Bello Adeleke V. Falade Awoliyi & Anor (1962)

LawGlobal-Hub Lead Judgment Report

ADEMOLA, C.J.F

On 13th March, 1962, we allowed this appeal. These are the reasons we indicated we shall give later why the appeal was allowed.

The appeal was from an interlocutory judgment delivered by Doherty, J. in the High Court of Ibadan on 2nd November, 1959, striking out a case for declaration of title to land and injunction on the ground that a statement of claim was not filed.

The facts, which are not controverted, are shortly as follows: The plaintiff was granted an extension of time to file his statement of claim. Before the time expired he filed a statement of claim as well as a Motion to join one Amusan Odofm as 2nd defendant. It would appear Counsel for plaintiff anticipated the event because in the statement of claim he included the said Amusan Odofin as the 2nd defendant. At the hearing of the Motion to join the said Amusan Odofm, it was discovered that the man had died. Counsel therefore withdrew the Motion leaving the statement of claim unamended. A few weeks later the defendants’ Counsel filed a Motion asking for leave to join as 2nd defendant Amuda Odofm, son of the deceased Amusan Odofm. The order was granted on the 7th August, 1958. On the 19th January, 1959, the learned Judge in the presence of Counsel on both sides fixed 27th to 29th October, 1959, for hearing of the case. On the 26th October, 1959, the defendant’s Counsel filed a Motion praying the Court to strike out the plaintiffs’ claim for want of prosecution in that a statement of claim had not been filed in accordance with the original order made on 25th November, 1957, and that the time to file one had expired since 24th June, 1958. The learned Judge, after hearing Counsel on both sides struck out the claim with 30 guineas costs to the defendant. From that interlocutory judgment the plaintiff, with the leave of the Judge, appealed to this Court.

It is part of the duty of a Judge to see that everything is done to facilitate the hearing of an action pending before him. Wherever it is possible to cure an unintentional blunder in the circumstances of a case and it will help to expedite the hearing of an action, the court is to award costs against any delinquent party rather than dismiss or strike out a case for a fault in the proceedings prior to hearing of the case. Thesiger, LJ. in Collins v. Vestry of Paddington (1880) 5 Q.B.D. 368 at pp. 380 and 381 put it in these words:-

I agree that until a judgment has been arrived at upon the merits, an extension of time may be allowed for rectifying a mistake or oversight. Up to that time both parties may be considered as standing upon an equal footing: the questions between them are still open, and it is doubtful which of their opposing contentions is correct: each party has a right to have the dispute determined upon the merits, and Courts should do everything to favour the fair trial of the questions between them. 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. All such cases of blunder may be remedied by payment of costs or the imposition of terms and conditions.

In the present case, it is obvious that a statement of claim had been filed; this cannot be ignored. That statement of claim made certain averments against the 1st defendant which had not been controverted. It was filed within time, having been filed on the 20th June, 1958.

When the 2nd defendant was joined by Order on the 7th day of August, 1958, it was done in the absence of the plaintiff’s Counsel, but no order was made by the Judge that he should be served by the plaintiff with an amended writ and statement of claim. If the learned Judge had examined carefully the record before him, he would have discovered on the 26th January, 1959, when he fixed the case of hearing, that the case was then not ripe for hearing. Counsel for the defendant himself should have known this, he probably was aware of it. His duty then was to have called attention to the unsatisfactory position of the pleadings and asked for consequential Orders to be made in view of the previous Order he obtained in the absence of the plaintiff’s counsel. Instead he allowed the Judge to fix three days for the hearing of the case. Then he waited nine months. Four days to the hearing date he filed a Motion praying the Court to strike out the plaintiff’s claim for want of prosecution alleging that no statement of claim had been filed. He made no reference to his own default: it was by his default the three days set down for hearing of the case were lost to the Court because it was obvious the Judge did no other work on those days. Instead of making the defendants’ Counsel pay in costs for his default the learned Judge wrongly, in my view, visited the sin on the plaintiff’s Counsel by striking out the case. That Order was clearly wrong and must be set aside.

In the circumstances, the Order striking out the case is hereby set aside.

For these reasons we allowed the appeal. It is ordered as follows:-

That the case be put back on the List in the High Court at Ibadan and proceed to hearing. Fresh pleadings should be ordered. The 2nd defendant having been joined, the Court is to make consequential Orders as to service and filing of pleadings in that regard.

The appellant is entitled to costs of this appeal which is assessed at 15 guineas, and also to costs of the Motion before the High Court which is assessed at 6 guineas.

Other Citation: (1962) LCN/0993(SC)