THE UNDEFENDED LIST PROCEDURE: AN UNENDING DEBATE ON AN EXPARTE APPLICATION TO PLACE A SUIT THEREUNDER OR OTHERWISE

The Undefended list procedure recently caught my attention while reading through the pages of some new decisions of the apex court, the Supreme Court of Nigeria. Just like other well known procedural aspects of law that refuse to get buried in old reports, the mode of application for an Undefended list is still very much a contention, as it continues to appear over the years. Now in order not to mistaken
the topic, this short blog post intends to bring out the recent decisions on the form of action and a brief explanation of the controversies that have surrounded it, and questions whether the recent decisions of the Supreme Court represent the true intent of the wordings of the various Rules of Court.

The Undefended list procedure as a mode of summary judgment is sui generis, and from its name, one could easily decipher the meaning. Courts over the years have extensively dealt with the explanation and meaning of an undefended list procedure, which are usually a copious representation of what is contained under the first Rule of its Order in the Various High Court Civil Procedure Rules of  some of the states of the Federation making use of the procedure, and the Federal Capital Territory.

it is a simple procedure devoid of complexity of full trial and allows the claimant to obtain Justice without the rigour of having to go through the whole hog of delayed litigation which usually takes much time and resources. The idea is simple, once there is a claim for a liquidated money demand, the claimant is expected to make an application using the undefended list procedure as available in the Rules of the Court. The purpose of this blog post is particularly aimed at looking at what form of application or the necessary meaning of what an application connote  having regard to the recent decisions on it.

Certain decisions of the court of appeal had been at loggerheads on the proper interpretation of the mode of application for an undefended least action. One important issue which should be pointed out in the outset is that like any other form of procedure, the commencement of an action is very pivotal and once it is done in the wrong manner, it stands objectionable and could ruin the whole action for the plaintiff or claimant.

The Kaduna judicial division of the Court of Appeal had ruled in Cash Affairs Finance Ltd. v. Inland Bank (Nig) Plc (2000) 5 NWLR (Pt. 658) 568 that the proper mode of making an application to place a suit under the undefended list action is only by way of exparte application. This position was followed by a host of other decisions of the court, including Baba vs. Habib Nigeria Bank Ltd. (2001) 7 NWLR (Pt. 712) 496 and Imoniyame Holdings Ltd. Vs. Soneb Enterprises Ltd. (2002) 4 NWLR (Pt. 758) 618.

In a rather contradicting decision, the Ilorin division of the same Court of Appeal, in Kwara Hotels Ltd. v. Ishola (2002) 9 NWLR (Pt. 773) 604 held that the proper procedure to be followed is not through an ex parte application but that the procedure for application is complete by the filing of the necessary documents alone. This position was also maintained in Waade Investment Nig. Ltd v. Trade Bank Plc. (2006) All FWLR (Pt.336) 352.  For clarity purposes, the High Court civil Procedure Rules used in both cases had similar provisions (as they were both the old rules used under the then Uniform Rules) which were in pari materia. It provides thus:

 "Whenever application is made to a court for the issue of a writ of summons  in respect of a claim to recover debt or liquidated money demand 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 the suit for hearing in what shall be called the 'undefended list', and mark the writ accordingly, and enter thereon a  date for hearing suitable to the circumstances of the particular case"

The court in Cash Affairs' case had interpreted an application in line with the rule that whenever an application is to be made to a court, it should be by way of motion as provided under Order 8Rule 3 of the Old Kaduna State High Court Rules 1987 (the new 2008 Rules of the State does not have provisions for undefended list anymore, it only has summary judgment procedure under Order 11). By way of extension, the court gracefully acceded to the Appellant's argument by bringing out cogent reasons why the application should be by way of motion exparte. In a rather swift divergence from the decision in Cash Affair's case two years later, the Court of Appeal in Kwara Hotel's case held that the application is complete by filing the writ and affidavit alone, and not by way of exparte motion.

One interesting dimension to this point was the easy mode in which the Rules of the various courts began to change the wordings of the undefended list provision in their rules. This was a departure from the Uniform Rules as provided above. Apart from some other states that toed the line of Lagos state in making provisions for only Summary Judgement procedures (deleting the undefended list procedure totally) It became rather significant that the makers of the Rules of court took note of the dichotomy in the decisions and tried to correct that while making their new Rules of Court. Two Rules of Court will be used in demonstrating this. Order 21 Rule 1(1) of the Abuja Rules 2004 carefully avoided using the same words as provided in the old Kaduna Rules (which is in pari materia with the Uniform Rules) above, instead, it provides as follows:

 "Where an application in Form 1, as in the Appendix is made to issue a writ of summons in respect of a claim to recover a debt or liquidated money demand, supported by an affidavit..."

