Alhaji Sama Mohammed & Ors V. Alhaji Bala Musawa (1985)
LawGlobal-Hub Lead Judgment Report
Wali, J.C.A.
By a writ of summons issued out in the Sokoto High Court on the undefended list, the plaintiff, Alhaji Bala Musawa claimed against the defendants Alhaji Sama Mohammed, Isa Abdullahi and Sama Construction Company jointly and severally the sum of N12,876.28 being balance of money due to be paid to the plaintiff by the defendants on a building contract job carried out by the former at the request of the latter.
After service of the writ on the defendants they jointly filed a Notice of Intention to Defend and were accordingly allowed to defend the action and the suit was transferred to the general cause list in compliance with Order 3 Rule 10 of the Sokoto State High Court (Civil Procedure) Rules, 1976. Pleadings were accordingly ordered and plaintiff was allowed 7 days within which to file statement of claim while the defendants were given 30 days from the date of service of the statement of claim on them, to file statement of defence.
This order was made on 24/2/84.
When the case came up for mention on 16/4/84, it was shown that defendants were served with the statement of claim on 6/3/84, but no statement of defence was filed. At the request of the defendant’s counsel in person of Mr. S. D. Olodo who was also absent in court that day, the case was adjourned to 17/4/84.
On 17/4/84, S. M. Salihu appeared for the plaintiff while one Mr. Ezerayi appeared for the respondents. S. M. Salihu learned counsel for the plaintiff informed the court that he had already filed an application for judgment against the defendants in the absence of any statement of defence when he was just served with a copy of an application for extension of time by the defendants, within which to file statement of defence.
The learned trial Chief Judge, after reviewing the history of the Suit to date said-
“Today 17/4/84, while the learned plaintiff’s counsel was moving his application, an application for extension of time to file statement of defence was filed on behalf of the defendants. It was passed to the Court by the Court Registrar in Court. It is therefore not before the Court and I did not pay any heed to it. (Italics mine)
The learned Chief judge proceeded to consider the plaintiff’s application for judgment in default of defence at the end of which he entered judgment for the plaintiff in the said sum of N12,876.82 as claimed on the writ with costs assessed at N200.00
The defendants filed into Court an application dated 19/4/84 praying the Court to set aside the default judgment and also to allow them to defend the action. The application was moved on 9/5/84 and after hearing from counsel representing applicants/defendants and the respondent/plaintiff respectively, Ruling was reserved to 18th May, 1984.
On 18/5/84 in a considered Ruling, delivered by the learned Chief Judge, he dismissed the application. As a result of the Ruling the defendants filed in the High Court a motion for a stay of execution of the default judgment pending the determination of the defendant’s appeal against it by the Court of Appeal. This was granted on 21/6/84.
Henceforth, both the defendants and the plaintiff shall be referred to in this judgment as the “appellants” and the “respondents” respectively.
Three grounds of appeal were filed and argued by Mr. S. O. Olodo, learned counsel for the appellants. The arguments were contained in his brief filed pursuant to Order 6 Rule 1 of the Court of Appeal Rules, 1981. He also elaborated orally on some salient points contained in the brief.
Under ground 1 of the grounds of appeal, learned counsel complained that the learned Chief Judge was in error when he refused to entertain his application for extension of time within which to file defence, when the same had already been filed in Court. He submitted that an application of this nature could be made several times and the Court had the unfettered discretion to either grant or refuse it. He cited the following cases to buttress his submission – Ali Abuu Salem v Nwadike 6 ENLR 207 and Schafer v Blyih (1920) 3 KB 163.
In ground 2 thereof learned counsel submitted that it was an error of law on the part of the learned trial Chief Judge to refuse to set aside the default judgment when S.12(6) of the Judgment (Enforcement) Rules made under the Sherriff and Civil Process Law Cap. 23 Laws of Northern Nigeria applicable to Sokoto State and on which the learned Chief Judge relied, provides that Court with the power to set aside any such judgment. He concluded his arguments on this ground by submitting that the failure to set aside the judgment has occasioned miscarriage of justice. He referred to the following cases as an authority in support of his submissions – Edward Owetah Omadide v Chief J. O. Adajeroh & 2 Others (1976) 12 SC 97 at page 97 and Bech v. Value Capital Ltd (1976) 2 All ER 102 at page 109 (a).
