J.S. Sonuga And Others V Chief Kehinde Anadein And Others (1967)

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ADEMOLA,C.J.N.

This is an appeal against the ruling of Madarikan J. In the High Court of Western Nigeria, made on 30th November, 1964, striking out an action before him on the ground that the writ of summons failed to comply with Order 2 rule 1 of the High Court of Western Nigeria (Civil Procedure) Rules.

Order 2 rule 1 of the High Court (Civil Procedure) Rules is as follows:-

“Every action shall be commenced by writ of summons, which shall show the cause of action and be endorsed with a statement of the nature of the claim made, or of the relief or remedy required in the action.”

The prescribed form of the writ shows the space for endorsement on the reverse side.

In the present case the plaintiff’s solicitor, on the 23rd day of May, 1963, filed a writ in the High Court of Western Nigeria, and instead of writing the endorsements on the reverse side of the form pasted a sheet of paper on which the claims have been typed, on the reverse side of the form.

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The writ was served and the case was first called on the 2nd of July, 1963. On the 15th July, 1963, pleadings were ordered: Statement of Claim and plan were filed on the 4th October, 1963, and on the 14th day of January, 1964, a Statement of Defence was filed. No objection was taken to the writ in limine and indeed, the Statement of Defence takes no objection to the writ.

The case was called for hearing on 13th day of February, 1964, and after four adjournments at which counsel on both sides were present, hearing commenced on 22nd September, 1964. At this hearing objection was taken to the writ as stated earlier. The learned judge after hearing counsel on both sides struck out or quashed the writ. From that order the appellant has appealed.

Counsel for the appellant sought to distinguish this case from the case of Janet Alatede v. Joseph Jeje Falode and another S.C. 137/66 (unreported) decided in this court on 6th May, 1966, which was an appeal before us and in which case objection to the writ was made in limine. In that case, this court said:

“The defendant does not allege that he has suffered, or that he fears that he might suffer, any prejudice. The question is a purely domestic one, touching the practice of the High Court, and involving no judicial decision on the merits of the case. In our view it is peculiarly within the province of the judges of the High Court to settle such a question, and this court ought not to reverse the decision of the court below unless it is clearly shown to be based on a misunderstanding of what the Rules of Court required.”

Having expressed our views in the matter we left it to the High Court to settle its own domestic affairs. It seems to us however that whilst there is an agreement among the judges of the High Court of Western Nigeria concerning objections taken in limine in regard to claims written out and pasted on the reverse side of forms of the writ there is a divergence of opinion when objections are raised after pleadings have been filed, and Indeed, at the hearing.

In the appeal before us, the question appears to be, is it right for the defend-ant to take advantage of an irregularity he had himself accepted or led the plaintiff to believe he had accepted and had acted on it, without any harm done to him? We think it is now too late for him to raise an objection. In the case of Dickson v. Law and Davidson [1895] 2 Ch. D. 62, where an amended writ served out of jurisdiction did not bear the endorsement prescribed by an appendix to the Rules of Court for a writ to be served out of jurisdiction, it was held that the defendant is not entitled to take an advantage of an irregularity occasioned by a slip which has been made by the plaintiff and which has done no harm to the defendant.

In our opinion, the learned judge in the Instant case was wrong to have struck out the action before him. The case is distinguishable from Alatede v. Falode (supra) where objection was taken in limine.

This appeal will be allowed. The case is sent back to the High Court for hearing on its merits and determination. It is ordered that the 25 guineas costs awarded by the learned judge be hereby set aside; costs in the High Court will await the event. In this court costs in favour of the plaintiff/appellant assessed at 50 guineas.

Other Citation: (1967) LCN/1494(SC)