This clearly set the tone for an application to be way of a writ of summons (Form 1) and an affidavit alone, not therefore requiring an ex parte motion, or any motion at all before same would constitute an application. In a similar vein, the 2005 High Court Civil Procedure Rules of Kwara State has its own provision under Order 23 Rule 1 as follows.

" where a claimant files a writ of summons endorsed with a claim to recover a debt or liquidated money demand only and the writ is  supported by affidavit setting forth the grounds upon which the cause of  action is based..."

Interestingly, the decision in Kwara Hotel's case against an application vide an exparte motion was championed by Hon. Justice Onnoghen JCA and he also maintained the same stance in an another case (see Infomatics Co. And Telematics Ltd. Vs. Numdeen (2003) All FWLR (Pt. 175) 477). At His Lordship's elevation to the Supreme Court however, he seemed to have favoured the position of making an application for an undefended list through a motion ex parte. (See Ekulo Farms Ltd. Vs. U. B. N. Plc (2006) All FWLR (Pt. 319) 895. This recent trend in the decisions of the Supreme Court has therefore set a uniform tone for the mode of application to be by way of exparte motion as it was recently delivered in Obaro v. Hassan (2013) All FWLR (Pt. 687) 677 ( It should be noted however that the decision in Obaro's case was decided using the 1987 Abuja Rules and not on the 2004 Rules as the case was commenced under the old Rules).

A very stark view of the current trend was recently laid down in Bona V. Textiles Ltd vs. Asaba Textile Mill Plc (2013) All FWLR (Pt.669) 995 at 1011 where the apex court held thus:

" ... In other words, the procedure under the undefended list  commences with      the plaintiff's application for the issuance of a writ of   summons for a claim for liquidated money demand which application  is to be accompanied by an affidavit setting forth the grounds upon  which the claim is predicated and  stating that in the belief of the plaintiff or deponent to the affidavit, the   defendant does not have  any defence to  the action. It is entirely the  duty of the High Court to    which the application is made to consider same ex parte without hearing argument whether to hear the matter under the undefended list or transfer same to the general cause list to be so dealt with  accordingly..."

Thus, one could easily conclude that in order to be on the safer side, one should commence an undefended list action via a motion exparte. A little digression may be necessary here. Even though the provisions of the Kwara State High Court Civil Procedure Rules, 2005 tried to evade the use of the word 'application' and favours an application without the use of a motion exparte, Counsel to the claimant in Federal Polytecnic, Offa vs. U. B. A. Plc (2014) All FWLR (Pt. 737) 739 opted to commence by way of an exparte motion. Simply put, making an application by an exparte motion has been imbued into the practice and procedure of the undefended list action, even though the rules of court do not expressly provide for it. The hypothetical question would then be, why would any legal practitioner not follow the practice of making an application via a motion exparte?

The poser here however is that, does the current trend in the interpretation of an 'application' for an undefended list represent the true intent of the Rules of court (particularly the given examples in Abuja and Kwara above)? What are the pros and cons of making an exparte motion or otherwise? It has been argued that where a party comes by way of motion exparte, the plaintiff will indeed be ascertained whether or not the court is satisfied that his suit be placed on the undefended list. He will also be given an opportunity to know the exact judge who would be handling his case as he would have made an appearance ex parte prior to the date for hearing. These instances  would not only keep the plaintiff out of suspense, but also assist in the smooth running of the case, avoiding possible objections. In addition, the court will not be seen to be making an order not specifically sought for by the plaintiff, that is, seeking to place the suit under an undefended list.

On the other hand, the argument against an application via a motion exparte is not only as per the decisions in its favour alone. If filing a writ of summons and an affidavit constitute an application on its own, a motion exparte to file the application would constitute 'double applications' which would also amount to paying filing fees for both. This instance of tagging it a 'double application' runs against the spirit of the summary judgment procedure which the undefended list seeks to protect; saving time and cost of litigation. Moreso, since the application is by way of a writ of summons, making an exparte motion to commence an action predicated on a writ of summons seems rather illogical.

As far as stare decisis is concerned, it is advisable to make an exparte motion while applying for an undefended list. Presently in some states of the federation, the practice is not to file an exparte motion, a claimant simply files the writ and affidavit and same constitute an application for an undefended list action. In other states, even though the Rules do not provide for an exparte motion, the general practice is to still file one in order to bring the action under an undefended list. This latter procedure is given credence as it has more support from our apex court.

What is your view on the position and how is the application for an undefended list made in your jurisdiction (if applicable).