His submission on ground 3 is to the effect that the learned trial Chief Judge did not exercise his discretion judiciously when he refused to entertain the appellant’s application for extension of time within which to file statement of defence. He cited the cases of N.A. Williams & Ors. V. Hope Rising Voluntary Funds Society (unreported judgment of this Court in FCA/L/45/78) and Atwood v Chichester (1878) 3 QBD 722 at 723.
He urged this Court to allow the appeal, set aside the judgment and orders of the trial Court, extend the time within which to file statement of defence and order the same to be tried before another judge of the same Sokoto High Court.
Learned counsel for the respondents on his part, filed brief in reply to that of the appellants. He also made oral submissions to highlight some of the salient points raised in his brief and the oral submissions made by the appellant’s counsel.
On ground 1 learned counsel submitted that not only did the appellant show lack of interest in defending the case but also that the purported application for enlargement of time to file a defence did not comply with Order 8 Rule 17 of the High Court Civil Rules, 1976. He cited the following decisions to back his submissions N. A. Williams & Ors. v. Hope Rising Voluntary Funds Society (1982) 1 – 2 SC 145; Revici v. Frentice Hall Incorporation & Others (1969) 1 All E. R. 772 at 774.
On ground 2, the learned counsel submitted that both the affidavit and the proposed statement of defence fell far short of what is required for the Court to exercise its discretion in the appellants’ favour. The affidavit did not explain cogently the reason for failure to file the defence within time and that the proposed statement of defence did not reveal prima facie defence on merit. He referred to Banque Genevoise De Commerce et-de Credit c. CIA Mardi Di Isola Spetsai (1962) 1 All NLR (PT 3) 496 at 499; Farden v. Richter (1889) 28 QBD 124 at 129; Idamu Ugwu & Anor v. Nnaji Aba & Anor (1961) All NLR 438 and S. J. Momoh v. Gulf Assurance (1975) MNLR 94 to buttress his submission.
His reply on grounds 3 is to the effect that since the appellants’ application did not satisfy the provisions of Order 8 Rule 17 of the High Court Civil Procedure Rules, 1976, there was nothing before the court on which its discretion could be exercised. He further said he adopted the relevant parts of his arguments on grounds 1 and 2 to cover this ground.
The issues raised in this appeal and which call for determination are three fold and can be briefly set out as follows –
- Was the learned Chief Judge right in his refusal to entertain the appellants’ application for extension of time within which to file a statement of defence on the pretext that the respondent had already filed an application for leave to enter judgment in default of defence?
- Was he right when he said “while the learned Counsel for the plaintiff was moving his application (for leave to enter judgment in default of defence), an application for extension of time to file statement of defence was filed on behalf of the defendants. It is therefore not before the Court and I did not pay any heed to it”?
- Was he also right in stating among the reasons for refusing the appellants’ application praying that the default judgment be set aside “that a counter-claim is a separate action (and) should not be a reason for re-opening a finished case. The appellants can sue the respondent separately. Therefore I find that the respondent would be embarrassed and prejudiced if the case is re-opened”?
It is not disputed that the appellant had filed his application for extension of time within which to file a defence and counter-claim. The application bore the date of 17/4/84 and on the submissions of the learned counsel for the respondent before the Ruling, I would be on safe grounds if I say that the application for extension of time to file defence and counter-claim was filed on the same 17/4/84. The respondent’s counsel admitted he was served with the application on that date inside the Court Room. What seems to be in contravention of Order 8 Part IV Rule 17 is failure to give two clear days notice between the service of the application and the day it seemed to have been fixed for hearing. The correct approach on the given circumstance is either to adjourn the application to another suitable date so that Part IV Rule 17 of Order 8 could be complied with or if the Court is ready to entertain the application to ask the respondent if he is ready to go on thus waiving the two clear days notice. If the answer to the second alternative is affirmative, then the Court will proceed to hear the application and consider it on merit. If on the other hand the respondent insists on the two clear days notice, the court will adjourn the motion to another suitable and convenient date to it, and in the present case, the motion for judgment will have to be equally adjourned pending the consideration of the application for extension of time to file a defence and counter-claim.
It is wrong of the learned Chief Judge to block out the appellant on their application when same had been undisputedly filed in Court. The mere fact that he was not aware of it before hand does not amount to “not filing” what had already been filed. A document is deemed to have been properly filed in Court when same is deposited in a Court Office with the proper Court Officer assigned with that responsibility. See Re Commercial Union Assurance Co. Ltd (1899) 18 NLR 585. See also Words and Phrases Legally Defined Vol. 2 D – H at 241.
