plc v Out (2008) All F.W.L.Rpt 406 pg 1817 at 1820 ratio 2, Confex Limitedv Nigeria Arab Bank Limited (1997) 2 N.W.L.R(Pt. 496) pg 643 ratio 1; (1997) LPELR-882(SC), City Eng (Nig) Ltd, vNAA (1999) N.W.L.R (Pt. 625) pg 76 ratio 1,2,6; (1999) LPELR-867(SC)and Drexel E and N Res v Trans Int’l BankLimited (Supra).Appellant’scounsel urged this Court to allow the appeal.

Respondent’s counsel, argued that there is nothing under Order 23 Rule 1 of the HighCourt (Civil Procedure Rules) 1988 of the defunctBendel State as applicable to Delta State thatrequires an applicant for a Writ of Summons underthe undefended list to apply directly to the judge orany other person than the registrar for the issuance of a Writ of Summons as provided for in Order 5 Rule1 of the High Court (Civil Procedure Rules) 1988.

Counsel submitted that the Respondent is only required to complete and submit the pro forma Writ to the registrar of the Court who will determine, bythe accompanied documents, whether the Writ is oneto be placed on the general cause or undefended listwho, based on the supporting affidavit, can infer that the case is one the Respondent wished to haveplaced on the undefended list.

Counsel insisted that in this case, the Writ of Summons was placed on the undefended list upon the order of the Court and theWrit remains a valid Writ of Summons. Counsel cited Waade Investment Nig. Ltd &Anor v TradeBank Plc(2006) All F.W.L.R. Pt 336 pg 352and Order 5 Rule 1 of the HighCourt (Civil Procedure Rules) 1988 of the DefunctBendel State now applicable to Delta State.Counsel argued that it is the registrar or any otherofficer of the Court that marks the Writ “undefended”and Appellant’s position that it is after the Court Order is made that the Writ of Summons is enteredunder the undefended list procedure is deemedissued is fallacious.

That the trial judge is notconcerned with the issuing of the Writ of Summonsbut with the placement of the Writ in the appropriatecause list for hearing. Counsel cited Order 23 R 1. Respondent’s counsel argued that even if the Writwas marked before the Order of Court was given; it does not invalidate the Writ.

Counsel cited Abayomi&Anor v Attorney General Ondo State (2007)All F.W.L.R. (Pt. 391) Pg. 1683 at 1686 R.7 & 8,and said that even if the Writ in this case ought notto have been issued before the Order of the trialjudge placing the Writ on the undefended list, thefact that there is no appeal against the Order madeon the 26/05/09 in favour of the Respondent, theCourt should apply Order 2 R. 1(1) of the High Court(Civil Procedure) Rules of the defunct Bendel Stateas applicable to Delta State and treat the situation asan irregularity which will not nullify the proceedingsor any document, judgment or order given by thetrial Court and as such, the Appellant has waived hisright to complain. Counsel cited Ramadan Nigeria Limited &Anor vAfribank Plc. (2005) All F.W.L.R (Pt. 285) pg482 at 486 R. 8 and 9, Barr. EdwardEhimwenmaOsifo&Anor v Okogbo CommunityBank Ltd (2007) All FWLR (Pt 372) pg 1803 at1810 R. 9 and 10, Ezekiel Okoli v MorecabFinance (Nig) Ltd (2007) All F.W.L.R (Pt. 369)pg 1164 at 1170 R. 10 and 11; (2007) LPELR-2463(SC) and urged thisCourt to dismiss the appeal.


The Court stated that the rules provide that a suit may be placed by thetrial Court on the undefended list where it is inrespect of a claim to recover a debt, liquidatedmoney demand or any other demand where the debt is clear and there is no defence against it after perusal of the affidavit filed by the defendant in support of the notice of his intention to defend the suit.

