Chief A. Y. Ojikutu Vs Alhaji A. A. Ojikutu (1970)

COKER, J.S.C. 

The appellant before us was the defendant in an action instituted against him in the High Court, Lagos, by the respondent (as plaintiff) whose writ was endorsed for claims for account in respect of properties known as 3, Jagun Lane and 91, Victoria, now Nnamdi Azikiwe Street, Lagos. Pursuant to an order of court the plaintiff filed a statement of claim on the 30th April, 1969. Before the time ordered for the filing of the statement of defence and indeed on the 6th June, 1969, learned counsel on behalf of the defendant filed a motion pursuant to the provisions of order 28 of the Supreme Court (Civil Procedure) Rules which are the rules applicable in the Lagos High Court asking  for an order “that this suit be dismissed without any answer upon questions of fact being required from the defendant”.
The motion came up for argument before Adedipe, J. and counsel on both sides addressed the court at length referring to a number of authorities on the scope and effect of order 28 rule 1. At the end of the day the learned trial judge, according to his notes, stated as follows:
“Court: Case struck out with 10 guineas costs.”

The defendant has now appealed to this court complaining that the learned trial judge ought to have dismissed the plaintiff’s case and not strike it out as he had done. The argument before us on behalf of the defendant is that on an application under order 28 rule 1 of the Supreme Court (Civil Procedure) Rules the judge cannot strike out the suit but must dismiss it or order a statement of defence to be filed in view of the clear provisions of order 28 rule 3. At the appeal, although served with the hearing notice, the plaintiff was neither present nor represented and so we did not obtain any assistance from the side of the plaintiff.
Order 28 referred to in the argument of learned counsel provides as follows:
“1. Where a defendant conceives that he has a good legal or equitable defence to the suit, so that even if the allegations of the plaintiff were admitted or established, yet the plaintiff would not be entitled to any decree against the defendant, he may raise this defence by a motion that the suit be dismissed without any answer upon questions of fact being required from him.
2. For the purposes of such application, the defendant shall be taken as admitting the truth of the plaintiff’s allegations, and no evidence respecting matters of fact, and no discussion of questions of fact, shall be allowed.
3. The court, on hearing the application, shall either dismiss the suit or order the defendant to answer the plaintiff’s allegations of fact, and shall make such order as to costs as shall be just.”
Clearly, rule 1 of that order applies in a case where the defendant, even after admitting all the facts averred in the statement of claim, still claims that in law the plaintiffs’ claim is not made out and the consequences of a determination of this issue in his favour are set out in rule 3. It is beyond argument that rules 3 require the court either to dismiss the action or to order that a statement of defence be filed in answer to the claim.

We have already pointed out that all the judge stated at the end of the arguments was that the action was struck out with 10 guineas costs. He gave no reasons whatsoever for arriving at this decision and none indeed for taking the course of striking out the action in the face of the clear mandatory provisions of order 28 rule 3 that either the suit should be dismissed or a statement of defence should be ordered to be filed. We cannot emphasise too strongly the necessity for a judge to write a judgment. The rules of court pre-suppose that the judge should do so (see order 36 of the Supreme Court (Civil Procedure) Rules applicable in the High Court of Lagos). It was argued before us, not without justification that in deciding to strike out the case of the plaintiff the learned trial judge had impliedly determined that the plaintiff’s case was not made out even on the assumption that the defendant had admitted all the facts pleaded. Such it must be, but we consider it unfair that such a matter should be left to counsel or to conjecture by this court. We think it is the duty of the judge to whom the arguments were addressed to make a specific finding on this issue and to pronounce judgment in accordance with the applicable rules of court.
In the present case we are satisfied that the learned trial judge did come to such a conclusion as has been put forward in his argument by learned counsel for the defence. That being so and in accordance with the rules (in particular rule 3) the course open to the judge is as stated in the rule and definitely not one of striking out the action as he did. We must conclude therefore, as indeed we do, that the learned trial judge was in error of law when he proceeded to strike out the plaintiff’s case. He should either have dismissed it or ordered a statement of defence to be filed. He did neither and as we are in no doubt as to the real situation we think the proper order to make is one of dismissal of the plaintiff’s case.

The appeal succeeds and it is allowed. The order of Adedipe, J. in suit no. LD/155/69 of the 23rd June, 1969, is hereby set aside. It is ordered that the plaintiff’s case should be dismissed and this shall be the order of the court. We do not interfere with the order for 10 guineas costs made by the High Court but we order that the costs of the appeal fixed at 50 guineas be paid by the respondent to the appellant.

Other Citation: (1970) LCN/1819(SC)