As rightly pointed out by the learned counsel for the appellants the fact that the application is brought after the time allowed to perform the act for which permission to perform is now being sought, or that the respondent’s counsel was about to move his application for leave to enter judgment in default of defence when an application for extension of time within which to file such a defence was served on him in Court, is no sufficient reason for the learned Chief Judge to refuse audience to the appellants, thus ignoring the contents of the proposed statement of defence and the counter-claim.
On the question that the counter-claim is a separate action and the appellant can institute fresh action, I think the stage to make such a pronouncement has not been reached. The learned Chief Judge can only say so after he has considered the application. It is now like putting a cat before the horse, thus failing to observe the maxim of audi alteram partem.
The provisions of the law on this type of situation is clear. Unless there is an unreasonable delay in making the application or apparent and deliberate neglect on the part of the applicant to prosecute his defence, or that the proposed statement of defence does not reveal a defence on the merit, the attitude of the Court is always to lean towards the applicant to put in his defence so as to have the case decided on merit in order to avoid miscarriage of justice – Fari Kwaham v. Foud Michael Elias 5 FSC 224 particularly at page 231 where Abbot FJ, while considering an appeal against a default judgment entered under Order 2 Rule 12(b) of the Judgments (Enforcement) Rules which is in pari materia with Order 12 Rule 12(b) of the judgments (Enforcement) Rules made under the Sheriff and Civil Process Law Cap.23 of Laws of Northern Nigeria applicable in Sokoto State said –
“….it is quite plain that to allow the High Court order entering judgment for the plaintiff to stand might, and probably would work considerable injustice not only to defendant but very likely to other persons as well…”
Generally, in all cases of this nature, the Court has the unfettered discretion instead of proceeding to judgment to give leave to the defendant to perfect the default if justice demands that the Court should take that course – Wallersteiner v. Moir (1974) 3 All ER 217
Having found that the learned Chief Judge is wrong in his Ruling wherein he stated his reasons for refusing to accommodate the appellants application, I will now proceed to consider in brief whether he is right in refusing to grant the subsequent application to set aside the default judgment.
It goes without saying that where the learned Chief Judge was found to be wrong in refusing to entertain application to extend time within which to file a statement of claim and counter-claim he would also be wrong in refusing to set aside a default judgment entered following his refusal of the first application. This, I so find.
I shall now proceed to examine the application for extension of time to file a statement of defence and counter-claim on its merit.
The printed record shows that the order for filing pleadings was made on 24/2/84 after transferring the suit to the General Cause List. On that date respondent was given 7 days to file statement of claim and the appellants 30 days thereafter to file statement of defence.
On 16/4/84, it was shown that the appellants had been served with the statement of claim on 6/3/84. On that date the appellant was 10 days out of time, but his counsel, who was not in court that day had written to the Court praying that Court to adjourn the case to 17/4/84 and this was acceded to. On 17/4/84 Ezeroye appeared for the appellant and informed the Court that they had filed an application for extension of time within which to file defence.
From the foregoing the appellant was 11 days out of time when he made the application. I would not say 11 days is inordinate delay.
The reasons given for failure to file a defence within time stated in paragraph 5, 6, 8 and 9 are not very strong but yet, having regard to the statement of claim, the proposed statement of defence and the proposed counter-claim, the justice of the case demands that he be given leave to defend, particularly taking into consideration paragraph 8 of the proposed statement of defence and the proposed counter-claim.
All that is required at this stage is to give a defaulting defendant an opportunity to correct his default in the interest of justice and to that extent he is required to file an affidavit explaining his default and a statement of defence which would, if proved, constitute a defence to the action – John Holt & Co. Liverpool Ltd. v. Henry Fajemirokun (1961) All NLR 492.
Looking at the proposed statement of defence and the counter-claim, I am satisfied that it has raised a defence on the merit. Where a plaintiff is able to show that he has a good defence on the merit, judgment should not be entered. He should be granted an extension of time within which to file such defence – Wallernsteiner v. Moir (supra). See also Forden v. Ritcher (1889) 23 QBD 124.
The appeal is allowed. The decision of the lower Court is set aside and in place thereof, the following orders are made:-
- That time within which to file statement of defence in the lower court is extended by 21 days from the date of this order.
- That the case be given accelerated hearing before another judge of the same Sokoto High Court.
- That having regard to the conduct of the appellant in the matter of filing defence, he shall pay the costs of N200.00 in the court below. While N150.00 costs in this appeal is awarded in his favour.
Other Citations: (1985)/LCN/0011(CA)
