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.
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.
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.
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.
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.
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:
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.
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:
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.
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).
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:
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?
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.
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.
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.
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).
position and how is the application for an undefended list made in your
jurisdiction (if applicable).
Last modified: August 5, 2023
The controversy regarding the mode by which a Court or a Judge is expected to place a cause on the undefended causes list is bound to be an unending one. This is because the Rules of the various High Courts are differently worded which would necessitate different interpretation being placed on them.
For instance in Kwara State, one would tend to agree with the position of the court that a Claimant will have to move the Court by way of an application before a suit could be placed on the undefended causes list. Order 23 Rule 1 of the High Court of Kwara State Civil Procedure Rules 2005 stated that “the Judge shall, if satisfied that there is no defence to the suit……..”The employment of the above wordings by the law makers will give an impression that a Judge will have to be satisfied in a judicial manner as opposed to an administrative exercise of the Court or Judge’s discretion. That is, the Claimant will apply to the Court for the action to be placed on undefended causes list and will satisfy the Judge by the reasonableness of the facts deposed to in the supporting affidavit. Thus the decisions of the court in cases such as Ahmed V.Trade Bank Plc (1996) 3 NWLR (Pt. 437) 445 and W.A.C. Technical vs. Anglo-Canadian Cement Coy. Ltd (1966) NMLR 349 are bound to be good law given the peculiar High Court Rules placed before the Supreme Court in those cases.
Perhaps we can have a better point to convince a Claimant that he has to file a separate application to move the Court to place the matter on undefended causes list if we advert to some other ways by which the draftsman can couch the wordings of the Rules. Where it is provided that”the Judge upon being satisfied by the affidavit filed in support of the writ of summon shall place the action on undefended causes list. Clearly from the above wordings every discerning mind will be convinced that a Claimant needs not file separate application before the action could be placed on undefended causes list. Obviously it has been left to the Judge to determine the issue on his own, independent of an application.
Submit that the controversy is centered around the interpretation of the Rules of Court and it should be borne in mind that where the provisions of an enactment is clear and unambiguous the Court shall be at liberty to Interpret the provisions by giving them their ordinary grammatical meaning. Thus there bound to be an unending controversy on this issue as the Supreme Court will often be invited to determine the point under the divergent rules of the various High Courts.
The whole controversy could however be brought to an end by having a uniform Rules concerning the procedure for the placement of the action on undefended causes list.
As someone who is trying to brush up his knowledge of court procedures in Nigeria. This information was very useful. Thanks
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This piece is very good especially for a person like myself who is an undergraduate student of Law in the university of Jos, Nigeria.Keep on giving us more on procedural law please.
Thanks so much for the knowledge.