The Court reviewed the facts on record and the sole ground of appeal and stated that the Appellant who was defendant at the trial Court is not disputing the amount of money or in any other way trying to negate the claim; his complaint is with the regularity of the process the Respondent used at the trial Court to activate judicial process to get the money back. The Court set out the following steps to be followed by the applicant as plaintiff to activate the undefended list procedure thus:

An application must be made to the Court for the issuance of a Writ of Summons. (Ostensibly, the application was made hence the issuance of the writ by the Registrar filed on 18/05/09).
The application must be to recover a debt, liquidated money demand or any other claim. (The endorsement on the writ showed a demand for the liquidated sum of N10,488,678.80).
iii. The application must be supported by an affidavit setting forth the grounds upon which the claim is based. (The affidavit filed with the motion ex-parte set out the factual basis of the claim in support of the writ).

The affidavit must state that the deponent believes the defendant has no defence. (Paragraph 12 of the affidavit declared that the defendant has nodefence to this suit).

The Court should enter the suit for hearing on the undefended list if it believes there is indeed no defence. (In this case, after considering the motion ex-parte on 26/05/09, the trial Court declared that the suit be placed on the undefended list, marked undefended and all processes served on theAppellant who was the defendant).

The Court shall mark the writ of summons accordingly. (In this case, the writ was marked “undefended”)
vii. The Court shall set a suitable date for hearing. (The Court set a date- 11/06/09 for hearing as shown on the order). See Nkwo Market Community Bank (Nigeria) Ltd v Paul EjikemeUwaabuchi Obi (2010) LPELR-2051 SC; (2010)14 NWLR (Pt.1213) 169 S.C.

From the above, the Court held that it is clear that the general position is that a Writ of Summons should be marked undefended by the Court before it be placed on the undefended list. See Bayero v Mainasara&Sons Ltd (2006) 8 NWLR (Pt. 982) Pg. 391; (2006) LPELR-75587 CA, Nwakanma v IkoLocal Government of Cross Rivers &Ors(Supra), Enye v Ogbu(2003) 10 NWLR (Pt.828) Pg. 403; (2003) LPELR-7152 CA, Obaro v Sale Hassan (2013) LPELR-20089 SC.

Relying on the authority of Olubusola Stores v Standard Bank (1975)LPELR- 2610; (1975) 1 All NLR 125; (1975) 4SC 37, the Court stated that it is clear that a plaintiff starts the processby applying for a Writ of Summons. The Writ must be filed with a motion on notice supported by affidavit. That it is that same Writ that would be markedundefended AFTER the Order of the Court and served on the Defendant along with other processes. That EveryWrit is issued by the Registrar of the Court.

The Court agreed with Respondent’s counsel that the purport of Order 23 is not to mandate the judge to issue a Writ of Summons but the placement of the Writ in the appropriate cause list for hearing. In essence, what the trial judge did was not issuance of Writ of Summons on the undefended list by the Order made on the 26th May, 2009. See WaadeInvestment Nig. Limited &Anor v Trade BankPlc (Supra).

It was held that there is a presumption of regularity in favour of the Writ of Summons that it was marked after the Order had been given by the trial judge and not before and that even if the Writ was indeed marked ‘undefended’ by the Registrar before the Order was given, the act hasbeen regularised by the Order of Court given on the26th May, 2009. That it is trite that the breach of practice and procedurecan only render a proceeding irregular and not a nullity. See Saliba v Lababedi (1972) 12 S.C.197; (1972) LPELR-2993(SC) Agbakoba v INEC (2008) 18 NWLR (Pt.1119) 489 SC; (2008) LPELR-232 SC.

In the circumstances, the sole issue for reasons stated above was resolved against the Appellant. The appeal was dismissed.

Edited by LawPavilion. Citation: (2015) LPELR-25585(CA).

Practical Considerations to Negotiate an Enforceable Joint Operating Agreement in Civil Law Jurisdictions (Netherlands: Kluwer Law International, 2020) By Professor Damilola S. Olawuyi, LL. B (1st Class), BL (1st Class), LL.M (Calgary), LL.M (Harvard), DPhil (Oxford), Professor of Law and Deputy Vice-Chancellor, Afe Babalola University, Ado Ekiti, Nigeria, & Professor Eduardo G. Pereira, LL. B (Brazil), LL.M (Aberdeen), PhD (Aberdeen),   

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