A. Y. Ojikutu V. Francis E. Odeh (1954)

LawGlobal Hub Judgment Report – West African Court of Appeal

Practice and Procedure—Defence put in late but before judgment—Judgment for plaintiff—Hearing on merits desirable.

Facts

“Blunders must take place from time to time, and it is unjust to hold that because a blunder during interlocutory proceedings has been committed, the party blundering is to incur the penalty of not having the dispute between him and his adversary determined upon the merits per Thesiger, L.J., in Collins v. Vestry ofPaddington (1880), 5 Q.B.D.

The relevant rule requires the defendant to put in his notice of intention to defend and affidavit of grounds of defence, against a claim on the undefended list, five days before the hearing.

Defendant’s solicitor put them in two days before. At the hearing plaintiffs solicitor asked for judgment; defendant’s solicitor said it was his fault in not reading the rule and asked for time to put in an affidavit to that effect; but the trial Judge refused and gave judgment; and the defendant appealed.

Held

The Judge ought to have given the defendant permission to file an affidavit on terms.

Appeal allowed; judgment set aside; case remitted with directions.